Supreme Court of Canada: There are no journalists, only citizens

Since 2009, bloggers and journalists have had the same legal standing in Canadian defamation law

Canadians may be surprised that the law already gives bloggers the same protection as big-media journalists.

By David Eaves – eaves.ca –  I’ll confess some confusion around the slant taken by several newspapers and media outfits regarding yesterday’s supreme court decision on defense of libel claims.

For those new to this story, yesterday, the Supreme Court of Canada ruled that a libel claim can be defeated even when the facts or allegations made turn out to be false (e.g. I don’t owe you money if I say something nasty and untrue about you) as long as the story was in the public interest and I met a certain standard around trying to ascertain the truth. In short, my intentions, not my output, is what matters most. This new line of defense has a fancy new name to go with it… the defence of responsible communication.

Boring, and esoteric? Hardly.

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.

Sadly, the Globe, CBC, National Post and CTV (indeed everyone with the exception of Colby Cosh at Macleans) all framed the decision as being about journalism and journalists.

It isn’t.

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 to essentially say: there is no such thing as “a journalist” in the legal sense.

Supreme Court of Canada (Photo by West Annex News Creative Commons License)

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]  (Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640)

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]

If you are going to say “blogger” you might as well say “citizen.”  All the more so when “publishing material of public interest in any medium” includes blogs, twitter, an SMS text message, a youtube video… mediums through which anyone can publish and broadcast.

Rather than being about journalism this case was about freedom of expression and about laying a legal framework for a post-journalism world. Traditional journalists benefit as well (which is nice – and there will still be demand for their services) but the decision is so much broader and far-reaching than them.

At its core, this is about what one citizen can say about another citizen, be that in the Globe, on CBC, on my blog, or anywhere. And rather than celebrate or connote any unique status upon journalist it does the opposite. The ruling acknowledges that we are all now journalists and that we need a legal regime that recognizes this reality.

I suspect some journalists will likely protest this post. But the ruling reflects reality. The notion of journalists as a professional class was and has always been problematic. There are no standards to guide the profession and no professional college to supervise members (as there is with the legal or medical profession).

Some institutions take on the role of standard setting themselves (read journalism schools and media outlets) but they have no enforcement capacity and ultimately this is not a self-regulated profession. Rather, it has always been regulated by the courts.

Technology has just made that more evident, and now the courts have too. Today, when speaking of others we are all a little better protected, and also have the burden of behaving a little more responsibly.

David Eaves (Photo supplied)

David Eaves is public policy entrepreneur, open government activist and negotiation expert, David is retained by several governments to advise on open government and open data, and advises businesses and nonprofits on open source strategies and community management.

He is an affiliate with the Berkman Centre for Internet and Society at Harvard University, where he is looking at issues surrounding the politics of data, as well as how negotiation theory can help improve online community management.  Follow David at @daeaves.