Nancy Hamilton's Notes

Nancy Hamilton's Notes O Canada: The Press is Now Better Able to Stand on Guard for Thee

July 27, 2007: It's hard to believe that almost three years ago (VIA Media Postcard 7/27/07, "Conrad Black—An Absence of Actual Malice"), I was musing over the Canadian media coverage of the Chicago trial and conviction of media mogul Lord Conrad Black (whose newspaper empire included properties in England, Canada, Chicago, Israel and Austria), for taking illegal payments from his former holding company Hollinger International. Black, who was sentenced in March 2008 to 6˝ years in prison, was well known and feared for his oft-successful offensive litigious filings to head off critical or unflattering press reports in Canada. Under Canadian law, at the time, all a defamation plaintiff was required to prove was (1) that the impugned words tended to lower the plaintiff's reputation in the eyes of a reasonable person; (2) the words referred to the plaintiff; and (3) the words were communicated to at least one person other than the plaintiff. The plaintiff was not required to show that the defendant intended harm or even that he was careless. In other words, it was a matter of strict liability. As a result, the Canadian press treated Lord Black with kid gloves while the American press punched away, protected by the First Amendment and the constitutional requirement of actual malice before liability could be found.

Fast-forward three years: June 24, 2010: Today, the U.S. Supreme Court held the "honest services law," under which both Black and Jeffrey Skilling (of Enron fame) were convicted and sentenced to prison, is unconstitutionally vague and sent both cases back to the lower courts. This brought me back to my musings about the dilemma faced by the Canadian press in investigating and writing stories about Lord Black. Times have changed. So too has the law of defamation in Canada—and significantly so.

The Canadian press need no longer be as timorous of Lord Black's erstwhile litigious reputation. The prospect of strict liability for defamation facing the Canadian press is no more, thanks to two Canadian Supreme Court landmark decisions issued on the same day in December 2009: Grant v. Torstar Corp., (2009) 3 S.C.R. 640 (Can.) and Quan v. Cusson, (2009) 3 S.C.R.712 (Can.). Although the Canadian Court expressly chose not to go so far as requiring actual malice of a public figure as under New York Times v. Sullivan, 376 U.S. 254 (1964), it did, nonetheless, take a middle ground in enunciating a new defense against defamation for members of the public or media who engage in "responsible communication." Noting "the trend is clear," the Canadian Court stated that the defense allows publishers to avoid liability if they can establish that they acted responsibly in attempting to verify the information on a matter of public interest. The determination of whether or not the subject matter of the publication is of public interest is made by the judge. If public interest is shown, the jury then decides whether the communication was "responsibly made" by the defendant. The defense is applicable to not only traditional journalists but bloggers and others engaged in matters of public interest. While time will tell exactly how the new "responsible communications" defense plays out, it is certainly a step in the right direction.

— Nancy Hamilton is a partner at Jackson Walker. She can be reached at nhamilton@jw.com.