UK: North America To Lead The Way Again?

Last Updated: 24 August 2010
Article by Duncan Lamont

Just as the old case of New York Times Co. v Sullivan in 1964 indicated a change in the wind that was to lead years later to the House of Lords decision in Reynolds v Times Newspapers, perhaps the recent Canadian decision of Grant v Torstar Corps can provide a way through the problems in the UK with implementing principles of freedom of expression against the powerful rights of privacy and reputation.

The courts in England have struggled to create a framework that will actually provide the media with the confidence to invest in hard hitting journalism. The cases following Reynolds seemed to promise a lot but the recent decision in Flood (see our recent article) has muddied the waters.

But in Canada the Supreme Court has indicated that Canadian Law needs a new rule that gives "greater scope to freedom of expression while offering adequate protection on reputation".

The courts set out parameters for a new defence of "responsible communication on matters of public interest" having come to the conclusion that the traditional defamation law (very much based on our own) did not "give adequate weight to the constitutional value of free expression".

As we have seen here but with perhaps greater emphasis the Supreme Court looked at "democratic discourse" and "truth-finding" and held that a free flow of information engenders truth-finding and is critical in a democracy on matters of public interest. The court wanted to take steps to free up political discourse and debate on matters of public importance and was concerned at the unavailability of defences which could impede "the cut and thrust of discussion necessary to discovery of the truth".

The court looked at issues that we have become familiar with here in our own cases – the importance of accurate reporting and the protection of good reputation cannot really be argued against, but then again requiring too much of newspapers and broadcasters regarding important allegations published can be too chilling. Requiring publishers to be certain of their ability to prove statements in a court of law before publication can stop important investigations.

The Canadian Court was of the view that there should not be too conservative an interpretation of qualified privilege, although there still needed to be a compelling public duty or private interest justifying publication and the recipient should have a corresponding interesting receiving it. The court also pointed out that protection of privacy should not be conflated with the protection of reputation (a shift away from an older Supreme Court case of Hill v Church of Scientology.

Like here, the Supreme Court in Canada had in mind that freedom of expression and protection of reputation are "twin values" and are "equally important rights" (as found in Hill) but now there is a recognition in principle at least of the primacy of freedom of expression in a public interest context so long as there is adequate protection for reputation. The court coined a new way of expressing the defence as "responsible communications on matters of public interest", to capture a broader class of publishers than just the traditional Canadian media. So it will help bloggers as well as broadcasters.

But publishers still need to be diligent in attempting to verify the allegation and the court ended up with a list not particularly dissimilar to that given to the media here by the court in Reynolds:-

  • The publisher should have regard to the seriousness of the allegation.
  • The public importance of the matter.
  • The urgency of the matter.
  • The status and reliability of the source.
  • Seeking the claimant's side of the story and reporting it accurately.
  • Considering 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.
  • Any other relevant circumstances.


So not a licence for the publication of (untrue) tittle-tattle but, in Canada at least, a recognition that the "public interest" test needed to be broadened and strengthened to encourage democratically important quality journalism. But in Canada reporters still need to be "diligent" and it should be remembered that North America has an honourable tradition of detailed fact checking and (arguably less sensationalist reporting). Some unfairly maligned clients might suffer as a result of this in Canada but so long as the underlying journalism was sound this was to be considered an acceptable price for free debate.

Of course, like here, there is a danger that the court will still look closely, and sometimes in intrusive detail, into the behaviour of individual journalists in putting together a story to ascertain just how diligent (or not) they had been. Just as over here this can be expensive in Canada too.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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