“Public Interest” in Canada’s Blogging Laws
By Brian Madigan LL.B.
There are new laws in Canada that govern the matter of blogging on the internet. The Supreme Court of Canada determined that there must be new laws to protect amateur bloggers and others who proceeded in good faith to express their views, candidly in cyberspace.
The right to self-expression is a fundamental right which must be protected. The Court established a new defence to a defamation action based in libel or slander, namely, “public interest responsible communication”.
So, what does public interest mean?
The Court offered some important guidelines to assist in the determination in Grant vs. Torstar. Reproduced below is criteria, comments and guidelines drawn from the Court’s Judgment, “word for word”, without commetary.
However, the headnotes shown in italics in each point, are mine. They do not appear in Judgment. They are simply there to assist your review and analysis of the decision.
Guidelines of the Supreme Court of Canada on the determination of “public interest”:
• Law: to be protected by the defence of responsible communication, the publication must be on a matter of public interest
• Who decides: this is a matter for the judge to decide. … it is primarily a question of law
• Nature of Statement: the judge is asked to determine whether the nature of the statement is such that protection may be warranted in the public interest
• Substance: the determination ….. focuses on the substance of the publication itself
• Whole Publication: the judge must consider the subject matter of the publication as a whole
• Not in Isolation: The defamatory statement should not be scrutinized in isolation
• Method of Determination: How is “public interest” in the subject matter established?
• Curiosity Insufficient: First, and most fundamentally, the public interest is not synonymous with what interests the public
• Intense Curiosity Insufficient: The public’s appetite for information on a given subject — say, the private lives of well-known people — is not on its own sufficient to render an essentially private matter public for the purposes of defamation law
• Privacy Respected: An individual’s reasonable expectation of privacy must be respected in this determination
• Low Demand Irrelevant: Conversely, the fact that much of the public would be less than riveted by a given subject matter does not remove the subject from the public interest
• Limited Genuine Demand: It is enough that some segment of the community would have a genuine interest in receiving information on the subject
• No Test, No Exhaustive List: The authorities offer no single “test” for public interest, nor a static list of topics falling within the public interest
• Affect Public: Lord Denning M.R. described public interest broadly in terms of matters that may legitimately concern or interest people:
….Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment…
• Public Attention: the subject matter must be shown to be one inviting public attention, or
• Welfare of Citizens: the subject matter must be about which the public has some substantial concern because it affects the welfare of citizens, or
• Notoriety: the subject matter must be one to which considerable public notoriety has attached, or
• Controversy: the subject matter must be one to which considerable public controversy has attached
• Similar Laws: The case law on fair comment “is replete with successful fair comment defences on matters ranging from politics to restaurant and book reviews”
• Genuine Stake: Public interest may be a function of the prominence of the person referred to in the communication, but mere curiosity or prurient interest is not enough. Some segment of the public must have a genuine stake in knowing about the matter published
• Politics Too Narrow: Public interest is not confined to publications on government and political matters, as it is in Australia and New Zealand
• Public Figure Too Narrow: Nor is it necessary that the plaintiff be a “public figure”, as in the American jurisprudence since Sullivan. Both qualifications cast the public interest too narrowly
• Broad Subject Matter: The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion, and morality
• Democratic Freedom of Speech: The democratic interest in such wide-ranging public debate must be reflected in the jurisprudence
• Careful Deterimination: Care must be taken by the judge making this determination to characterize the subject matter accurately
• Avoid Narrow View: Overly narrow characterization may inappropriately defeat the defence at the outset
• Grant and Torstar: For example, characterizing the subject matter in this case simply as “Peter Grant’s business dealings” would obscure the significant public interest engaged by the article and thus restrict the legitimate scope of public interest
• Grant and Torstar: Similarly, characterizing the subject matter too broadly as “Ontario politics” might render the test a mere rubber stamp and bring unworthy material within the protection of the defence
• Statement Necessary: The question then arises whether the judge or the jury should decide whether the inclusion of a particular defamatory statement in a publication was necessary to communicating on the matter of public interest
• Just One Element?: Is this question merely a subset of determining generally whether the publication is in the public interest?
• Factor For Consideration?: Or is it better treated as a factor in the jury’s assessment of responsibility?
• Judicial Editorialization: …..whether a defamatory statement was necessary to communicating on a matter of public interest is a question of law for the judge, conceding, however, that this may require the judge to second-guess editorial judgment, and must be approached in a deferential way
• Determination of Publication not Statement: …..if the publication read broadly and as a whole relates to a matter of public interest, the judge should leave the defence to the jury…
• Statement is One of Fact: …. the justifiability of including a defamatory statement may admit of many shades of gray….. and should be left to the jury
• Responsible Conduct is a Fact: It is for the jury to consider the need to include particular defamatory statements in determining whether the defendant acted responsibly in publishing what it did
Well, that’s clear enough. It needs to be of interest to some members of the public, not everyone, but at least some identifiable group. One person is not enough.
It is not a matter of the curiosity of the public about a person of prominence; they are still entitled to their privacy. The decision is one of law, and the Judge must consider the subject matter as a whole. Certainly, if it affects the public as whole, then it is clearly a matter of public interest. A sufficient degree of notoriety may be all that is required, at least in the sense that news is news.
A Judge is cautioned about a definition that is too wide and equally cautioned about one that is too narrow. The jury then should decide whether any paraticular defamatory statement was necessary, and therefore justifiable, provided the publisher acted reasonably in the circumstances.
I should point out that civil cases can be tried by a Judge, or by a Judge and Jury as selected by the litigants. The Jury trial is a matter of right, so if one of the parties elects a Jury trial, then it will be a Jury trial. In such cases, the Judge decides the law and the determination of the facts are left to the Jury. In a trial before a Judge alone, the Judge decides both the facts and the law.
The Supreme Court of Canada therefore went to some length so as to distinguish bewteen that part of the case for the Judge (law), and that part of the case for the Jury (facts).
The determination of “public interest” is particularly of importance to bloggers. A national newspaper chain will have an entourage of lawyers on standby. The lone blogger posting comments or viewpoints on the internet is at much greater risk.
If the matter is “private” rather than “public”, then the old laws related to defamation continue to apply. If the matter is “public”, then the blogger who is considered to be a publisher, or a communicator is entitled to use the new “responsible communication” defence.
Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com
