Grant v Torstar Corp, 2009 SCC 61 (22 December 2009) This Canadian Supreme Court decision draws on the freedom of expression guarantee in the Canadian Charter to establish a new common law defence of ‘responsible public interest journalism’ to an action for defamation. The scope of this defence is similar to the expanded statutory defence of qualified privilege contained in the Defamation Act 2005 (Vic) s 30.
Peter Grant and his company brought a defamation (libel) action against the owners of the Toronto Star Newspaper. The action pertained to a newspaper article published by the Star that aired the views of residents critical of a proposed development by Mr Grant of a golf course on his lakeside property. The residents were suspicious that Grant was using his political influence to secure the necessary government approvals (the article quoted one resident as saying ‘everyone thinks it's a done deal’ because of Grant's influence). The reporter attempted to verify the allegations, and asked Grant for a comment, which Grant declined to provide.
The trial judge instructed the jury to consider the defences of fair comment and qualified privilege, but did not instruct it to consider a defence based on a concept of responsible communication in the public interest. The jury rejected the defences and awarded the plaintiff damages. The Court of Appeal held the trial judge erred in withholding the public interest defence from the jury and ordered a new trial.
The Canadian Supreme Court dismissed Grant's appeal and ordered a new trial. The Court held that the existing common law defences to defamation gave insufficient weight to the freedom of expression, enshrined in the Canadian Charter of Rights and Freedoms, in matters of public interest. The Court drew on comparative jurisprudence to establish a new defence of responsible communication in the public interest. The impugned publication must pertain to a matter of public interest, and the publisher must show that he or she was responsible in the circumstances, including by taking steps to verify the defamatory allegations.
Relevance to the Victorian Charter
Constitutional democracies have long grappled with the challenge of balancing the competing goals of promoting free expression and protecting the reputations of individuals. Grant v Torstar represents a tipping of that balance further in the direction of freedom of expression when it comes to the reporting of matters in the public interest. Beyond this general significance, however, the differences in existing defamation laws between the two jurisdictions mean the Canadian decision is likely to have minimal influence on the evolution of Victorian law, notwithstanding the existence of the Victorian Charter.
Both the Victorian (s 15) and the Canadian (s 2(b)) Charters contain protections of the freedom of expression. The Canadian Charter explicitly recognises the ‘freedom of the press and other media of communication’, whereas the Victorian Charter makes no specific mention of the freedom of the press. The Victorian Charter also protects the right of a person ‘not to have his or her reputation unlawfully attacked’ (s 13(b)); the Canadian Charter contains no equivalent protection. These superficial differences would suggest that Canadian defamation law would give greater weight to press freedom than Victorian law – yet, prior to Grant v Torstar, the opposite was the case.
The Canadian Court justified its establishment of the responsible communication defence on the basis that the common law defences of fair comment and qualified privilege gave inadequate protection to media outlets that responsibly published material in the public interest. To establish a common law defence of qualified privilege, for example, a defendant publisher must establish that it had a duty to the recipient to publish that information. This requirement of reciprocal duty/interest made the defence difficult to apply in matters involving mass media publications. As such, it did not assist the newspaper publishers in Grant's case.
But had the case occurred in Victoria, the need to establish such a defence would probably not have arisen at all. Following a national process of defamation law reform in Australia, the Victorian Government legislated a broader qualified privilege defence which abolished the reciprocity requirement (Defamation Act 2005 (Vic) s 30). To establish the Victorian statutory qualified privilege defence, the publisher need only establish that: (a) the recipient had an interest in having information on the subject; (b) the matter was published in the course of giving the recipient information on that subject; and (c) the conduct of the defendant in publishing the material was reasonable in all the circumstances.
In determining the reasonableness of the publisher's conduct, the statute enables the Court to take into account a range of factors, including the extent to which the publication is in the public interest, the seriousness of the defamatory imputation, the nature of the business environment in which the defendant operates, the steps taken by the publisher to verify the information, and the integrity of the sources relied upon. The legislature thus clearly contemplated the application of the qualified privilege defence to mass media publications, preferring to let the court decide whether the publisher acted reasonably in publishing the defamatory publication by balancing a range of factors sensitive to both the right of free expression and the protection of reputation.
Recalling that Victoria's Defamation Act must be interpreted in a way that is compatible with the human rights enshrined in the Victorian Charter (s 32), Grant's case could potentially be cited in support of an argument that the ‘public interest’ considerations be given greater weight by courts than the ‘reputation’ safeguards when conducting the reasonableness analysis – such a weighting being consistent with a broad conception of the freedom of expression. But the similarity of the Victorian statutory qualified privilege defence to the new defence developed by the Canadian Court in Grant means that much of the celebrated enlargement of press freedoms articulated in the Canadian case are of limited practical application in Victoria.
Looks like this time it's the Canadians playing human rights catch-up.
The decision is available at http://www.canlii.org/en/ca/scc/doc/2009/2009scc61/2009scc61.html.
Fergus Green is a lawyer at Allens Arthur Robinson