Saturday, November 17, 2007

Just got a lot harder for Manitoba Metis Federation taxpayer funded plaintiffs and counselor Trachtenberg!

JOURNALISM AND THE RIGHT TO PUBLISH
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Landmark Ruling Establishes Principle Of Public Interest
By Kirk Makin Justice Reporter
The Globe And Mail
November 14, 2007
Page A1

The Ontario Court of Appeal made a landmark ruling that frees the news media to publish contentious allegations that benefit the public interest.

In a 3-0 ruling, the court yesterday said that it is high time for Canada to join other Commonwealth countries in recognizing that an indivudual's reputation cannot trump the public right to know - provided journalism is practised responsibly.

"The defence rests upon the broad principle that where a media defendant can show that it acted in accordance with the standards of responsible journalism in publishing a story that the public was entitled to hear, it has a defence even if it got some of its facts wrong," Mr Justice Robert Sharpe said.

The test case involved an Ontario Provincial Police officer, Danno Cusson, whose exploits in New York on the day of the Sept. 11, 2001, attacks were held up to question by The Ottawa Citizen in an article that suggested Constable Cusson acted as an unauthorized "renegade" rather than heroic figure.

Several media lawyers urged the court to create a public-interest defence that would bring an end to a chronic newsroom apprehension that has killed many a potentially important article over the years.

'Threat of litigation discourages free and open debate'

"This is a very important decision in terms of getting facts to the public," said Globe and Mail lawyer Peter Jacobsen, who helped argue the case.

He said that the decision ranks alongside a major freedom of expression case known as Dagenais, which established the importance of press freedom under the Charter of Rights and Freedoms. "This is going to allow editors to be much more confident that, once they have jumped through all the hoops, they can publish," Mr. Jacobsen said.

The 1994 Dagenais ruling of the Supreme Court said that, in weighing the need for a publication ban, judges would have to balance the prospect of tainting the jury pool against free expression guaranteed under the Charter. Writing for the majority, Chief Justice Antonio Lamer said a ban should be ordered only when it is necessary to prevent a "real and substantial risk" that the trial might not be fair and there are no reasonable alternatives to mitigate that risk.

In the Cusson case, Judge Sharpe, writing on behalf of Madam Justice Karen Weiler and Mr. Justice Robert Blair, noted that the defamation law was designed to ba a warning to those who are inclined to make a statement that could affect an individual's reputation.

"A newspaper that has properly investigated the story and has every reason to believe it to be true still walks on thin ice," he said.

"The fear or risk of being unable to prove the truth of controversial matters in bound to discourage the publication of information the public has a legitimate interest in hearing."

The court said that the problem the press has faced is that proving a matter in court can be extremely difficult even when it honestly and reasonably believes a well-researched story to be true.

"The threat of litigation under a legal regime that leaves no margin for error, even where the speaker took all reasonable steps to verify the facts, discourages free and open debate on matters of public importance," Judge Sharpe said.

"I recognize that adopting this defence shifts the focus of defamation law away from the truth and toward the conduct of the defendant. In my view, this is an acceptable price to pay for free and open discussion."

Mr. Jacobsen said the ruling means that those targeted in a tough news article will no longer be able to effectively "kill" its publication simply by refusing to comment on allegations.

He said that the sort of stories that will appear more frequently in light of the ruling are those involving government figures who may be guilty of ineptitute or malfeasance.

"I'll bet that story would have moved a lot faster," Mr. Jacobsen said, in a reference to an issue currently raging based on allegations against former prime minister Brian Mulroney.

At trial, a jury found that the defendants had established the truth of some, but not all the defamatory statements contained in the articles. It awarded Constable Cusson a total of $125,000 in general damages, but found that there was no actual malice on the part of any of the defendants and rejected the claims for special, aggravated and punitive damages.
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Journalists Granted New Libel Defence
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APPEAL COURT RULE
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Must Prove Acted Responsibly In Reporting Story
The National Post
November 15, 2007
Page A13

OTTAWA - Journalists accused of libel have a new defence, after a ruling handed down this week by the Ontario Court of Appeal.

Under the unanimous ruling written by Justice Robert Sharpe, journalists who write a story dealing with matters of public interest can be protected against libel suits, as long as they can prove they acted responsibly in researching and writing the story.

The ruling represents a significant shift away from the traditional common law, under which journalists being sued for libel had to prove the truth of the facts they reported.

The court ruled that obliging journalists to prove facts to the high standard of truth expected in courts of law puts too much of a muzzle on freedom of expression and debate.

"Where a media defendant can show that it acted in accordance with the standards of responsible journalism in publishing a story that the public was entitled to hear, it has a defence even if it got some of the facts wrong," the court ruled.

"Debate on matters of public interest will often be heated and criticism will often carry a sting and yet open discussion is the lifeblood of our democracy."

But the lawyer for the man whose libel lawsuit led to the ruling said the new defence is bad news for private citizens trying to protect their reputations from negative media reports.

"Now they need to prove not only that it's defamatory, but that the standard of responsible journalism ... was not met. That's an additional burden of proof," said Ronald Caza.

"I think the consequences are not good for the community at large and the rights of private citizens."

The ruling comes as a result of a libel suit brought by former Ontario Provincial Police officer Danno Cusson against the Ottawa Citizen and three of its reporters Doug Quan, Don Campbell and Kelly Egan.

'Open discussion is the lifeblood of our democracy'

Mr. Cusson sued for libel after the Citizen published reports about his activities at Ground Zero after the Sept. 11, 2001, attacks on New Yourk. The paper reported Mr. Cusson misrepresented himself and his dog as a trained RCMP sniffer-dog unit when in fact he was not an RCMP officer and his dog had no formal certification in search and rescue.

In deciding the libel suit, the jury ruled much of the information contained in the newspaper was true and was not libellous.

However, the jury ruled parts of the stories libellous and ordered the paper to pay Mr. Cusson $100,000.

The newspaper argued a defence of "qualified priviledge," saying that because the stories were in the public interest, the paper had the duty to publish in the circumstances that existed following the attacks. The trial judge allowed this defence for only one of the three reporters, but the newspaper appealed, leading to the present ruling.

In its ruling, the Court of Appeal agreed that "qualified provilege" does not apply, because a newspaper does not have an absolute right to publish stories on matters of public interest, without regard to their truth or falsehood.

However, the court said that a different defence, the "public interest defence for responsible journalism" could apply.

Despite opening the door to a "responsible journalism" defence the court ruled the new defence does not reverse the libel decision in the original case brought by Mr. Cusson against the Citizen.

Since the paper did nto try to argue a defence of responsible journalism during the trial, it cannot now make that argument on appeal, the court held.

The Citizen's lawyer Richard Dearden, said that while the court's rejection of the "qualified privilege" defence was disappointing, he is elated by the creation of the new "responsible journalism" defence. "It's definitely a landmark ruling," he said. "Now the media have the leeway to be wrong on stories of public interest if those stories are published responsibly."

CanWest News Service

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