Bill Doskoch: Media, BPS*, Film, Minutiae

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How David Eaves misread the SCOC libel rulings

Noted legal scholar David Eaves says that the two Supreme Court of Canada rulings on libel law means that legally speaking, there’s no such thing as journalists, only journalism.

So why doesn’t he tell you that’s the way it’s always been in this country?

Here is my post linking to news about the rulings.

Here’s the rulings themselves:

Grant v. Torstar Corp., 2009 SCC 61

Quan v. Cusson, 2009 SCC 62

Here is a quote from a blog post by Eaves, who describes himself on his blog as a public policy entrepreneur:

This is about all us – and our rights and responsible in a democracy in the internet age. Indeed, as if to hammer home this point the justices went out of their way to in their decision (Grant vs. Torstar – BD) to essentially say: there is no such thing as “a journalist” in the legal sense.

A second preliminary question is what the new defence should be called.  In arguments before us, the defence was referred to as the responsible journalism test.  This has the value of capturing the essence of the defence in succinct style.  However, the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists.  These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets.  I agree with Lord Hoffmann that the new defence is “available to anyone who publishes material of public interest in any medium” [paragraph 96]

and early they went ever further:

The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause. [paragraph 62]

I’ve been a journalist for a long time, and spent about five of those years specifically as a legal journalist. I don’t think that at any time over the course of my career had there been one libel law for journalists and another for everyone else. If I’m missing something on that point, then I guess the egg is on my face.

There’s also never been a legal or statutory definition of a journalist that I’m aware of. Back in the day when the Free Trade Agreement was being negotiated with the U.S., there was some talk of including journalists. This would have allowed Canadian journalists to easily work in the United States. The Canadian Association of Journalists opposed the move because it would required journalists to be defined as someone with a college degree and three years experience. The view around the CAJ board table (I was on the national board in this period) was that journalists shouldn’t be considered credentialed professionals.*

* I’m going purely from memory here on events of at least 20 years ago, so read the above with caution. I’ll try and find some documentation on this. Meanwhile, if you peruse the CAJ statement of principles, you might notice it sets out how a journalist should behave but doesn’t define who a journalist is.

Constitutionally, we do have Section 2(b) of the Charter of Rights and Freedoms, which reads, “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;”.

My reading of 2(b) is that press freedom flows from the fundamental right of free expression. The U.S. Constitution’s first amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances”) is almost two centuries older than the Charter. But it seems to me that in the U.S., press freedom also flows from generalized freedom of speech.

The Canadian Newspaper Association has this to say in its statement of principles:

Freedom of the press is an exercise of every Canadian’s right to freedom of expression guaranteed in the Charter of Rights and Freedoms. It is the right to gather and disseminate information, to discuss, to advocate, to dissent.

They don’t seem to claim it only as a right for paid employees of newspaper companies.

Note this from paragraph 41 of Grant:

The fundamental question of principle is whether the traditional defences for
defamatory statements of fact curtail freedom of expression in a way that is
inconsistent with Canadian constitutional values.  Does the existing law strike
an appropriate balance between two values vital to Canadian society — freedom of
expression on the one hand, and the protection of individuals’ reputations on
the other?

In the Grant and Cusson rulings, the courts seem to be saying that one should be able to exercise their freedom of expression vigorously when reporting or commenting on matters of public interest. If the citizen or professional journalist plays by the rules laid out in the judgment, they have a defence if sued. Previously, the defence was to show they were perfect.

As University of King’s College journalism professor and media law expert Dean Jobb put it in a blog posting on J-Source.ca: “The defence reflects how the law treats allegations of negligence against doctors, lawyers and other professionals. They are expected to be skilled and competent, but not perfect. Patients die on the operating table, but not every death is the result of malpractice. The issue is how the operation was conducted and whether the surgeon’s actions were reasonable in the circumstances.”

Another way to look at Grant and Cusson is that for the amateur investigative reporter, yes they now have the same legal rights as the big boys — but also the same responsibilities. Enjoy.

A quick question for Eaves and those who hold to his views on this matter: Why did the court use language that distinguished between “the press and others engaged in public communication on matters of public interest, like bloggers” if Eaves’ interpretation about ‘no journalists, only journalism’ is correct?

I don’t think the judgment supports this statement by Eaves:

Rather than being about journalism this case was about freedom of expression and
about laying a legal framework for a post-journalism world…. The ruling acknowledges that we are all now journalists and that we need a legal regime that recognizes this reality.

But in Canada, we were always all potential journalists; it’s just that a small band of obsessive, underpaid people made their living by trying to find out about stories that matter and communicate them to the broader populace. These rulings change nothing in that regard other than acknowledge in passing that technological change has greatly opened up distribution options, allowing more to do such work if they so choose.

But why let a few facts stand in the way of a good blog post?

Addendum 1

Here’s how two rabid “enthusiastic” citizen journalism advocates reported this affirmation of their worldview on Twitter:

Jay Rosen (@jayrosen_nyu), NYU journalism professor, on Dec. 23:

Supreme Court of Canada broadens libel protection and says there are no journalists, only citizens http://jr.ly/qmeu (via @david_a_eaves)

That’s right, @bramabramson. We could also say the Supreme Court of
Canada held there are no journalists: only journalism.

Mathew Ingram (@mathewi), communities editor of The Globe and Mail, on Dec. 23:

David Eaves on the Supreme Court ruling, which he says “recognizes that we are all now journalists”: http://is.gd/5z6Ib

And on Dec. 22:

Supreme Court gives reporters — and bloggers — protection from libel if they take “reasonable steps” to verify: http://bit.ly/8NzPDK

Ingram only linked to the Globe news story.

He didn’t put up a link to his newspaper’s Dec. 23 editorial, which opened with:

Speech in Canada is now freer, and public debate more wide open than it ever was. The news media – and any blogger at her computer – have a new defence against defamation lawsuits, known as responsible communication in the public interest. No longer is it necessary to prove, in court, the truth of a factual statement. A diligent, fair-minded attempt to verify the truth will be enough.

But it also said this:

The ruling is a welcome change for Canada, a logical and evolutionary step
rather than a radical one.

Hmm. The Globe’s editorial board seemed to miss the revolutionary shift that Eaves found these rulings represent.

Ingram also didn’t link to Jobb’s commentary in the Globe:

The rulings are not just an early Christmas gift for journalists. The
court, recognizing that the definition of “journalist” is expanding in
our online world, says bloggers and anyone else “publishing material of
public interest in any medium” are covered. Established journalistic
practices offer a guide to assessing the conduct of “journalists and
non-journalists alike,” the court says, and standards will evolve “to
keep pace with the norms of new communications media.”

While Jobb acknowledged the effect of the ruling on citizen journalists, again, he didn’t see it as a game-changer in the way that Eaves did. But then again, Jobb is a media law expert. Eaves, while undoubted a bright, well-educated individual, has no specific background in media law* that I can see.

* Clarification: I was trying to be ironic in the lede/synopsis. I failed (see comment by Eaves below)

Yet Eaves gets tweet juice from those two, and the editorial and Jobbs’ commentary do not. As Peter Mansbridge might say, what’s up with that?

Addendum 2

Here’s an excerpt from the Dec. 23 Toronto Star editorial:

In its ruling, the court has taken a page from recent high court
rulings in Britain, Australia and New Zealand that set out “responsible
journalism” as a defence in matters of “public interest.” But the
Supreme Court judgment went one step further, by renaming it
“responsible communication” – meaning that it is a defence open not
only to mainstream media but, potentially, bloggers on the Internet.

The blogging angle wasn’t the focus of the editorial.

Addendum 3

Eaves wrote the following in his post:

Notice how it isn’t called “the defence of responsible journalism?”
(although, ahem, someone should let CTV know). This story matters as it demonstrates that the law is finally beginning to grasp what the internet means for our democracy and society.

As you can see in the left rail, I work for CTV.ca News. I didn’t write the online story (my nose is buried in the ctvtoronto.ca site every day). It did miss the nuance of responsible communication versus responsible journalism, although the former is a subset of the latter. In his interview with News Channel, media lawyer Peter Jacobsen did hold forth on that issue.

Sun, December 27 2009 » Main Page, Media

4 Responses

  1. Anonymous December 28 2009 @ 2:05 pm

    Hi Bill – thank you for commenting on my piece. I may be misreading your post, but I think you've misrepresent my argument. I never claimed that journalists were previously a profession and now were not – it feels pretty much like a strawman has been erected to it can be torn down. (I do feel like journalists sometimes try to convey that they are a accredited profession though)
    To respond, I think your argument can be distilled down to this paragraph:
    But in Canada, we were always all potential journalists… These rulings change nothing in that regard other than acknowledge in passing that technological change has greatly opened up distribution options, allowing more to do such work if they so choose.
    I however:
    a) I never claimed that the court had said something new, only that they were clarifying a state of being and how it applied in the online world
    b) Previous rulings (in Ontario and abroad) used terms like “journalism” and so could have be construed as meaning that the defence only applied to journalists or media companies. I thought it interesting that the court went out of its way to say otherwise. (and thus prevent the emergence of such a precedent)
    c) that the coverage frequently de-emphasized “b” since they often talk about “responsible journalism” and how this applied to newspapers and media companies. (Although you rightly point to several links where the significance of this was discussed).
    For readers who would like to read a good critique of my post – I suggest reading this piece (which I don't agree with, but it is well thought through and tackles what I said).
    Indeed, I suspect we are in agreement. I loved this paragraph:
    “But in Canada, we were always all potential journalists; it's just that a small band of obsessive, underpaid people made their living by trying to find out about stories that matter and communicate them to the broader populace. These rulings change nothing in that regard other than acknowledge in passing that technological change has greatly opened up distribution options, allowing more to do such work if they so choose.”
    That was, in essence, my point. It is nice to have it reaffirmed, especially in an era where journalists and media types frequently try to argue they have some unique special function that only they can perform.
    A couple of other points:
    I am not a legal scholar as you suggest in the first paragraph. But then I think you know that since late you state that I have no specific background in media law (correct).
    Addendum one: The Globe didn't miss the “revolutionary statement” I was making – they were making it too. (I hadn't seen that piece when I wrote my own)
    Addendum three: Miss the nuance of responsible communication versus responsible journalism? My understanding is that there is no “responsible journalism” defense in Canada – there is a “responsible communication” defense. And one is not a subset of the other (as you suggest) – responsible journalism simply does not exist (and, theoretically, wouldn't it be a subset of responsible communication if it did?)
    Again, thank you for the comment!
    Best,
    Dave

  2. Anonymous December 28 2009 @ 3:11 pm

    Hey Dave: I'm at work, but in an attempt to defend your off-base analysis, you seem to have misunderstood mine.
    Details later.
    Bill D.

  3. Anonymous December 29 2009 @ 11:57 am

    David, you got things wrong starting with your headline:
    “The Supreme Court of Canada: There are no journalists, only citizens”
    Again, that's always been the case when it came to libel law. Joe the journalist never had greater or fewer rights to make defamatory allegations than Joe the citizen ever did.
    So if Bill the blogger had written something defamatory pre Grant/Cusson, he would have had exactly the same limited defences available to him as Bill the journalist.
    Where did you recognize that fact in your post? I'm sorry I missed it.
    Now, where does the “defence of responsible communication in the public interest” fit in?
    The factual situations of both Cusson and Grant stem from works of journalism produced by professional journalists for established news organizations — as is the vast majority of high-risk investigative reporting done in this country (if you want to avoid risk, do no stories of consequence).
    Clearly the court wants its ruling to be seen as applying more broadly than the 1999 Reynolds decision by the UK's House of Lords.
    You seem to think the difference is between professional and citizen journalists. That's certainly part of it, but I think the court was merely stating the reality that if you're going to communicate on matters of public interest (which is pretty much what journalism's all about), here's the rules. But again, there was never any differentiation in law between a citizen’s defamatory report and one by a journalist prior to Grant/Cusson. So what really changed, other than stating out loud what had already been recognized in law?
    The court did notice the following trend:

    [97] A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.

    What’s that? The paragraph refers to journalists and non-journalists? Why would they do that if as you say, there’s no such thing as journalists — or, for that matter, journalism? One guess is that the court might be obliquely referring to bloggers who are actually in the role of persuasive political communicators using the cloak of journalism to advance their ends, but I have to give that possibility some more thought. We'll also see what the courts do if/when such cases come before them.
    But the other is if you're going to play journalist using one of the new communications media, the court is saying 'here's the rules' — and that would be in keeping with Canadian common-law tradition and the Charter's freedom of expression provisions.
    I find myself nodding in agreement with Tyler S. Shandro when he wrote this:

    So I forgive the Globe, CTV, et al. Yes, the Court decided that the best name for this defense in Canada should be “responsible communication on matters of public interest”, and yes, I think they were right to do so. But it’s a waste of time to whinge about semantics.
    Because it is a semantic argument, this business of who is or is not a journalist. And I don’t believe that the UK defence by being named “responsible journalism” would have protected a blogger, zine publisher or anyone else who is publishing ideas in some way any less than someone who has the word “journalist” on his or her business card.

    You wrote about one quote of mine:

    That was, in essence, my point. It is nice to have it reaffirmed, especially in an era where journalists and media types frequently try to argue they have some unique special function that only they can perform.

    But I pointed out at least two very salient examples where a journalists’ group and a newspaper trade association specifically didn’t claim special rights. You give no evidence of this “unique special function” argument and where it’s led to a claim for special rights.
    A few other points:
    – I was being ironic on the legal scholar part
    – Wow. You misread the Globe editorial too.
    – If you want to go to your grave thinking there’s no such thing as “responsible journalism” in Canada any more because of Grant/Cusson, that’s your choice. I'll wait for someone more authoritative to tell me I'm wrong. But for now, it seems clear the court's rulings are not exclusive to journalism, they were primarily about journalism.
    Thanks very much for the second-year undergrad-level analysis of the Grant/Cusson rulings.
    Bill D.

  4. Anonymous December 29 2009 @ 6:57 am

    David, you got things wrong starting with your headline:
    “The Supreme Court of Canada: There are no journalists, only citizens”
    Again, that's always been the case when it came to libel law. Joe the journalist never had greater or fewer rights to make defamatory allegations than Joe the citizen ever did.
    So if Bill the blogger had written something defamatory pre Grant/Cusson, he would have had exactly the same limited defences available to him as Bill the journalist.
    Where did you recognize that fact in your post? I'm sorry I missed it.
    Now, where does the “defence of responsible communication in the public interest” fit in?
    The factual situations of both Cusson and Grant stem from works of journalism produced by professional journalists for established news organizations — as is the vast majority of high-risk investigative reporting done in this country (if you want to avoid risk, do no stories of consequence).
    Clearly the court wants its ruling to be seen as applying more broadly than the 1999 Reynolds decision by the UK's House of Lords.
    You seem to think the difference is between professional and citizen journalists. That's certainly part of it, but I think the court was merely stating the reality that if you're going to communicate on matters of public interest (which is pretty much what journalism's all about), here's the rules. But again, there was never any differentiation in law between a citizen’s defamatory report and one by a journalist prior to Grant/Cusson. So what really changed, other than stating out loud what had already been recognized in law?
    The court did notice the following trend:

    [97] A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.

    What’s that? The paragraph refers to journalists and non-journalists? Why would they do that if as you say, there’s no such thing as journalists — or, for that matter, journalism? One guess is that the court might be obliquely referring to bloggers who are actually in the role of persuasive political communicators using the cloak of journalism to advance their ends, but I have to give that possibility some more thought. We'll also see what the courts do if/when such cases come before them.
    But the other is if you're going to play journalist using one of the new communications media, the court is saying 'here's the rules' — and that would be in keeping with Canadian common-law tradition and the Charter's freedom of expression provisions.
    I find myself nodding in agreement with Tyler S. Shandro when he wrote this:

    So I forgive the Globe, CTV, et al. Yes, the Court decided that the best name for this defense in Canada should be “responsible communication on matters of public interest”, and yes, I think they were right to do so. But it’s a waste of time to whinge about semantics.
    Because it is a semantic argument, this business of who is or is not a journalist. And I don’t believe that the UK defence by being named “responsible journalism” would have protected a blogger, zine publisher or anyone else who is publishing ideas in some way any less than someone who has the word “journalist” on his or her business card.

    You wrote about one quote of mine:

    That was, in essence, my point. It is nice to have it reaffirmed, especially in an era where journalists and media types frequently try to argue they have some unique special function that only they can perform.

    But I pointed out at least two very salient examples where a journalists’ group and a newspaper trade association specifically didn’t claim special rights. You give no evidence of this “unique special function” argument and where it’s led to a claim for special rights.
    A few other points:
    – I was being ironic on the legal scholar part
    – Wow. You misread the Globe editorial too.
    – If you want to go to your grave thinking there’s no such thing as “responsible journalism” in Canada any more because of Grant/Cusson, that’s your choice. I'll wait for someone more authoritative to tell me I'm wrong. But for now, it seems clear the court's rulings are not exclusive to journalism, they were primarily about journalism.
    Thanks very much for the second-year undergrad-level analysis of the Grant/Cusson rulings.
    Bill D.