New ‘press freedom’: for some, but not all
p2pnet news view | Freedom:- It seems many, if not most, amateur and professional on- and offline communicators in Canada agree with what the Toronto Star today heralds as a “huge victory” for press freedom.
But not all.
The Supreme Court of Canada “created a new defence to libel lawsuits for journalists who fairly and responsibly report a story of public interest, even if they can’t prove it is true,” says the story, going on >>>
Dubbing it the “responsible communication” defence, the country’s top court ruled 9-0 the Charter of Rights guarantee of free expression requires greater legal protection for broadcasters, writers and bloggers who diligently try to verify the accuracy of a report.
The high court agreed with the Toronto Star, a broad coalition of Canadian media outlets and the Canadian Civil Liberties Association that Canadian defamation law had not kept pace with the constitutional value placed on free and open public discourse.
“In the U.S., the plaintiff has to prove that the words are false,” the story quotes Star lawyer Paul Schabas as saying, going on >>>
“In Canada, under our old law — the law before today — the press had to prove that words were true.” Now, he said, Canada has “adopted a middle ground where if it’s in the public interest and the press have every reason to believe it to be true, then they are entitled to a defence.
“And that’s in the public interest.”
Blogs University of Ottawa law professor and Internet expert Michael Geist, “In a big win for new media and bloggers,” the decision “concludes that the defence applies broadly,” to wit:
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.
But Terry Glavin (right), adjunct professor at the University of Columbia creative writing department, isn’t quite so sanguine.
“The mere whiff of a curtailment of free speech by the state or by the courts should be sufficient to cause a reasonable person to notice that his trigger finger is suddenly itchy, so I expect that many reasonable people will welcome today’s news about the Supreme Court of Canada’s ruling on libel law,” he says in his Chronicles & Dissent blog.
But, “let’s all straight away disabuse ourselves of the idea that the Supreme Court ruling will efficiently and certainly and directly serve the purposes of ‘responsible communication on matters of public interest’ in this country’,” he concludes.
“I suspect it’s just as likely that the ruling will lead us in the opposite direction.”
Earlier in his post, “I’ll put it this way,” he says. “Say a newly-hired editor summons everyone to gather around the newsdesk for what you’ve been given to believe will be a harangue about his firm expectations and high standards in the matter of pursuing stories that may cast black clouds upon the standing of certain citizens in the community, he states, going on >>>
Instead, the editor says this: “Free, willing debate on matters of public interest is to be encouraged and must not be thwarted by overly solicitous regard for personal reputation.” As he goes on with his soliloquy, the young and impressionable journalists taking it in scribble these words into their notebooks: Judge the story as a whole; consider whether it is in the public interest; if you report libelous and inaccurate allegations about somebody, it’s okay, as long as you can say you exercised “due diligence” in trying to confirm the allegations.
The editor concludes with another fuzzy reference to “responsible communication on matters of public interest” and orders everyone back to work.
See? I haven’t read the Court’s entire decision yet, and wouldn’t ask that you trust my forensic analysis of it anyway, because I’m not a lawyer. But what I know for certain is that I would not leave a newsroom meeting of that kind with the impression that the new editor had just uttered a stern admonition to his staff that he expected each and every one of them to cleave bravely to the highest principles of accuracy and fairness, no matter what they personally thought about the villains who happened to end up the subject of what the newspaper’s editors had deemed to be “of public interest.” I might rather shamble away muttering something to myself along the lines of, this new editor is going to drag this old newspaper into the gutter, just you watch.
The thing to remember about libel law is that contrary to popular assumption, it does not operate in some high-ideal forum governed solely by some grey woman wearing a kind of toga with a blindfold on, holding scales.
But, Glavin continues, “In the operation of libel law, the constitutional principle that all of us are equal before the law does not hold much sway. Justice is not blind in libel cases.
“The first thing it demands to see are the contents your wallet. What happens after that largely depends on how much money there is in it.”
Thus it ever was, and so it still is …
… unless you’re the Toronto Star, et al, with deep pockets and lawyers on tap.
Stay tuned.
First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi
agree – New defence in Canadian defamation cases, December 22, 2009
Toronto Star – Top court expands freedoms for media, December 23, 2009
Michael Geist – Canadian Supreme Court Establishes “Responsible Communication” Defence in Defamation Cases, December 22, 2009
Chronicles & Dissent – About Free Speech, Or ‘Responsible Communication On Matters Of Public Interest.’, December 22, 2009
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