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  1. #1

    Supreme Court of Canada fundamentally shifts press freedom

    This happened just before Christmas, and is a big development in Canada's legal system:

    http://www.theglobeandmail.com/news/...rticle1409816/


    The Supreme Court of Canada transformed the country's libel laws yesterday with a pair of decisions that proponents say will expand the boundaries of free speech.

    The court ruled that libel lawsuits will rarely succeed against journalists who act responsibly in reporting their stories when those stories are in the public interest.

    It also updated the laws for the Internet age, extending the same defence to bloggers and other new-media practitioners.

    Chief Justice Beverley McLachlin said that Canada needs to keep in step with several other Western democracies that have provided greater protection to the media.

    The media were exultant about the rulings. "This is a historic turn for Canadian media, who have long suffered an undue burden of proof," said Globe and Mail editor-in-chief John Stackhouse. "We should not take our responsibility any more lightly, but we should celebrate the fact that the heavier blinds of Canadian libel law have been pulled back. The acceptance of this new defence by the Supreme Court of Canada will greatly advance the cause of freedom of expression, transparency and responsible journalism in Canada."

    Chief Justice McLachlin said that context is critical. She urged trial judges not to parse controversial statements in isolation, but to consider the entire subject matter.

    Other critical factors listed by the court were: the seriousness of a published allegation; the public importance and urgency of the issue; the status and reliability of a source; and whether the plaintiff's side of the story was sought and accurately reported.
    A perspective offered by the Law Times periodical:

    http://www.lawtimesnews.com/20091229...damental-shift


    The ruling effectively rewrites Canada’s libel laws, and affects every media lawyer in the country, says Ronald Caza. “They’ve shifted the paradigm so it is weighted more in favour of freedom of speech,” he says. “It’s a dramatic shift.”

    Caza suspects the focus of defamation suits will now be on the plaintiff’s actions prior to the publication of a libelous article.

    “The reaction now will likely be they need to communicate with the journalist. They need to ensure the journalist has all of the relevant information,” he says. If the story is published regardless, and the defamation ensues, only then can a reporter and publication be said to have irresponsibly printed falsehoods, Caza says.

    “The key period of time will be before publication. That will likely become a very important change.”

    In the unanimous decision, the nine justices ruled the country’s defamation laws unduly hamper free expression in order to protect reputations.
    “The current law with respect to statements that are reliable and important to public debate does not give adequate weight to the constitutional value of free expression,” said Chief Justice Beverley McLachlin in the ruling.

    The court ordered defamation law be revised to create a new defence called “responsible communication.”
    “It’s probably the most important libel decision ever decided. How often does a new defence get created?” says Paul Schabas, who represented the Toronto Star in an accompanying ruling.

    A $1.5-million libel award against the Star was also set aside and a new trial was ordered in both Grant v. Torstar Corp. and Quan v. Cusson.
    An Ontario developer sued the Star after a 2001 article quoted neighbours suggesting he was using his political influence to get approval for expansion of a private golf course in northern Ontario.

    In Cusson, Ottawa Citizen stories claimed a police officer misrepresented himself to New York authorities when he travelled to Ground Zero with his dog to help with rescue efforts.
    A jury found that many of the reported facts in the Citizen were unproven. The Ontario Court of Appeal later upheld the libel ruling, but created the defence of responsible journalism in provincial law. A version of that defence now applies to the whole country.

    The SCC ultimately accepted the argument freedom of expression as outlined in s. 2 of the Charter of Rights and Freedoms dictates greater protection for journalists reporting on matters of public interest.
    “In the modern context, it is argued, the traditional rule has a chilling effect that unjustifiably limits reporting facts,” the ruling said.

    Schabas says the change will help to thaw “libel chill,” experienced when publications self-censor stories for fear of lawsuits when all facts cannot be absolutely proven.
    “The effect of it will be there will now be news reported that in the past might not be reported,” he says. “Now you don’t have to prove the truth if it was in the public interest to report it and you report it responsibly.”

    KD
    Kevin C. Deck cd1
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    Past CO - RCSCC MEDICINE HAT, RCSCC BICKNELL, RCSCC GRILSE

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  3. #2
    Even a greater reason not to trust the media. It is very scary how many wars have been lost due to inaccurate information from the media(6 day war). We may be the future victims now.
    Catherine Carter
    Former Cadet

  4. #3
    Quote Originally Posted by Carter View Post
    Even a greater reason not to trust the media. It is very scary how many wars have been lost due to inaccurate information from the media(6 day war). We may be the future victims now.
    A free media is what keeps democracy safe. Where there is no free media ... media is always bad.

    All this ruling does is codify precedent related to the long standing media defence of "fair comment" and at the same time bring the law into the internet age and thereby serve notice on others that would irresponsibly publish on the internet without fact checking.
    The court ruled that libel lawsuits will rarely succeed against journalists who act responsibly in reporting their stories when those stories are in the public interest.
    That has always been the case
    The court decided to ensure healthy discourse; a new defence is needed, not just for traditional news media, but also for other distributors of information, like online media and bloggers.

    The availability of the responsible communication defence involves meeting two tests. Firstly, the publication in question must be on a matter of public interest, a question that will be answered by a judge alone. That includes stories “inviting public attention,” affecting “the welfare of citizens,” or involving “considerable public notoriety or controversy.”

    If the first condition is met, a jury will be asked to determine if the new defence applies, while considering the following factors: seriousness of the allegation; public importance of the matter; urgency of the matter; status and reliability of the source; whether the plaintiff’s side of the story was sought and accurately reported; whether the inclusion of the defamatory statement was justifiable; whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and any other relevant circumstances.
    Often when there is a complaint (or threat of libel action) the plaintiff has not participated in the process and hides behind "no comment" which more often than not means "I have something to hide." When speaking to a journalist, the advice is "never say 'no comment', never ever lie, if you don't know, say so and offer to find out, if you cannot answer, say so and explain why."

    That will save a lot of grief for the subject of the story, the reporter, the public and often ultimately the courts.
    Last edited by GWP; 2nd January 2010 at 13:54.
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  5. #4
    Quote Originally Posted by Carter View Post
    Even a greater reason not to trust the media. It is very scary how many wars have been lost due to inaccurate information from the media(6 day war). We may be the future victims now.
    The 6 Day War was lost by the Arab side more because the Isrealis gained early air superiority with their surprise attacks on the Egyptian Air Force and other countries' air forces, and because the Egyptians and because of poor intelligence sharing between the Arab countries in the "fog" of the opening day of the war. One cannot really blame "the media" for the Arab defeat.

    Do you have any other examples of "the media" causing a war to be lost?

    I think you need to read more into this change. This actually unfetters the media's ability to report on things, as it takes away some fear of being sued for libel or defamation. How many stories have been gagged by corporate media organizations on the advice of their lawyers, because they were concerned a story would result in a lawsuit. That is the "libel chill" mentioned in the original post. If a reporter is trying to piece together a story on wrongdoings by a large and well-moneyed company, and the company gets wind of it, their lawyers get on the phone and try to scare of the media outlet with threats of expensive legal action. This ruling makes it easier for small media outlets to proceed with such stories, knowing that the law will protect them if they have made honest attempts to communicate with the company to get their side of the story, and if they present their story responsibly.

    KD
    Kevin C. Deck cd1
    Lt(N)
    RCSCC GRILSE canada bc
    Past CO - RCSCC MEDICINE HAT, RCSCC BICKNELL, RCSCC GRILSE

  6. #5
    CW Chatter/SE Contributor of the Year - 2009 M. Arnott is on a distinguished road M. Arnott's Avatar
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    I am upset by this. After the stuff which the media put my family through back in June by writing false stories about my brother, I would love to see the media have less freedom of speech. Too bad this seems to be the opposite of what happened. Here's to seeing more lives being destroyed by libel.
    SLt Morgan Arnott
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  7. #6
    Quote Originally Posted by M. Arnott View Post
    I am upset by this. After the stuff which the media put my family through back in June by writing false stories about my brother, I would love to see the media have less freedom of speech. Too bad this seems to be the opposite of what happened. Here's to seeing more lives being destroyed by libel.
    http://www.cbc.ca/canada/british-col...nrickson-.html

    If this is a libelous report the offenders are first the "friends" that are quoted if they are speaking untruths. However, it would seem that there was coraboration enough for the media to run with the story.

    And both sides of the discussion did get attention.

    http://www.ctvbc.ctv.ca/servlet/an/l...shColumbiaHome

    http://www.ctvbc.ctv.ca/servlet/an/l...shColumbiaHome

    A most unpleasant (and unresolved) experience for everyone but generally fair coverage of an important community story.

    http://www.bclocalnews.com/greater_v.../69920152.html
    Last edited by GWP; 3rd January 2010 at 19:27.
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  8. #7
    CW Chatter/SE Contributor of the Year - 2009 M. Arnott is on a distinguished road M. Arnott's Avatar
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    Those were done a couple days after the initial publication of the misinformation about my brother. It just bothers me a fair bit. I could go on a rant about how the media treated my family with regards to that story. And that was after my mother saw the misinformation and made contact with the media. It wasn't really fair coverage when there were articles that were works of fiction attacking my brothers character.
    SLt Morgan Arnott
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