Canada Court Ruling: Responsible Journalism

The Ontario Court of Appeal released what has been called a "historic" ruling last month, yet unless you are a journalist or work for the media the case likely flew below your radar screen.

In case you missed it, I am referring to the Danno Cusson decision and the court's ruling that apparently gives the media a new defence to use in defending defamation actions.

Defamation is those pesky lawsuits people bring against the media for harming their reputations. This brand new defence is called "responsible journalism." The media can now, or so it is claimed, successfully defend themselves merely by showing they acted responsibly - that they lived up to the standards of responsible journalism.

Call me a cynic but I just don't buy it.

Leaving aside for a moment the utter vagueness of this defence, I have to tell you I doubt this ruling is going to do anything other than cause headaches for the media. Any attempt to use this defence will bring judges and juries into the newsrooms of the nation.

I can see it already. Responsible journalism defences will fall for any of the following reasons: The language used was too sensationalistic; the story wasn't important enough to merit the space; you didn't speak to every possible source; the sources you used were biased; you didn't critically test the information given; you should have done more to verify the information; you didn't report the other side adequately; you rushed to judgment; you didn't interpret the documents properly; the tone of the article was too shrill. And on and on.

As I see it, all this case has done is give courts more reasons to shoot down media defences and has given the courts the right to second guess every editor's work. Trials and pre-trial examinations will expand while this new defence is argued. Expert witnesses will be called by each side.

LAWYERS' FEES

On the other hand, I suppose this could be a good thing as lawyers' fees will have to go up to deal with the extra work this new defence will create.

Why am I so skeptical? A lot of it has to do with the facts of the Cusson case itself. The Ottawa Citizen published three items criticizing Cusson, an OPP constable who travelled to Ground Zero on his own initiative with his dog, and had been portrayed as a hero for his rescue efforts. The Citizen did extensive research and believed Cusson not only did not deserve the hero designation but rather deserved criticism for his conduct.

In researching their articles Citizen reporters spoke with Cusson's OPP supervisor, the K-9 co-ordinator of the New York State Police and a New York state trooper. They obtained "video, photographic and oral evidence" concerning Cusson. They spoke with Cusson and published his position. They did not rush to judgment nor did they use sensationalistic language. The articles were clearly on matters of public interest.

In short, they did what one would expect from responsible journalists. Yet the Court of Appeal refused to disturb the award of $100,000 plus costs. The reason given for this refusal is the issue of responsible journalism wasn't litigated or argued at the trial, or so the court stated.

That seems rather odd. The trial heard extensive evidence of what the Citizen did in putting the story together. It just doesn't sit right with me that the Court of Appeal would refuse to consider this new defence. They created this new defence of responsible journalism but then they refused to even consider whether it might apply to the case at hand.

This is very troubling particularly since the Citizen did have credible evidence to support many of the allegations in their stories. If what the Citizen did in this case did not amount to responsible journalism then I am not sure when this defence would apply.

So let's not celebrate just yet. Let's wait and see whether this ruling proves to be historic or just a royal pain for the media.