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 Inclusion of the Defamatory Statement was Justifiable
· Jury Determination. .....it is for the jury to determine whether inclusion of a defamatory statement was necessary to communicating on a matter of public interest.
· Statement Necessary. Its view of the need to include a particular statement may be taken into account in deciding whether the communicator acted responsibly.
· Broad Scope. In applying this factor, the jury should take into account that the decision to include a particular statement may involve a variety of considerations and engage editorial choice, which should be granted generous scope.
In a defamation action, it is to be left to the Jury to determine whether the "lie" was justifiable. Was the inclusion of this particular statement necessary? The "lie" is already the "evil". The next question is whether it was actually "necessary". A responsible communicator might have left it out, and still have maintained the publication or communication intact.
However, the Court does not wish to interfere and overstep editorial choice, which is the essence of "free speech".
That was the fifth test. There are seven (7) others.
Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty