In December 2009, barely over a year ago, the Supreme Court of Canada expanded their defamation laws by including non-journalists in their “responsible journalist” defense, under what it’s now calling “responsible communication.” Responsible Communication allows the writers who are accused of libel to prove their published words are truthful and relate to matters concerning public opinion. Two libel cases, Grant v Torstar and Quan v Cusson, were connected to this change. Both fall under the category of defamation cases but were not tried under the new standard of responsible communication, the courts ordered new trials for both lawsuits.
Grant v Torstar involved the publication of an article in The Toronto Star, and the supposed defamation of a well-known executive, Peter Grant. The article claimed that Grant, who intended to expand a golf course on land owned by him, had used his connections, politically and personally, to skip part of the process of approving the plans to do so. The court awarded Grant $1.24 million.
In the Quan v Cusson case, Ontario Provincial Police Const. Danno Cusson was purportedly defamed in an article published by The Ottawa Citizen. The article alleged Cusson, who had gone to help aid in the aftermath of 9/11, had gone against the will of his superior officers and lied about his training. The jury found The Ottawa Citizen to have published false statements and awarded Cusson compensation of $95,000.
“Responsible communication” is intended to give more liberty to all writers, journalists and non-journalists alike, to publish stories on topics important to the public so long as they can prove the truth of their statements and the backing of their research. This is quite similar to the “actual malice” standard used by the United States since 1964 in the case New York Times v Sullivan. Although the requirements for each standard differ in many ways, the basis for these are fairly comparable. Actual malice, which is used only in ruling whether or not defamation has occurred toward a public official, requires the plaintiff to prove that either the communicator knew his or her speech was false or took no precaution in attempting to determine the truth of falsity of his or her claim.
In the case of New York Times v Sullivan, L.B. Sullivan attempted to receive compensation for defamation from the New York Times for running an ad that had criticized the Montgomery police force, whom he was supervising at the time, in their response to civil rights demonstrations. Although the Alabama courts voted in favor of Sullivan, the U.S. Supreme Court reversed the decision stating that, the Constitution “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ - that is, which knowledge that it was false or with reckless disregard of whether it was false or not.”
Gertz v Welsch is another case whose decision was determined by actual malice. Lawyer Elmer Gertz was defamed in a series of articles published by American Opinion, that claimed he was part of a communist conspiracy after he represented a case in opposition of a local police officer. Instead of treating him as a public official, the Court ruled that in the facts of the case, Gertz was to be treated as a private citizen, and that the statements in the article were not protected by the First Amendment.
Although they are both standards for determining the outcome of libel lawsuits, “actual malice” differs from “responsible communication” in a number of ways. The main difference is that actual malice requires the plaintiff to prove the communicator guilty; it must be clear that the speaker either knew the message was false or did not care if it was truthful. Responsible communication, on the other hand, requires the communicator to prove themselves innocent; they must make it clear they attempted fact verification. Actual malice also makes a distinction between whether the defamed individual is a public official or a private citizen.
Both libel lawsuit standards equally balance the Universal Declaration of Human Rights protection for freedom of speech. Actual malice protects the speaker and responsible communication exposes stories that matter to the public interest, both of which encourage free speech. In determining which standard better protects reputation through the UDHR, actual malice win out because it also preserves the reputation of the speaker by requiring the allegedly defamed to prove the speaker’s statement to be purposefully false.