Responsible Communication (4) ~ Two Sides to Every Story
By Brian Madigan LL.B.
The Supreme Court of Canada recently dealt with the matter of defamation. The Court decided that there should be a new defence to such an action based in libel and slander, and that is : "public interest responsible communication".
After dealing with the issue of public and private, the Court has come up with eight (8) tests for responsible communication. These rules apply whether you are the editor of a national newspaper chain or an amateur blogger sending your opinions into cyberspace.
The Court poses the following question:
Was Publication of the Defamatory Communication Responsible?
The Court offered some important guidelines to assist in the determination in Grant and Torstar. Reproduced below is criteria, comments and guidelines drawn from the Court's Judgment, "word for word", without commetary. However, the headnote shown in italics in each point, is mine. They do not appear in Judgment. They are simply there to assist your review and analysis of the decision.
"One of the relevant factors that may aid in determining whether a defamatory communication on a matter of public interest was responsibly made is:
Whether the Plaintiff's Side of the Story Was Sought and Accurately Reported
· Bona Fides. It has been said that this is "perhaps the core Reynolds factor" because it speaks to the essential sense of fairness the defence is intended to promote, as well as thoroughness.
· Inherent Unfairness. In most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond...
· Risk of Inaccuracy. Failure to do so also heightens the risk of inaccuracy, since the target of the allegations may well be able to offer relevant information beyond a bare denial.
· Material Success. The importance of this factor varies with the degree to which fulfilling its dictates would actually have bolstered the fairness and accuracy of the report.
· Victim Without Knowledge. For example, if the target of the allegations could have no special knowledge of them, this factor will be of little importance...
· Victim Without Knowledge (example). see Jameel, where the House of Lords held that the plaintiff (whose group of companies had been put on a terrorism monitoring list) could not realistically have added anything material to the story because the relevant actions of the Saudi and U.S. governments were secret and entirely beyond his control.
COMMENT:
Courts need to ensure that the legal system is not subject to abuse. Here, the Courts are extending a helping hand to those who repeat a lie in print or on the internet. At the very least, the Court needs to make sure that the defendant is "bona fides".
One very basic element of fairness is the opportunity to have the target or victim speak up and offer his side of the story.
The Court realizes that is not always possible. Sometimes the victim has no knowledge beyond that which is already in the public domain. In the case of discussions about potential terrorists, provision of an opportunity to speak up might not have been practical and the information was truly a government source.
In most cases, the Court recognizes that there are two sides to every story.
That was the fourth test. There are seven (7) others.
Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com
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