The Supreme Court of Canada: There are no journalists, only citizens

I’ll confess some confusion around the slant taken by several newspapers and media outfits regarding yesterday’s supreme court decision on defense of libel claims.

For those new to this story, yesterday, the Supreme Court of Canada ruled that a libel claim can be defeated even when the facts or allegations made turn out to be false (e.g. I don’t owe you money if I say something nasty and untrue about you) as long as the story was in the public interest and I met a certain standard around trying to ascertain the truth. In short, my intentions, not my output, is what matters most. This new line of defense has a fancy new name to go with it… the defence of responsible communication.

Boring, and esoteric? Hardly.

Notice how it isn’t called “the defence of responsible journalism?” (although, ahem, someone should let CTV know). This story matters as it demonstrates that the law is finally beginning to grasp what the internet means for our democracy and society.

Sadly, the Globe, CBC, National Post and CTV (indeed everyone with the exception of Colby Cosh at Macleans) all framed the decision as being about journalism and journalists.

It isn’t.

This is about all us – and our rights and responsible in a democracy in the internet age. Indeed, as if to hammer home this point the justices went out of their way to in their decision to essentially say: there is no such thing as “a journalist” in the legal sense.

A second preliminary question is what the new defence should be called.  In arguments before us, the defence was referred to as the responsible journalism test.  This has the value of capturing the essence of the defence in succinct style.  However, the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists.  These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets.  I agree with Lord Hoffmann that the new defence is “available to anyone who publishes material of public interest in any medium” [paragraph 96]

and early they went ever further:

The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause. [paragraph 62]

If you are going to say “blogger” you might as well say “citizen.”  All the more so when “publishing material of public interest in any medium” includes blogs, twitter, an SMS text message, a youtube video… mediums through which anyone can publish and broadcast.

Rather than being about journalism this case was about freedom of expression and about laying a legal framework for a post-journalism world. Traditional journalists benefit as well (which is nice – and there will still be demand for their services) but the decision is so much broader and far reaching than them. At its core, this is about what one citizen can say about another citizen, be that in the Globe, on CBC, on my blog, or anywhere. And rather than celebrate or connote any unique status upon journalist it does the opposite. The ruling acknowledges that we are all now journalists and that we need a legal regime that recognizes this reality.

I suspect some journalists will likely protest this post. But the ruling reflects reality. The notion of journalists as a professional class was and has always been problematic. There are no standards to guide the profession and no professional college to supervise members (as there is with the legal or medical profession). Some institutions take on the role of standard setting themselves (read journalism schools and media outlets) but they have no enforcement capacity and ultimately this is not a self-regulated profession. Rather, it has always been regulated by the courts. Technology has just made that more evident, and now the courts have too. Today, when speaking of others we are all a little better protected, and also have the burden of behaving a little more responsibly.

35 thoughts on “The Supreme Court of Canada: There are no journalists, only citizens

  1. A. Lougheed

    Perhaps then, this serves as a passive recognition by the Globe, CBC, National Post and CTV that blogging is an accepted form as journalism?This is an excellent case to file in precedent. Very proud to be living here today.

    Reply
  2. DJ Kelly

    Shortly after the first World War, the famed journalist Walter Lippman warned his colleagues of the dangers of not self organizing. That danger was – and is – anyone can call themselves a journalist. However journalism has always had the cocoon of a widely accepted broadcasting medium the average person did not have access too. In recent years, this barrier has been deteriorating by the day and it was only a matter of time before an official ruling like this from the Supreme Court made it official: there is no longer a difference between a journalist and a citizen. And that's a shame, because there are journalistic practices the average citizen will not embrace as they have not been trained in this area of specialization. As was Lippman's argument: a lack of accountability in journalists leads to the degradation of the industry. (Just as it would have for engineers if they did not self-organize to create standards.) I don't think journalists will argue too hard with your post David. Unknowingly and unwillingly, they've done this to themselves over generations.

    Reply
  3. Stephen Taylor

    This is indeed good news and in fact returns “journalism” to its roots: news collection and dissemination by citizens in a free society. Once, reporters fought for access to cover events, now some act as gatekeepers to that same access now attained and coveted by outsiders that would wish for the same.As blogging/micro-blogging continues to evolve as a medium we are starting to see a shift back to popular reporting rather than elite/institutional reporting.As long as we all act within the framework of reasonable communication, what's the difference? And for whatever difference does exist (and it does), this will all be sorted out by those that consume the product — a task much more easily done in a day and age when the threshold that limits publication has become nil.[Submit Post] !

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  5. CharlesGYF

    Well, the new defense applies to bloggers (or anyone) only if they meet the second test as well…” Second, the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.”If bloggers fact check then sure, they'll meet the test. But if they don't, then I doubt they would be protected.

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  7. David Eaves

    Charles – think we are in violent agreement… everybody has to meet the same test: blogger, citizen or journalist. Of course, the opposite is also true, if anyone fails to meet the test then they won't be protected…

    Reply
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  10. Len Layton

    The reality is that the only people who can actually use this defense in a libel suit are those that are protected by a corporation (i.e. big media organization) or are a very wealthy blogger. Ordinary citizens are highly unlikely to be able to get to the point where this test is applied. Canada's libel laws and the way they are being interpreted by the Supreme Court of Canada (and more importantly, the provincial courts) are way out of step with the reality of the internet. People forget that it is only the United States that has anything approaching freedom of speech. Don't be fooled.

    Reply
  11. David Eaves

    Len – thank you for the comment. A few thoughts… First, I agree that the justice in general is far too expensive for anyone to use. That said, I'd still prefer an expensive defense over no defense or worse, a legally ambiguous state of affairs. Second, I'm not sure that the interpretation of libel laws is relevant – the courts are effectively setting a new standard so older decision may not be a great reference point.I agree that the United States has excellent legal tradition around freedom of speech – especially in terms of the right to satirize material (no wonder canadian comics go south). That said, this was never a comparative piece so I'm not sure anyone was being fooled… Mostly this piece was about the new legal landscape here in Canada and what it means for all of us…

    Reply
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  13. JDrolet

    I am afraid though that the costs associated with the “maintenance of the rule of law” is the biggest obstacle to justice at this point. True, no law or open corruption are worst but that aside, we are at a stand still and are at a real risk of sliding backwards. Yet, this should not take away the positive energy that comes with a good legal decision and I agree with all, this is as good as it gets. Good timing with the Holidays spirit in fact. And to be absolutely “kitchy”, Merry Xmas to you David and to all who follow this precious Blog.

    Reply
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  15. Andrew

    I can see this ruling being a bad one down the road. Journalists already have five defences when libeling someone. One of those is truth. Now, under this ruling, true is not necessary.Lets say a man is running for mayor and a woman comes forward to the media and claims the candidate raped her 12 years ago but was never charged by police. If I could find evidence of a rape then I could print the story because I could defend myself in court. Under this ruling, I can print the rape story without any evidence what so ever. A witness testimony would be fine. We all know how unreliable witness testimonies can be.Everyone has a little more freedom today but we've entered into a new era of ethical dilemma.

    Reply
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  19. michael_webster

    There was an English High Court ruling several years ago which decided that defamatory comments on a blog ought to be treated as slander and not libel – in the former, the plaintiff has to prove special or actual damages. With most blogs allowing for full comments, I would argue that many written comments or publications in digital form should be treated as slander and not libel.

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  23. nicnoc

    @Andrew: The Cusson decision is a good one, because standards based on both freedom of expression AND professional diligence will now come into play. Although we are all citizens, a skilled and responsible reporter working for corporate media will be held to a higher and much stricter standard than a mere blogger. This decision may also clear up matters for certain media lawyers who have claimed “immunity” or “privilege” for their corporate clients. This position sent the wrong message to professional journalists who believed “immunity is impunity”. Who has not, for example, reported on written court allegations verbatim – without bothering to do an ounce of honest reporting in an effort to verify “facts” claimed in statements of claim? After all, journalists' intentions will now be scrutinized on the basis of their application of professional skills and effort to verify such information and to avoid repeating defamatory claims. Years ago, the G&M began recognizing their responsibilities by reporting that written court allegations were “unproven in court”. But they reported on them anyway. Now, they may be forced to refrain from reporting details that cannot be verified by the traditional 2-source rule. Both libel chill AND lazy and reckless reporting have now been defined as a an attack on democratic values. The CBC was the first big media to learn this hard lesson in the 2004 Neron case, in which the Supreme Court quoted from the 2002 Prud'homme case: “Democracy has always recognized and cherished the fundamental importance of an individual…a reputation tarnished by libel can seldom regain its former lustre.”

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  24. Michael M

    Of my friends who went into journalism, the majority remain freelance in the truest sense of the word. They pay for all their own expenses, go to the war-torn country or economically impoverished area in question, live off their own wits as part of a small networked group of like-minded individuals, and then sell their stories often after the fact to any agencies who will buy them. It is sparse work. I suppose then you could call these people 'extreme bloggers' or 'journalists'? Note I still remain entrenched in the view that the internet marketplace is not the best place to determine the primacy of ideas.

    Reply
  25. Michael M

    Ok – this is my position, which HAS been influenced by David over the last couple years. Local news is in fact well-served by bloggers (in fact VERY well served – served better than by local journalists) HOWEVER i still think that journalists remain distinctly advantaged at the international level.

    Reply
  26. Brenton

    I would love it if someone could show me a blogging site that generated original international news for a domestic audience, along the lines of a foreign correspondent for a daily. I realize that some people will simply say that how we communicate news has and will change so that this model will no longer exist, but I don't want to rely on tweets from inside a security clampdown for my news. I want to read Doug Saunders' piece on going inside Iran. If online revenue doesn't allow a newspaper to send their correspondents, how will revenue from a blog? Or are we now going to have to rely on in-country only? And if so, will they be horribly paid local stringers or free citizen journalists? I kind of want professionals, with years of experience, with the ability to see beyond the immediate. Maybe I just haven't looked hard enough.

    Reply
  27. Michael M

    Of my friends who went into journalism, the majority remain freelance in the truest sense of the word. They pay for all their own expenses, go to the war-torn country or economically impoverished area in question, live off their own wits as part of a small networked group of like-minded individuals, and then sell their stories often after the fact to any agencies who will buy them. It is sparse work. I suppose then you could call these people 'extreme bloggers' or 'journalists'? Note I still remain entrenched in the view that the internet marketplace is not the best place to determine the primacy of ideas.

    Reply
  28. Michael M

    Ok – this is my position, which HAS been influenced by David over the last couple years. Local news is in fact well-served by bloggers (in fact VERY well served – served better than by local journalists) HOWEVER i still think that journalists remain distinctly advantaged at the international level.

    Reply
  29. Brenton

    I would love it if someone could show me a blogging site that generated original international news for a domestic audience, along the lines of a foreign correspondent for a daily. I realize that some people will simply say that how we communicate news has and will change so that this model will no longer exist, but I don't want to rely on tweets from inside a security clampdown for my news. I want to read Doug Saunders' piece on going inside Iran. If online revenue doesn't allow a newspaper to send their correspondents, how will revenue from a blog? Or are we now going to have to rely on in-country only? And if so, will they be horribly paid local stringers or free citizen journalists? I kind of want professionals, with years of experience, with the ability to see beyond the immediate. Maybe I just haven't looked hard enough.

    Reply
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