Private Law Theory

Abstract:
The Supreme Court of Canada’s landmark decisions in Grant v Torstar Corp and Quan v Cusson have advanced freedom of expression in Canada by giving libel defendants protection against liability for false and defamatory facts, where the publisher acted responsibly in attempting to verify information that is in the public interest. In the opinion of the authors, these decisions strengthen core values underlying freedom of expression, including the pursuit of truth and democratic discourse, by facilitating public access to information about matters of public interest. The authors describe the development of this defence. The authors observe that communications about the private lives of public officials can be expected to fall into a ‘grey zone’ in establishing the ‘public interest’ component of the defence. In regards to the ‘responsible communications’ component, it is noted that the trial judge’s charge to the jury will be critically important to ensure that juries do not eviscerate the defence by requiring libel defendants to satisfy each of the non-exhaustive list of factors to consider in assessing responsibility. It is the opinion of the authors that in most cases common sense, rather than expert opinion, will be required to decide whether the diligence component of the defence has been met, and that expert opinion on the very issue that the trier of fact has to decide will be disallowed if it usurps the jury’s function.

Dearden, Richard and Wagner, Wendy, Canadian Libel Law Enters the 21st Century: The Public Interest Responsible Communication Defence (2010). Ottawa Law Review, Vol 41, No 2, 2010.

First posted 2016-01-18 07:16:52