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:
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
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?
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?
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.
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.