In the companion cases of Breeden v Black, 2012 SCC 19 (“Breeden”) and Éditions Écosociété Inc. et al. v Banro Corp., 2012 SCC 18 (“Banro”), the Supreme Court of Canada clarified the manner in which courts should determine whether to exercise jurisdiction over multijurisdictional defamation claims involving foreign defendants.

Although the decisions support the ability of plaintiffs to advance defamation claims in any Canadian jurisdiction in which allegedly defamatory material is published, the decisions also leave open the possibility that the law will evolve to reduce the potential for forum shopping.

Background

In Breeden, the plaintiff commenced defamation actions in Ontario against the defendants, who were certain directors, advisors, and a vice president of a corporation headquartered in the United States. The plaintiff alleged that statements issued by the defendants and posted on the internet were defamatory and were published in Ontario when they were downloaded, read, and republished in Ontario by Canadian newspapers. The defendants brought a motion to have the defamation actions stayed on the grounds that the Ontario court should not exercise jurisdiction because there was no real and substantial connection between the actions and Ontario or, alternatively, because an American court was the more appropriate forum.

The facts in Banro are similar. There, the defendants, who were based in Québec, published a book which commented on the international mining activities of certain corporations, including the plaintiff. Copies of the allegedly defamatory book were available to be purchased or read in Ontario. The plaintiff brought an action in Ontario against the defendants alleging that the book was defamatory. The defendants moved to stay the Ontario action on the basis that there was no real and substantial connection between the action and Ontario, and that a Québec court was the more appropriate forum.

Decisions

In both cases, Justice LeBel, writing for the Court, applied a new analytical framework for determining whether a court should exercise its jurisdiction. That analytical framework was established in the companion case of Club Resorts Ltd. v Van Breda, 2012 SCC 17 (“Club Resorts”), reasons of which were issued at the same time as those in Breeden and Banro.

The analytical framework involves a two-stage analysis. In the first stage, which depends on the application of the real and substantial connection test, the plaintiff must demonstrate a “presumptive connecting factor” that links the subject matter of the litigation with the jurisdiction. If the plaintiff demonstrates a presumptive connecting factor, then there will be a presumption of jurisdiction unless the defendant rebuts the presumption. In Club Resorts, the Court identified a non-exhaustive list of presumptive connecting factors. The most important of those presumptive connecting factors, for the purposes of Breeden and Banro, is the commission of a tort in the jurisdiction.

The defendant may rebut a presumption of jurisdiction by establishing “facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them.” For example, where the presumptive connecting factor is the commission of a tort in the jurisdiction, rebutting the presumption may be possible “where only a relatively minor element of the tort has occurred in the province.” If no presumptive connecting factor applies in the circumstances of the case, or if the presumption of jurisdiction resulting from such a factor is rebutted, the court cannot assume jurisdiction.

If the plaintiff establishes jurisdiction, the court will proceed to the second stage of the analysis, which involves application of the doctrine of forum non conveniens. At this stage, the burden shifts to the defendant to demonstrate that the court should not exercise jurisdiction because the court of another jurisdiction is the more appropriate forum for the hearing of the action. To succeed, a defendant must show that the other forum is “clearly more appropriate” because it is better suited to “fairly and efficiently” resolve the dispute. The defendant may point to a variety of factors, including the locations of the parties and witnesses, the possibility of conflicting judgments, and the substantive law that should apply to determine the claims.

In Breeden and Banro, the Court concluded that jurisdiction had been properly assumed. There was a real and substantial connection between Ontario and the defamation actions based on the fact that the alleged torts had been committed in Ontario. The Court was not convinced that the defendants in either case had rebutted the presumption of a real and substantial connection.

Significantly, the Court recognized that the analytical framework raises concerns about libel tourism, which is a variety of forum shopping in which a plaintiff brings a defamation action in the jurisdiction most likely to provide a favorable result. The prospect of libel tourism arises because the tort of defamation “crystalizes” upon publication of defamatory material.

Defamatory material is “published” whenever it is viewed or read by a third party, and is presumed to be “published” when it is printed in a book. As a result, where allegedly defamatory material is published in multiple jurisdictions – a feat easily achievable, even inadvertently, due to the ubiquity, universality, and accessibly of the internet – the courts of multiple jurisdictions will generally be able to exercise jurisdiction over the same claim.

Because the law of defamation varies between jurisdictions such that it is easier or more difficult for plaintiffs to establish their claims depending on their choice of jurisdiction, plaintiffs can strategically advance their actions in the jurisdictions in which they have the greatest juridical advantage. For example, American defamation law may require some plaintiffs to demonstrate malice on the part of the defendant as a pre-requisite to establishing liability. Because no such requirement exists in Canada, plaintiffs may enjoy a juridical advantage by pursuing their defamation claims in Canada rather than in the United States.

The Court’s reasons in Banro may provide courts in future cases with a way to restrain libel tourism. After concluding that jurisdiction had been properly assumed, the Court turned to determine whether the court of another jurisdiction was a more appropriate forum for the hearing of the action. In the course of applying the doctrine of forum non conveniens, the Court considered the question of which substantive law should be applied to determine the claim. Courts have traditionally applied the lex loci delicti rule (“the place where the tort occurred”) to decide which law applies to determine tort claims. The rationale for the application of the lex loci delicti rule is that, in the case of most torts, the occurrence of the wrong constituting the tort occurs in the same jurisdiction in which the consequences of the wrong are suffered.

The Court recognized that the lex loci delicti rule may not be appropriate in all defamation cases. In certain cases, the reputational harm caused by the publication of defamatory material may be suffered in a jurisdiction other than the one in which the defamatory material was published. The Court suggested that in those circumstances it may be more appropriate to apply a rule based on the “place of most substantial harm to reputation.” According to that rule, the applicable law would be that of the jurisdiction most closely connected to the harm occasioned by the publication. Such an approach could eliminate the strategic advantage to libel tourism by providing that the same law would apply regardless of where the matter was heard.

The Court concluded that it did not need to decide whether the lex loci delicti rule ought to be abandoned as the choice of law rule in multijurisdictional defamation cases in favour of an approach based on the location of the most substantial harm to reputation. The Court observed that, on the facts of both cases, application of either rule had the same effect. Under a rule based on the location of the most substantial harm to reputation, Ontario law would apply. Alternatively, under the lex loci delicti rule, Ontario law would also apply because the alleged torts were committed in Ontario.

Implications

Breeden and Banro challenged the Court to consider the appropriate balance between the protection of reputation, freedom of expression, and jurisdictional restraint. The decisions clarify that Canadian courts will have presumptive jurisdiction over defamation cases involving foreign defendants if the defamatory statements are published to at least one person in the jurisdiction. For example, if a person in Hong Kong were to create an allegedly defamatory website, an Ontario court would have presumptive jurisdiction over an action brought by the plaintiff against the person in Hong Kong if the plaintiff demonstrated that at least one other person in Ontario viewed the website.

This precedent will likely have significant consequences, particularly given the ubiquity, universality, and accessibility of the internet. As Lebel J. recognized, with a “globalized world comes the sometimes poisonous gift of ubiquity.” Statements published in one location may, with the aid of the internet, be widely disseminated and viewed in a multitude of jurisdictions all over the world. Given the ease by which allegedly defamatory material may be published in Canadian jurisdictions through the use of the internet, plaintiffs in cases involving internet defamation will likely face little difficulty establishing a presumption of jurisdiction.

As a result, litigation involving jurisdictional disputes in defamation cases will likely turn on whether the foreign defendant is able to rebut a presumption of jurisdiction or demonstrate that another jurisdiction is a more appropriate forum. Foreign defendants may succeed in rebutting a presumption of jurisdiction by demonstrating that only a relatively minor element of the tort of defamation, such as publication, occurred in the jurisdiction.

Although the analytical framework applied in Breeden and Banro may create a heightened risk of libel tourism in future cases, the Court’s remarks with respect to the appropriateness of a choice of law rule based on the location of most substantial harm to reputation may provide lower courts with a legal foundation to curb libel tourism.

Finally, it must be recognized that the analytical framework applied in Breeden and Banro is subject to legislation in certain provinces that governs the assumption of jurisdiction and the doctrine of forum non conveniens: see e.g. Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28. However, because those statutes contemplate an approach similar to the analytical framework applied in Breeden and Banro, the reasoning in those cases is likely to influence the manner in which courts in those provinces determine whether to exercise jurisdiction over defamation cases involving foreign defendants.

This article was originally published at The Court (Osgoode Hall Law School).

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Earlier this week, the Ontario Superior Court of Justice released its decision in Baglow v. Smith, 2011 ONSC 5131. The decision suggests that an allegedly defamatory statement made in a debate on blogs or internet forums may not be found to be defamatory if the plaintiff previously engaged in the debate but did not respond to the statement despite having the opportunity to do so.

The plaintiff claimed that the defendants defamed him by making statements that exceeded the boundaries of their normally acrimonious political debate on the internet. In particular, the plaintiff complained that the defendants defamed him by branding him “one of the Taliban’s more vocal supporters” on an internet message board. The words complained of referred back to an ongoing discussion, largely on the plaintiff’s blog, where the parties had debated the validity of the trial of Omar Khadr. The parties had aggressively berated each other, and often employed colourful derogatory characterizations. Although the plaintiff had the opportunity to respond to the impugned statements on the internet message board, he did not do so. The defendants brought a summary judgment motion to dismiss the action on the basis that the statements were not defamatory or, alternatively, that the defence of fair comment applied.

Mr. Justice Annis concluded that the impugned statements were not defamatory and granted summary judgment dismissing the action. Significantly, the Court proceeded to remark in obiter that the conclusion that the statements were not defamatory was supported by the fact that the statements were made “in the context of an ongoing blogging thread over the Internet” that provided each party with the opportunity to “respond to disparaging comments before the same audience in an immediate or relatively contemporaneous time frame.” According to the Court, “a statement is not derogatory when made in a context that provides an opportunity to challenge the comment and the rules of the debate anticipate a rejoinder, unless the statement is wholly outside the scope of the debate or otherwise so outrageous as to prevent meaningful argument from continuing.”

In the Court’s view, the fact that the statements were made in the context of an internet debate forum was a contextual factor to consider in determining whether the statements were defamatory:

[58] Although I am satisfied that the words complained [of] are not capable of damaging the reputation of the plaintiff, I am of the view that there is another contextual factor that would further bolster this conclusion, namely that the alleged defamatory words were made in the context of an ongoing blogging thread over the Internet.

[59] Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or a relatively contemporaneous time frame.

[60] This distinguishes the context of blogging from other forms of publication of defamatory statements. One exception could be the live debate, of which blogging constitutes the modern written form.

[61] I am not suggesting that defamation can never occur in a live debate. I do say however, that the live debate forum should be considered as a contextual factor to determine whether the statement is defamatory in so far as whether it is complete.

The Court suggested that the defamatory sting arising from statements made on the internet may be substantially reduced or eliminated by responding to the statements:

[62] An example that does not in any manner reflect the Court’s views on these issues, but which might serve to explain how derogatory, even defamatory remarks are expected to be parried in a live debate so as to remove the “sting of the libel” and attenuate any threats of diminution of reputation might be as follows:

[The defendant] knows full well that I abhor what the Taliban stand for. His calling me one of their supporters because I think they should be entitled to due process in accordance with International law would be like me calling him (some derogatory descriptor, e.g. “a Nazi fascist”) because he wants to trample the rights that Canadians cherish, etc. [Example provided by the Court]

[63] Given that the plaintiff pleads his belief that “there is a reasonable likelihood of damage to my reputation if it became generally believed that I supported the enemies of the Canadian Forces”, it seems that the tendency of the comment to lower his reputation, particularly when arising in the form of a comment in a debate, could have been quickly nipped in the bud by a simple rejoinder in the fashion described above. This would have had the additional benefit of allowing him to score some points of his own.

The Court’s comments were based on the principle that a statement is defamatory if it tends to injure the reputation of the person to whom it refers by lowering him or her in the estimation of right-thinking members of society: Baglow, at para. 11.  Accordingly, the issue of whether the statements on the blog were defamatory was to be judged through the eyes of its readers:

[64] More importantly to the issue of context, the blogging audience is expecting and would indeed want to hear a rejoinder of this nature where the parry and thrust of the debaters is appreciated as much as the substance of what they say.

[65] In essence, I am suggesting that the Court, in construing alleged defamatory words in an ongoing debate, should determine whether the context of the comment from the perspective of the reasonable reader or listener is one that anticipates a rejoinder, which would eliminate the possible consequence of a statement lowering the reputation of the plaintiff in their eyes.

[66] To some extent the Court is attempting to decide whether the debate should have gone forward, such that walking off the blogging stage, so to speak, is a form of “gotcha” contrary to the rules governing the debate.

[67] I realize that this sounds like a form of defence of mitigation of a defamatory comment. But I see it more as an uncompleted comment, something akin to a plaintiff arguing that he or she has been defamed by a question, when the response was what the audience was expecting.

It appears that the Court’s view was a response, in part, to the concern that the threat of legal action may chill debate on the internet:

[70] Bringing an action on the comment in mid-debate runs contrary to the rules and has the effect of chilling discussion. If allowed, it places the opposing party in a defensive mode, rather than an offensive one, strategically putting that party at a disadvantage.

[74] The comment of the defendant Smith was on topic and generally consistent with the language and positions taken in the on-going debate. Accordingly, in no sense was it one that would have had any different effect on the plaintiff’s reputation from other derogatory remarks made throughout the blogs. Like those comments, it should have been answered to remove the sting, if any, and to comply with expectations of readers of these blogs.

It is interesting to note that the impugned statements were made on an internet message board that was distinct from the blogs on which much of the previous debate had occurred. The Court appears to have considered the comments made in all of these forums as a whole rather than concentrating on isolated comments in determining whether the impugned statements were defamatory: Baglow, at para. 27. However, one might question whether the forums had the same audience, and whether a reasonable reader will  anticipate a rejoinder in a place on the internet that differs from the one where the previous debate occurred.

In any event, the Court’s comments should not be read to suggest that persons defamed on the internet should necessarily enter the fray and respond to defamatory comments if given the opportunity to do so. The allegedly defamatory statements in this case were made in the context of an acrimonious debate in which the plaintiff was found to have participated. This is distinguishable from circumstances in which a plaintiff finds themselves defamed by statements made on a blog or message board in which they have not participated. In these cases, the context of the comment from the perspective of the reasonable reader will not be one that anticipates a rejoinder. It may be advisable for victims of internet defamation in these circumstances to avoid responding to defamatory comments in order to avoid inviting further attention to the matter and increasing the harm to their reputation.

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Quoted on Slaw, the Heenan Blaikie LLP Entertainment and Media Law Signal, and also posted on the International Forum for Responsible Media.

While the internet provides users with an environment in which socially valuable anonymous speech can flourish, it also provides users with an opportunity to defame others behind a shield of anonymity. If these users can be identified, they may be held liable for defamation. Unfortunately for plaintiffs, the identities of these individuals are usually known only by the website or internet service provider (“ISP”) through which the statements were made, and these entities generally decline to disclose a user’s identity in the absence of a court order compelling them to do so. Faced with a growing stream of plaintiffs who seek these kinds of orders, courts have sought to craft approaches to evaluating applications for disclosure that strike an appropriate balance between the privacy interests of anonymous internet posters and the reputational interests of plaintiffs.

Yesterday, the Ontario Divisional Court released its decision in Warman v. Fournier et al, 2010 ONSC 2126 (Div. Ct.) rev’g (2009), 309 D.L.R. (4th) 227, 76 C.P.C. (6th) 155 (Ont. S.C.J.) (“Warman”). At issue was whether the disclosure provisions of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) automatically entitle plaintiffs in internet defamation cases to obtain the identifying information of anonymous posters from websites and ISPs, or whether courts must balance the interests of plaintiffs with the freedom of expression and privacy interests of anonymous posters. The decision is now the leading authority in Ontario for the proposition that the objectives of the disclosure obligations under the Rules must be balanced with the right of freedom of expression in internet defamation cases. This article discusses the background, holding, and implications of Warman.

1. Background

The Respondent commenced an action against the Appellants, the operators of an internet message board, and eight anonymous message board participants with respect to a series of allegedly defamatory postings. After commencing the action, the Respondent brought a motion for an order compelling the Appellants to comply with Rule 76.03 of the Rules which required the Appellants to file an affidavit of documents that disclosed the email and internet protocol (“IP”) addresses of the anonymous posters in order to allow the Respondent to identify the posters and serve them with the statement of claim.

The motions judge rejected the Appellants’ submission that the Respondent was required to establish a prima facie case of defamation before disclosure could be ordered. Instead, Justice Kershman concluded that Rule 76.03 of the Rules required the Appellants to disclose all documents in their power or control and that such disclosure should be automatic upon the issuance of a statement of claim because the information was relevant and not protected by privilege.

This decision stood in stark contrast with earlier cases that offered some protection to the privacy interests of internet users by requiring plaintiffs to demonstrate a bona fide or prima facie case of defamation before ordering disclosure (see: previous posting). The motions judge distinguished these cases on the basis that the Respondent was seeking to compel the Appellants to follow the Rules as required by named parties to the action, whereas the other cases involved discretionary orders for the production of documents from third parties.

2. Holding on Appeal

The Divisional Court unanimously allowed the appeal and remitted the matter to a different motions judge for re-consideration, recognizing that the anonymous posters’ right of freedom of expression under the Charter should have been taken into account in considering the Respondent’s request for disclosure under the Rules. Moreover, the Court noted that the posters’ express decisions to remain anonymous gave them a reasonable expectation of privacy that weighed in their favour.

In rejecting the notion that disclosure should be automatic, the Court also expressed concern for the ease by which a plaintiff could abuse the Rules by filing claims in a spurious manner simply to identify an anonymous poster:

If disclosure were automatic, a plaintiff with no legitimate claim could misuse the Rules of Civil Procedure by commencing an unmeritorious action for the sole purpose of revealing the identity of anonymous internet commentators, with a view to stifling such commentators and deterring others from speaking out on controversial issues. For this reason, the commencement of a defamation claim does not trump freedom of expression or the right to privacy.

[Warman, at para. 33]

After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules:

  • whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
  • whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;
  • whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and
  • whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

[Warman, at para. 34]

In concluding that plaintiffs should be required to meet a prima facie standard rather than a lower bona fide standard, the Court emphasized the importance of protecting freedom of expression and noted that there was no concern that the higher standard would deprive applicants of a remedy:

In para. 34 of BMG [2005 FCA 193], the Federal Court of Appeal expressed the concern that, in that case, imposition of a prima facie case standard would effectively strip an applicant of a remedy because the plaintiff could not know the actual case it wished to assert against the defendants until it knew not only their identities but also the nature of their involvement in the [internet] file-sharing activities. Because the present proceeding is a defamation action, that concern does not arise. Unlike BMG, the respondent knows the details of precisely what was done by each of the unknown alleged wrongdoers.

In addition, because this proceeding engages a freedom of expression interest, as well as a privacy interest, a more robust standard is required to address the chilling effect on freedom of expression that will result from disclosure. It is also consistent with the recent pronouncements of the Supreme Court that establish the relative weight that must be accorded the interest in freedom of expression. In the circumstances of a website promoting political discussion, the possibility of a defence of fair comment reinforces the need to establish the element of defamation on a prima facie basis in order to have due consideration to the interest in freedom of expression. On the other hand, there is no compelling public interest in allowing someone to libel and destroy the reputation of another, while hiding behind a cloak of anonymity. The requirement to demonstrate a prima facie case of defamation furthers the objective of establishing an appropriate balance between the public interest in favour of disclosure and legitimate interests of privacy and freedom of expression.

[Warman, at paras. 41 – 42]

3. Implications

Warman represents an important recognition that while internet users’ anonymity ought not to be protected absolutely, the mere commencement of a defamation action should not give rise to an automatic entitlement to information identifying a previously anonymous poster without a consideration of the interests of privacy and freedom of expression.

Nevertheless, there is still uncertainty with respect to the degree of protection that courts will afford to anonymous posters in the future. Under Canadian law, plaintiffs have two ways to seek disclosure in internet defamation cases. Apart from identifying anonymous defendants by seeking pre-action discovery or production of relevant information under procedural rules, as occurred in Warman, plaintiffs may also bring independent actions for disclosure of the identity of anonymous defendants by way of an equitable bill of discovery known as a “Norwich order”. Norwich orders were introduced in the decision of the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.) in which it was held that where a third party becomes involved in the tortious acts of others, that third party has a duty to disclose the identity of the tortfeasor so that the plaintiff may pursue its remedies. The Norwich factors were recently confirmed by the Ontario Court of Appeal in GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619 and applied in the internet defamation context by the Ontario Superior Court of Justice in York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.) (“York University”):

  • whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
  • whether the applicant has established a relationship with the third-party from whom the information is sought, such that it establishes that the third party is involved in the acts;
  • whether the third party is the only practicable source of the information;
  • whether the third party can be indemnified for costs to which it may be exposed because of the disclosure; and
  • whether the interests of justice favour obtaining the disclosure.

[York University, at para. 13]

Although the second and fourth Norwich factors were not relevant in Warman because they apply only to third party respondents rather than co-defendants [see Warman, at para. 39], some of the other Norwich factors are similar to the considerations set out in Warman that are now applicable to the question of whether a court should order disclosure under the Rules. However, an important difference remains. While the approach under Warman requires plaintiffs to demonstrate a prima facie case of defamation, Norwich jurisprudence has required plaintiffs to meet the lower bona fide standard. For example, even though the plaintiff in York University managed to establish a prima facie case of defamation, the court did not require the plaintiff to demonstrate more than a bona fide case. Although Warman provides compelling reasons to prefer the higher prima facie standard where the plaintiff seeks disclosure through a Norwich order, it remains open for courts to require plaintiffs to meet the lower standard instead.

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Also posted on Law is Cool and quoted on Slaw, the Wise Law Blog, the Heenan Blaikie LLP Entertainment and Media Law Signal, the International Forum for Responsible Media, and the Blog Law Blog.

In the recent decision of Grant v. Torstar Corp., 2009 SCC 61 (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 (“Quan”), the Supreme Court of Canada sought to strike a more appropriate balance between freedom of expression and the protection of reputation by creating the new defence of “responsible communication on matters of public interest” (the “Defence”). The Defence allows defendants in libel cases where statements of fact are at issue to evade liability if they can show that they acted responsibly in reporting on a matter of public interest, even if the statements of fact are untrue. Prior to the decision, defendants could not avoid liability in these cases unless they showed that the statement was substantially true (the defence of justification), or that the statement was made in a protected context (the defence of privilege).

Importantly, the Defence applies not only to journalists and print-based publishers – the types of defendants in Grant and Quan – but also to non-journalist bloggers and users of other online media:

[T]he 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. I agree … that the new defence is “available to anyone who publishes material of public interest in any medium”. [Grant, at para. 96]

[Emphasis added]

Although the extension of the Defence to non-journalist bloggers and users of other online media is an important recognition of the growing relevance and legitimacy of these groups, the Defence is – at least currently – unlikely to protect most members of these groups. To gain the protection of the Defence, the defendant must establish two elements: (1) that the publication is on a matter of public interest; and (2) that the publication was responsible, in that the defendant was diligent in trying to verify the allegation. The trial judge will determine the first element. If the judge concludes that the first element is met, the jury will determine the second element, having regard to several factors:

  • the seriousness of the allegation;
  • the public importance of the matter;
  • the urgency of the matter;
  • the 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

In assessing whether the defendant was diligent, the jury will be guided by “established journalistic standards”:

[M]any actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]

[Emphasis added]

This indicates that the same journalistic standard must be applied to every defendant irrespective of whether or not they are journalists. As a result, the Defence will likely not apply to non-journalist bloggers and users of other online media unless they perform the due diligence expected of a journalist in the circumstances.

The problem for many members of these groups is that they are generally not guided by established journalistic norms. Although they may approach online publishing in good faith and with a level of diligence reasonably expected of non-journalists, this level of diligence is unlikely to meet the required journalistic standard. For example, although journalists will generally make a point of seeking the plaintiff’s side of the story and speaking directly to witnesses and experts, non-journalist bloggers – who are generally unpaid for their efforts – will rarely have the time, resources, training, or willingness to do so. As one American commentator argues,

blogging and journalism clearly differ. The former ‘implies that a disinterested third party is reporting facts fairly’ (Andrews, 2003: 64). Blogs are ‘unedited, unabashedly opinionated, sporadic and personal’ (Palser, 2002) – in many ways, the antithesis of traditional US journalism. Some say that is the best thing about them. ‘Journalism is done a certain way, by a certain kind of people,’ but bloggers “are oblivious to such traditions” (Welsh, 2003). [Jane B. Singer, “The political j-blogger: ‘normalizing’ a new media form to fit old norms” (2005) 6(2) Journalism 173 at 176]

[Emphasis added]

Even if a non-journalist blogger or user of other online media does engage in the level of diligence required to meet the journalistic standard, they may unknowingly fail to do so in a way that produces a strong record of evidence from which a court can conclude that they did act diligently. As a result, many of these defendants may simply not have access to the protection of the Defence.

Nonetheless, Grant does not foreclose the possibility that courts will apply a different diligence standard to non-journalist bloggers and users of other online media as the “norms of new communications media” evolve. Although the court isn’t clear on this point, these groups might be able to gain the protection of the Defence in future cases even if they haven’t performed their diligence in the same way that a traditional journalist would have:

While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]

[Emphasis added]

Even if the standard applicable to these groups does not shift to allow them to gain the protection of the Defence, juries – who have been tasked with the responsibility for assessing whether the defendant was diligent – may be sympathetic to these groups and apply the journalistic standard less rigidly.

In summary, although the Defence extends to non-journalist bloggers and users of other online media, many members of these groups are unlikely to be protected by the Defence because it requires that they performed the due diligence expected of a journalist. Nonetheless, the law does not necessarily foreclose the possibility that courts will apply a different diligence standard to these groups in future cases, or that juries will less rigidly apply the existing journalistic standard.

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Also posted on Law is Cool and quoted in the Canadian Association of Journalists Media Magazine at p. 27.

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