Eva van Emden, Freelance Editor

Certified Copy Editor and Proofreader

eva@vancouvereditor.com

October 29, 2012

The basics of libel law in Canada and the new responsible communication defence

I recently attended a Tyee master class: Responsible Journalism in 2012: The Changing Legal Landscape for Journalists, taught by Leo McGrady of McGrady and Company, a firm whose specialties include libel law and intellectual property.

The biggest take-home message? Libel risk is manageable. Don’t be too afraid to write. In the last few years, courts have set precedents in libel law that have shifted the balance toward freedom to publish, and it’s important to use this new freedom from libel chill to build a new culture of freedom of expression.

Why does “libel chill” matter? Don’t people only get sued for libel if they lie?

I saw this sentiment in a blog comment just now, and I think it’s an important misconception to address. No, you’re not only at risk if you lie. Consider the following situations:

You review a book. You say it’s terrible, that the author doesn’t know what he’s talking about, and that he can’t write for beans. You could get sued. See this case about negative book reviews on Amazon’s website, and this case about a negative academic review.

Or perhaps you find out that a Canadian company is doing business with a supplier in a developing country who treats its employees very badly. You know this because you have done interviews with reputable sources. But if you publish a statement like, “John Doe, who works for an NGO in the country, reports that workers don’t have access to basic safety equipment,” could you prove in a court of law that workers don’t have access to basic safety equipment? If not, you may not feel safe publishing that sentence.

That’s what they mean by “chill.”

What is libel?

Libel refers to defamation in written, printed, broadcasted, or other lasting form.
Defamation is an attack on a person’s character that attributes to the person some form of disgraceful conduct—dishonesty, cruelty, sexual misbehaviour, irresponsibility, and the like—in either personal or professional concerns.

Editing Canadian English, 2nd Ed. 11.67

How to protect yourself when you publish

  • Be right. If your statement is true and you can prove it (more about that later), you’re safe. In this case it doesn’t matter if your reporting is malicious, unfair, or unbalanced.
  • Be able to show that you’re right: be diligent in your research, and save your documentation.
  • If it turns out that you were wrong about something, you can mitigate the damages against you if you take the material down, publish a correction, and apologize. Make sure the apology is honest and sincere: don’t backtrack, don’t make an “attack” apology, and don’t say it was the plaintiff’s fault.

What are the consequences?

If you mitigate the damage as described above, by retracting and apologizing, the lawsuit may not happen at all. A typical award for damages is about $70,000, which isn’t really worth suing for. Although the loser may have to pay court fees (something like $120,000), they would typically end up paying only about a quarter of that unless an award for special costs was granted (unusual). If the defendant was very reasonable about mitigating the damage, they might not even have to pay the court costs.

Main legal defences against libel

  1. Truth. If your facts are correct and your evidence satisfies the court, then you’re not liable. However, if your statements are difficult to prove, or if you made a mistake and published something that wasn’t true, read on.
  2. Fair comment. Remember that a defamatory statement is more or less anything that damages a person’s reputation. Maybe you made statements of opinion that were highly uncomplimentary. For your writing to qualify as fair comment, you need to show that the statement was comment or opinion, that it is your honest opinion, that it’s based on true facts, and that it regards a matter of public interest. If you are proven to be malicious, that defeats this defence.
  3. Privilege. In some situations when the communicator and the receiver have an interest and a duty to exchange certain information, that communication may be protected. For example, an employer giving a reference to a future employer is a situation of “qualified privilege.” This defence is lost if the person making the statements is malicious or if the information is communicated beyond the group of people who have an interest in receiving the information. Increasingly, it seems that the public may be the interested party.
  4. Responsible publication. This is a relatively new defence that came out of the Grant v. Torstar case (see below). The defendant has to show two things:
    1. The matter is of public interest.
    2. The defendant acted in a responsible way.
    In deciding whether the defendant acted responsibly, a number of factors are considered:
    1. The seriousness of the allegation. More serious allegations require stronger evidence.
    2. The public importance of the matter.
    3. The urgency of the matter.
    4. The reliability of the source.
    5. Whether the plaintiff’s side of the story was sought and accurately reported. How important this is depends on the circumstances, but generally, consulting the person you’re writing about decreases your chances of getting your facts wrong.
    6. Whether the inclusion of the defamatory statement was justifiable.
    7. Whether the statement’s public interest lay in the fact that it was made rather than its truth. This can protect situations like reporting on a libel case, where it would be difficult to avoid repeating the defamatory statement.

Recent changes in Canadian libel law

Grant v. Torstar in 2009 was the case that resulted in the new guidelines for responsible journalism or responsible communication. The Court commented:
The existing common law rules mean, in effect, that the publisher must be certain before publication that it can prove the statement to be true in a court of law, should a suit be filed. Verification of the facts and reliability of the sources may lead a publisher to a reasonable certainty of their truth, but that is different from knowing that one will be able to prove their truth in a court of law, perhaps years later. This, in turn, may have a chilling effect on what is published. Information that is reliable and in the public’s interest to know may never see the light of day.

—paragraph 53

Wikipedia summary of Grant v. Torstar

Supreme Court of Canada Grant v. Torstar

Other considerations

Malice

“Actual malice” in a libel case is not personal dislike or even a personal vendetta. It means that the person making the statement had an ulterior motive or a lack of honest belief in the statement.

Repeating a statement

Quoting someone else does not distance you from liability. The contentious statement in the Grant v. Torstar case was a quoted statement from a local resident. The resident made the statement, but the newspaper was sued for printing it.

Differences between Canadian and US law

Because libel law is different in the United States, previous publication in the United States does not mean that a statement is safe to publish in Canada. In particular, be aware that public figures are not given different treatment in Canadian libel law.

Libel on the internet

Linking to libellous content is generally safe, but if someone tells you the linked content is libellous and you refuse to take the link down, you may be considered to be endorsing the libellous content.

You are responsible for the comments on your blog. You should moderate your comment feeds. Even if a libellous comment slips through, having a moderation process in place will count in your favour.

Web pages are considered to be published globally. Yikes.

Resources and further reading about libel

The Tyee on the Furlong libel case (Update: decisions for Furlong v. Robinson and Robinson v. Furlong)

Damage Awards for Libel in Canada

Supreme Court of Canada Access to Court Materials

CanLII: free Canadian law on the internet

Quicklaw is a pay research service

October 3, 2012

Banned Books Week

And Tango Makes Three
I forgot it was Banned Books Week! Banned Books Week raises awareness of banned or challenged books and to persecution of authors.

Freedom to Read has a page on Censorship in Canada with a 39-page list of banned and challenged books and magazines. Of course, there are the usual suspects: the Harry Potter series, Philip Pullman’s His Dark Materials trilogy, Huckleberry Finn, Catcher in the Rye, To Kill a Mockingbird, The Handmaid’s Tale. But there are always some surprising entries, like American Gods—Neil Gaiman, or Leonard Maltin’s 2010 Movie Guide.

Most books that are challenged remain available; a challenge just means that someone made an effort to get a library or school to withdraw a book. However, some books and magazines are successfully made unavailable when they are seized at the border. Little Sister’s book shop in Vancouver has been fighting legal battles for years over censorship of books that describe gay and BDSM sexuality.

Read more

Banned Books Week on the American Library Association website.

Read free samples of the ten most challenged books of 2011.

Is that the reading list of a humanities course? No, it’s Banned Books 387 BC To 1978 AD, most of which are available for free on Project Gutenberg.

Excerpt from Joseph Anton, Salman Rushdie’s memoir about living in hiding after he was threatened with death for writing The Satanic Verses.