Many individuals, business owners, politicians and media outlets are unclear as to where the ‘lines in the sand’ have been drawn in relation to publications and broadcasts of potentially defamatory material.
This topic was discussed by the Ontario Court of Appeal in the case Cusson v. Quan  O.J. No. 4348 (Ont.C.A.) reversed on other grounds  S.C.J. No. 62 (S.C.C.) (Hereinafter, Cusson). The honourable Justice Sharpe at paragraph 34 sets the basis for his decision with a review of defamation law and commonly available defenses. Any full analysis of this topic must start with a review of defamation law generally. Any Plaintiff in a Defamation action at common law must “establish only three things to make out a prima facie cause of action, namely, that the words complained of (1) are reasonably capable of defamatory meaning; (2) refer to the plaintiff; and (3) have been published. Liability does not rest upon proof that the statement complained of was untrue or, subject to certain specific defences …, that the defendant was at fault in publishing those words. Nor does the plaintiff have to prove damages. The common law presumes falsity, fault and damages.” (Cusson, 34)
Some available defenses discussed included Justification, or truth and Fair comment. “Justification, or truth, is a defence to a defamation action. However, as defamatory words are presumed to be false, the defendant bears the onus of proving the substantial truth of the “sting”, or the main thrust, of the defamatory words. There are no special rules or exceptions for media defendants. The result is that unless a media defendant can prove the truth of the statement complained of according to the exacting standards of a court of law, the defendant will be liable. It is no defence for the defendant to show that it followed accepted standards of investigation and verification and formed an honest and reasonable belief in the truth of statements it published.” (Cusson, 35) Fair comment is “A defence frequently invoked by media defendants, but equally available to all defendants, is that of fair comment. The defence rests upon the defendant establishing that the statement was (1) a comment, not a statement of fact; (2) based upon true facts; (3) on a matter of public interest; (4) made fairly; and (5) made without malice: see Cherneskey v. Armdale Publishers Ltd.,  1 S.C.R. 1067; Peter A. Downard, Libel, (Toronto: LexisNexis Canada Inc., 2003) at 113; Roger D. McConchie & David A. Potts, Canadian Libel and Slander Actions, (Toronto: Irwin Law, 2004) at 337. While aptly described by Lord Denning M.R. in Slim v. Daily Telegraph, Ltd.,  1 All E.R. 497 at 503 as ‘one of the essential elements which go to make up our freedom of speech’, in the end, the defence of fair comment offers limited protection to the media when reporting on matters of public importance as it does not apply to the expression of an opinion based upon a fact that the media defendant cannot prove to be true. As with the defence of justification, however thoroughly the media defendant may have researched the story and checked its sources, if the facts upon which the opinion is based cannot be proved to be true, the defence of fair comment will be of no avail.” (Cusson, 36)
Justice Sharpe then moves to discuss the defence of qualified privilege. “In its traditional formulation, the common law of defamation clearly favours the protection of reputation over freedom of expression. However, the common law does recognize that in certain situations, protection of reputation must yield to open and free discussion. These occasions attract the protection of either absolute or qualified privilege. Words spoken in Parliament and in the courts attract absolute privilege. However false and harmful to reputation, statements made in Parliament or in the courts simply cannot be sued upon; the public interest in unrestrained legislative debate and unconstrained evidence and submissions in the courts trumps the interest of protecting reputation.” (Cusson, 37) “Qualified privilege arises on occasions where the maker of the defamatory statement has an interest or duty to make it and the person to whom it is made has a corresponding interest or duty to receive it. The classic and frequently quoted formulation of qualified privilege is that of Lord Atkinson in Adam v. Ward,  A.C. 309 at 334 (H.L.): ‘an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential’.” (Cusson, 38)
“The privilege is said to be qualified as it can be defeated upon proof of malice, that is spite or ill-will, ulterior purpose, or, more commonly, proof that the defendant either knew the statement was false or was reckless as to its falsity: see Hill v. Church of Scientology,  2 S.C.R. 1130 at para. 145 [“Hill v. Scientology“]. The privilege can also be lost where the limits of the duty or interest are exceeded by the use of words not reasonably appropriate to the occasion.” (Cusson, 40)
Justice Sharpe proceeds to attempt to explain that he believes that the defence of qualified privilege to the media in relation to publication to the world at large under current Canadian law is in a state of flux and evolution. He states: “It is well-established that qualified privilege protects fair and accurate media reports of public proceedings in Parliament, the legislatures, the courts and in quasi-judicial tribunals: see McConchie and Potts, supra, at pp. 406-407. Aspects of this common law privilege have been codified and extended by statute: Libel and Slander Act, R.S.O. 1990, c. L-12, ss. 3, 4. In other areas, however, the availability to the media of the defence of qualified privilege is considerably limited by a series of decisions from the Supreme Court of Canada and from this court dating from the 1950s, 60s and 70s. These cases appear to stand for the proposition that newspapers are to be treated the same as any other defendant and that qualified privilege does not apply to statements published to the world at large. However, there is a significant line of more recent authority that accepts the proposition that in some cases the media do have a duty to publish matters of public interest and that there is a corresponding interest of the public to receive the information, giving rise to an occasion attracting the protection of qualified privilege. I review and discuss both lines of authority below. The issue raised squarely on this appeal is how best to resolve the apparent tension between these two existing lines of authority. Should the law of qualified privilege remain frozen in its 1950s, 60s and 70s state, or should it evolve to afford the media greater latitude when reporting on matters of public interest?” (Cusson, 45-47)
The decision dives into a review of cases from 1952-1979. These past decisions initially all deny a Newspaper the defense of qualified privilege and insist that a newspaper is in no different situation from that of any member of the public when it comes to defamation defenses available to them. However later Justice Sharpe mentions “Despite this significant line of authority, recent cases have been considerably more receptive to the argument that, in certain circumstances, the media has a duty to report on matters of public interest, that there is a corresponding interest in the public at large to receive such information, and that in such cases, the defence of qualified privilege is available.” (Cusson, 53)
Expanding on that Justice Sharpe continue as follows: “Several trial judges have interpreted Grenier v. Southam Inc.,  O.J. No. 2193 and the House of Lords’ decision in Reynolds v. Times Newspapers Ltd.,  2 A.C. 127, to have opened the door to the defence of qualified privilege where the media reports on matters of public interest. In Leenen v.Canadian Broadcasting Corp. (2000), 48 O.R. (3d) 656 at 695, aff’d (2001), 54 O.R. (3d) 612, a case dealing with a television documentary involving a controversial drug, it was alleged that the plaintiff doctor was in a conflict of interest and had received a pay-off or kickback from the drug manufacturer. Cunningham J. ruled:
The defendants say that the CBC … has a statutorily mandated duty to inform Canadians on matters of public importance such as the health and welfare of its citizens. Given this mandate the defendants say that this broadcast is but one example of the CBC fulfilling its mandate. Until recently, there was some doubt as to whether publication to the world at large could ever give rise to an occasion of qualified privilege. However, that issue was definitively resolved by the Court of Appeal in Grenier v. Southam Inc.[citation omitted]. In that case, the court upheld the finding at trial that qualified privilege can attach to communication by the media published to the world at large if it is published in the context of a social or moral duty to raise the underlying issue. This principle was enunciated further by the House of Lords in Reynolds v. Times Newspapers, supra.
Cunningham J. proceeded to apply the Reynolds test for qualified privilege, the details of which I consider later in these reasons, but found that the defendant CBC had in fact acted contrary to the public interest by sensationalizing the issue, creating viewer interest through alarm and providing the show’s producer with a platform for his personal views. He found that the story was not presented in a fair and balanced manner but rather in a slanted and biased way known by the CBC to be inaccurate or untrue and the defence of qualified privilege ‘fail[ed] miserably’ (at p. 698).” (Cusson, 63-64)
Justice Sharpe delves into a discussion of the Hill v. Scientology (1994), 18 O.R. (3d) 385 case. In that case Justice Cory “identified two competing Charter values, freedom of expression and protection of reputation. He reviewed the Court’s freedom of expression jurisprudence but concluded, at para. 106, that ‘defamatory statements are very tenuously related to the core values which underlie s. 2(b)’ and ‘are inimical to the search for the truth.’ Although protection of individual reputation is not mentioned in the Charter, Cory J. identified, at para. 120, individual reputation as reflecting ‘the innate dignity of the individual, a concept which underlies all the Charter rights’ and is therefore “of fundamental importance to our democratic society.” (Cusson, 75)
When discussing the Evolution of the qualified privilege defense in England Justice Sharpe starts by referring to the case of Reynolds v. Times Newspapers Ltd. Particularly the portion of the decision where “Lord Nicholls held that a malice standard would easily satisfy the need to respect freedom of expression. However, in view of the difficulty of proving malice, such a standard offered inadequate protection for reputation. He opted instead for a more flexible and malleable standard of ‘responsible journalism’. While admitting that this approach imports some uncertainty which may result in some chilling effect, Lord Nicholls suggested that ‘[w]ith the enunciation of some guidelines by the court, any practical problems should be manageable’ (at p. 202F).” (Cusson, 88) He continues to emphasize “the ‘elasticity’ of the common law principle of qualified privilege in relation to matters of public interest and the undesirability of developing a subject-specific qualified privilege, Lord Nicholls held that the ‘responsible journalism’ standard ‘enable[d] the court to give appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern’ (at p. 204H). He then provided a non-exhaustive list of ten factors to be taken into account in determining whether the defendant had conducted itself in accordance with the standards of responsible journalism:
- The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
- The nature of the information, and the extent to which the subject-matter is a matter of public concern.
- The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
- The steps taken to verify the information.
- The status of the information. The allegation may have already been the subject of an investigation which commands respect.
- The urgency of the matter. News is often a perishable commodity.
- Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
- Whether the article contained the gist of the plaintiff’s side of the story.
- The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
- The circumstances of the publication, including the timing.” (Cusson, 89)
Justice Sharpe supported his Rynolds reference with the decision of Jameel v. Wall Street Journal Europe Sprl,  1 A.C. 359 [“Jameel“] and states “The leading speech was delivered by Lord Bingham who reiterated the Reynolds approach, describing the qualified privilege as ‘aris[ing] where a statement is defamatory and untrue’, but is nevertheless in the public interest (at para. 32). The privilege assumes ‘that there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify’ (at para. 32). He underscored that the ten factors listed by Lord Nicholls amounted merely to indicia as to whether the defendant had exercised responsible journalism, and not to ‘a series of hurdles to be negotiated by a publisher’ (at para. 33) and clarified that the appropriate locus or focus for the responsible journalism analysis related to ‘the thrust of the article’ (at para. 34). That is, a publisher need not establish that it acted as a responsible journalist in relation to each defamatory statement if it can establish that it acted responsibly in relation to the story as a whole, assuming that ‘the thrust of the article is true, and the public interest condition is satisfied’ (at para. 34).” (Cusson, 98)