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Malice, qualified privilege, and the new responsible communication defence to defamation: which way forward for investigative journalism in Canada?

I. INTRODUCTION

Striking an appropriate balance between the protection of reputation and the preservation of free speech has always been a key challenge for the law of defamation. While the common law tort of defamation affords some protection for reputation by imposing liability for statements that cause "right-thinking members of society" to think less of a plaintiff, (1) there exist important exceptions to this cause of action. These defences ensure that certain statements can, within circumscribed limits, be lawfully published and disseminated to the public even if such publication results in damage to reputation.

The recent cases of Grant v Torstar Corp (2) and Quan v Cusson (3) have provided the Supreme Court with the opportunity to review the scope of protection given to reputations under the common law of Canada. Of particular significance is the Supreme Court's groundbreaking recognition of a new defence to the common law tort of defamation: the "responsible communication" defence. (4) This defence protects newspapers, reporters, media organizations, and other writers and publishers from liability for defamation if they have exercised due diligence in the verification of facts for a story on a matter of public interest. The introduction of this new form of immunity puts Canada in step with the United States, England, and other parts of the Commonwealth. (5) English courts, in particular, have described this new defence as a "public interest" defence to defamation in landmark cases such as Reynolds v Times Newspapers Ltd (6) and Jameel v Wall Street Journal Europe SPRL. (7)

Yet an interesting question that has not been satisfactorily answered is whether the new public interest responsible communication defence can be defeated by proof of malice. If there is evidence that a publisher or maker of a statement has made the statement with intent to cause harm, has acted with reckless disregard as to the truth of the statement, or has acted dishonestly or fraudulently, what effect would such evidence have on the availability of the responsible communication defence?

This essay argues that the Supreme Court's characterization of the responsible communication defence as a "new jurisprudential creature"--to be analysed and applied separately from the traditional qualified privilege defence--can be supported on policy and doctrinal grounds. It suggests, in addition, that while qualified privilege can generally be defeated by proof of malice, the defence of responsible communication, by its very definition, requires the exercise of "due diligence" by the maker of a statement, and that, on its own, precludes certain forms of malice (such as reckless disregard for the truth). This essay further argues that intent to cause harm to a plaintiff's reputation should not, on its own, defeat the responsible communication defence, as long as the two key requirements of public interest and due diligence are satisfied. Although the two recent decisions by the Supreme Court can be considered a step in the right direction, the new defence needs to be defined with greater clarity and precision in Canada, so as to encourage debate on matters of public interest and to maintain appropriate standards of investigative journalism by ensuring that reports and statements procured through due diligence can be given adequate protection under the law.

In the next section of this Note, I sketch the contours of defamation law and provide a brief summary of the qualified privilege defence. I then engage in an analysis of Grant and Quan, and explain the circumstances under which the responsible communication defence has emerged in the common law of defamation, both in England, and subsequently, in Canada. I also discuss whether responsible communication should be treated as a new defence or as an extension of qualified privilege. In the third section, I discuss whether the responsible communication defence can be defeated by the presence of "malice" on the part of the person making an allegedly defamatory statement, and highlight the importance of distinguishing between the different types of behaviour that are quite often semantically lumped together under the rubric of malice.

II. RESPONSIBLE COMMUNICATION: A NEW DEFENCE TO DEFAMATION?

One of the central aims of defamation law is to strike a balance between freedom of expression and the protection of reputations. (8) The appropriate balance to be drawn, however, is not always easy to define. While defamation law remains the primary avenue through which a claimant can seek redress for injury to her reputation arising from the publication of damaging statements, the scope of protection afforded by defamation law is limited by defences designed to exonerate certain types of statement from liability. In this respect, defamation law recognizes there are circumstances in which freedom of expression should prevail over a person's right to protect her reputation from harm--and in these circumstances it is lawful to communicate information even if such communication results in injury to the person's reputation.

Of the defences that are traditionally recognized under the common law of defamation--justification (truth), absolute privilege, qualified privilege, and fair comment--qualified privilege arguably remains the most difficult to define with precision. While the defence of justification is based on the speaker's or publisher's ability to demonstrate the truth or accuracy of the published information, qualified privilege is defined in the form of a bilateral interest/duty test that connects the maker of a statement with its recipient(s). A statement may attract qualified privilege if its maker has an interest or a legal, social, or moral duty to communicate information, and its recipients have a corresponding duty or interest to receive it. (9) This concept of reciprocity is essential. (10) Unlike justification, which has general application to statements whose truth can be adequately demonstrated, (11) qualified privilege attaches only to a more limited range of occasions. (12) The conditional and limited quality of the immunity afforded by qualified privilege can be contrasted as well with the complete protection granted by the absolute privilege defence, which allows certain individuals to communicate information freely without fear of liability in circumstances where the fullest dissemination of information is in society's interest, irrespective of accuracy or motive. (13)

Unlike the justification defence, the defence of privilege--whether absolute or qualified--does not require the communicated information to be true. In the case of qualified privilege, there is a further requirement of a mutually corresponding duty or interest to communicate information (on the part of the maker of the statement) and to receive the information (on the part of the recipient). In the absence of such a duty or interest, the qualified privilege defence would not be available. In Grant and Quan, the Supreme Court of Canada addressed the adequacy of this defence in the context of investigative journalism and focused its inquiry on whether the defence should be broadened to protect freedom of expression and the press in Canada.

In the case of Grant, McLachlin CJC, delivering the majority opinion of the court, held that the law of defamation should be changed to afford greater protection to communications on matters of public interest, so as to give adequate weight to the constitutional value of free speech enshrined in section 2(b) of the Canadian Charter of Rights and Freedoms. (14) In order to encourage debate on matters of public interest, a new defence to defamation was recognized--one that protected reliable statements made in the context of such debate, even if the statements in question were not entirely true. (15) In order to be eligible for this defence, however, the publisher of a statement must have acted reasonably in attempting to verify the information at stake. (16) McLachlin CJC held, in addition, that "responsible communication" was to be recognized as a new defence, leaving the traditional qualified privilege defence intact. (17)

The responsible communication defence adopted in Canada has interesting similarities with the public interest defence in England, sometimes referred to as the "Reynolds defence" or the "Reynolds privilege." Both seek to confer immunity on published statements disseminated to large audiences, provided certain requirements are fulfilled. However, there is some contention as to whether the Reynolds defence in the English common law is a new, stand-alone defence to defamation or merely an extension of qualified privilege. In the case of Jameel, the House of Lords was not in complete agreement as to the status of this defence. The Reynolds privilege was first articulated by Lord Nicholls of Birkenhead, although the focus of the Reynolds decision was whether the common law should recognize a new category of privilege for political information. (18) The defence received fuller attention in Jameel, where Lord Hoffmann expressed the opinion that it be referred to as the "Reynolds public interest defence" to underscore its status as a different jurisprudential creature from traditional qualified privilege. (19) Baroness Hale of Richmond agreed with Lord Hoffmann that the Reynolds privilege is essentially a defence of publication in the public interest, and should be treated as such. (20) Using a rigid duty/interest test would not be helpful in the context of a story in the public interest. (21) Yet Lord Hope of Craighead appears to have muddied the waters somewhat by stating he agreed with Lord Hoffmann that the newspaper's publication of the names was protected by qualified privilege. (22) This statement is clearly at odds with Lord Hoffmann's characterization of the Reynolds privilege as a completely new defence, since Lord Hope's analysis appears to suggest that the Reynolds privilege is simply an extension of qualified privilege.

To make matters even more confusing, Lord Scott of Foscott stated he was unprepared to go so far as to say that the Reynolds privilege was a different jurisprudential creature from traditional qualified privilege. (23) Nevertheless, he did emphasize that certain features of the Reynolds privilege were somewhat incompatible with the duty/interest test for qualified privilege. For instance, Lord Scott noted that while the notion of reciprocity for the duty/interest test for qualified privilege may be applicable when a statement is made to a limited number of people, such a requirement is less meaningful in the context of a newspaper that has an international audience. (24) In this respect, "duty" is not necessarily an accurate reason for why information is shared by newspapers, since some stories, such as scandals involving celebrities, might be of great interest to the public but of little practical significance, while others might be important from a political or economic standpoint but somewhat less interesting to the average reader. (25) The application of the traditional qualified privilege defence might therefore be hampered by the strictures and rigidity of the duty/interest test when a court is faced with a newspaper story on a matter of public interest. (26)

As seen from the discussion by the House of Lords in Jameel, the juridical status of the Reynolds privilege as a defence to defamation is somewhat unclear. Although their Lordships were in agreement that the defence/privilege should apply to exonerate the newspaper from liability, the House of Lords was split on the issue of whether the Reynolds privilege should be treated as an independent defence, with Lord Hoffmann and Baroness Hale asserting that it should, and Lords Hope and Scott suggesting that it should not. The lack of consensus on this issue might not have been crucial for the facts of the case facing the House, but this uncertainty could have an impact on how the Reynolds privilege is applied to newspaper publications in future defamation actions.

Despite the ambiguity inherent in the Jameel decision, Canada's highest court has, as mentioned earlier, adopted "public interest responsible communication" as an independent defence to the tort of defamation. (27) It is submitted that this approach is preferable and can be justified on several grounds. Firstly, as acknowledged by some of the Law Lords in the Jameel case, the importance of facilitating free discourse on matters of public interest does not fit comfortably within the rubric of a duty/interest test. It is difficult to conceive of a duty that a journalist or reporter owes readers at large in society to communicate or publish opinions or stories on current affairs or matters of public interest--any duty that might arise in this context would be a professional or contractual one owed to the publisher or media organization for which they work. In contrast, the duty under the traditional qualified privilege is owed to an individual or group of individuals who are likely to be directly affected by the information communicated, such as employees in a firm or the recipient of a reference letter from a job applicant's employer. (28)

Secondly, given the potentially large audience for a story "in the public interest", it is inaccurate to speak of a duty or interest to receive the information communicated. Members of the public are certainly under no formal duty or obligation to read a news report or to be otherwise aware of the latest news, although an interest in current affairs might be considered an element of responsible citizenship. That said, even the most well-read individuals might not be personally interested in every story that might be conceived of as in the public interest. Attempting to force-fit a public interest defence within the conceptual ambit of qualified privilege would entail an artificial and laboured interpretation of the duty/interest test.

Thirdly, it should be borne in mind that the nature of a story in the public interest is incompatible with the limited scope of the qualified privilege defence, which only attaches to specifically defined occasions; (29) namely, where there is a relationship of sufficient proximity between the publisher, the recipient, and the information communicated. (30) It has been suggested that many of the clearly established categories of qualified privilege apply to publications addressed to a limited audience, and that in the modern information age protection from liability is increasingly sought for communications addressed to large audiences, (31) particularly for breaking news stories in the public interest. (32) The traditional test for qualified privilege might therefore be ill-equipped to accommodate the latter form of communication, much of which is disseminated through mass media. Informed debate on matters of public interest is an integral part of free press in a democratic society, and is constitutionally entrenched in section 2(b) of Canada's Charter of Rights and Freedoms. The importance of promoting vibrant discourse, public debate, and the free flow of information entails that freedom of expression be given broad protection and not be curtailed by a test traditionally linked to specific occasions, situations, or specific classes of recipient. Reports on matters of public interest are generally designed for broad circulation and consumption by the public, and should therefore be assessed in accordance with a defence to defamation that is defined by broader criteria, free from the artificial constraints of the "duty/interest" test for qualified privilege.

A separate, but related, issue that should be considered is the extent to which responsible communication can be distinguished from the defence of fair comment, since both defences involve communications concerning the public interest. (33) One crucial difference, however, is that the fair comment defence protects legitimate opinions based on facts, as long as the communication was not actuated by malice, and provided that a person could honestly hold the opinion expressed in the publication. (34) In contrast, the responsible communication defence applies primarily to statements or allegations of fact (rather than opinions) where reasonable steps have been taken to verify the accuracy of the information communicated. While a single news story may contain both statements of fact and opinions, and thereby potentially be protected from liability under more than one of these defences, it is important to note there is a material difference in the nature of the communication covered by each defence.

In light of the arguments in the preceding paragraphs, it is submitted that the approach adopted by the Supreme Court of Canada in treating responsible communication as a separate jurisprudential creature is more compatible with its nature as an independent defence to defamation distinct from qualified privilege and the other defences. The characterization by Lord Hoffmann and Baroness Hale of the Reynolds privilege as separate from qualified privilege, instead of merely an outgrowth or extension, should also be considered the more appropriate approach when applying England's version of the public interest defence to defamation.

III. THE IMPACT OF MALICE ON THE AVAILABILITY OF THE NEW DEFENCE

Having discussed the relationship between qualified privilege and responsible communication as independent, separate defences to defamation, it is apposite at this juncture to consider an important issue largely overlooked in Jameel and Canadian jurisprudence. Although the Supreme Court of Canada has expressed the view that responsible communication "obviates the need [to discuss] malice", (35) it is important to note that malice can take various forms, and the challenge lies in disentangling the various strands of malicious intent--for example, ill-will, dishonesty,

reckless disregard for the truth and/or improper purpose--and their respective effects on the availability of the defence. (36) In particular, should the responsible communication defence be available if there is evidence that the reporter or journalist had written the story with a malicious purpose, regardless of what form the malice takes?

One possible argument that might be made by advocates for greater journalistic accountability and integrity is that proof of malice (in whatever form) should defeat the responsible communication defence. An overly expansive scope of protection given to reporters under the rubric of responsible communication might result in lower journalistic standards and inadequate protection to the reputations of individuals. The concern here would be that the act of immunizing inaccurate reports from liability for defamation would lower the bar of journalistic integrity and allow journalists to "get away" with flagrant denigrations of a person's character and personality, so long as the journalists could show some attempt at procuring facts. This concern is perhaps not an invalid one, but in order to consider the proper role that malice should play in carving out the scope of immunity afforded by responsible communication, it is necessary to adopt a more nuanced approach--one that recognizes both the burdens imposed on journalists seeking to avail themselves of responsible communication, as well as the protection that it confers. Recognizing the interplay between these two factors is an essential step in striking an appropriate balance between the goals of protecting reputations and promoting freedom of expression.

Interestingly, under the traditional common law approach, the legal effect of qualified privilege is to rebut the inference that ordinarily defamatory words were spoken with malice. (37) However, the protection granted is not absolute, as the defence can be defeated if the dominant motive for publishing the article is actual or express malice. (38) However, given the relative newness of the responsible communication defence in Canada, courts have yet to consider in detail the effect that malice would have on a news story (in the public interest) researched and verified with due diligence. In other words, can a journalist avail herself of the responsible communication defence if she publishes, with malice, a news report or story that she has taken reasonable steps to verify, but which nevertheless contains allegedly defamatory content?

To answer this question, it is first necessary to consider what malice entails. This is a fairly thorny issue because malice in the context of defamation often (but not always) involves an active intent to cause harm to the subject's reputation. The presence of ill will on the part of a journalist or news reporter might be treated as a sign that the communication is not made in good faith. (39) However, the mere presence of hostility harboured by a journalist against the subject of a report does not, ipso facto, render a report invalid or inaccurate. Indeed, it is often the desire to expose wrongdoing or unscrupulous conduct that drives an investigative journalist to research and eventually publish a story in the mass media. There should be no illusions about the attitudes held by journalists toward the people they write about, particularly if the report in question seeks to reveal or uncover unflattering but nevertheless important facts about the persons concerned. A desire to cause harm to a person's reputation, as a form of "malice", should not be fatal to a journalist's attempt to invoke responsible communication if the story contains material that, even if not entirely true, has been corroborated by reasonably reliable sources. In sum, the journalist's or writer's frame of mind--hostile or otherwise--should not be the determining factor in deciding whether the defence of responsible communication is available. The two principal criteria of the defence should be given the most weight: firstly, whether the story or report deals with a matter in the public interest, and secondly, whether the journalist has taken reasonable steps to verify or corroborate the information communicated.

The definition of "malice", as its ordinary meaning is commonly understood, encompasses a range of situations, of which intent to cause harm to reputation is but one example. Malice may also be deemed to be present if a statement is made recklessly, without due regard for the truth. (40) Such forms of recklessness, as species of malice, if sufficiently established in court, can defeat both the qualified privilege defence as well as the fair comment defence. (41) It is submitted, however, that this latter form of malice--reckless disregard for the truth--is not usually relevant to responsible communication, since the defence, by its very definition, requires due diligence in verifying sources of information. If the defendant succeeds in demonstrating that the reported matter was in the public interest, and that reasonable steps were indeed taken to verify the accuracy of the report, then any alleged recklessness on the part of the reporter would already have been refuted in the second stage of the analysis. The basic criteria that are used to determine whether responsible communication can be successfully established as a defence, by definition, preclude the possibility of reckless disregard for the truth on the part of the story writer or journalist. It may very well be that the "propriety of the conduct of the defendant is built into the conditions" (42) under which the material is protected under the defence. The propriety of the conduct built into the defence would therefore exclude not just reckless behaviour, but also fraudulent and criminal behaviour, such as bribery and computer or phone hacking.

It is also important to note that the effect of malice varies depending on the particular defence to defamation being considered. While the existence of malice on the part of the defendant might be fatal to defences such as qualified privilege and fair comment, it has no effect on whether the defence of justification can be successfully established. Put simply, a person can escape liability for an allegedly defamatory statement if they can demonstrate the truth of that statement, even if the statement was made with intent to injure the plaintiff's reputation. Since it is the contention of this essay that responsible communication should be treated as an independent defence, rather than as a subspecies of qualified privilege, one should not automatically assume that the presence of malice renders responsible communication unavailable as a defence. Indeed, if responsible communication seeks to balance the vital interests of freedom of expression and the need for ethical journalism, then there are strong reasons to treat the defence as one that is closer in pedigree to justification and absolute privilege, than to qualified privilege.

An interesting structural similarity between justification and responsible communication is that they are general defences capable of application to communicated information bearing certain characteristics: either containing statements of demonstrable truth or being in the public interest. In contrast, the qualified privilege defence is more strongly tied to specific occasions and is restricted by the defined categories which it has traditionally been associated with in common law jurisprudence. In order to give greater protection to the freedom of expression and the press in Canada, courts should not engage excessively in artificial distinctions--as far as defamation law is concerned--between statements that are true and those that have been verified through due diligence. For practical purposes, there may be no discernable difference at the stage of investigative journalism between the two classes of statement. A statement that can be demonstrated to be true is, in effect, one that is corroborated by reliable sources of information. However, if one or more of those sources subsequently turn out to be misguided, then the statement might lose its protection under the defence of justification. As such, what separates a true statement from a statement that is made responsibly may simply be a question of degree of accuracy, sometimes made clear only after the fact of publication, but the process of story verification is likely to be similar where journalistic investigation is concerned. In order to ensure that vital information flows freely in a democratic society like Canada, journalists should be given some degree of flexibility to report on important matters concerning the public at large, particularly where information is scarce or not readily available. To this end, the responsible communication defence should be seen as furthering very similar goals to that of the justification defence, and given their structural similarity, the presence of malice ought not to have the same deleterious effect with respect to these two defences as it does with qualified privilege.

Finally, a reporter's frame of mind or motivations when writing an article should not, in the opinion of this author, be the primary test for whether the responsible communication defence should succeed. The focus of the inquiry should be on whether the story has been reasonably researched and corroborated by the reporter. Hence, if a news reporter is convinced that a certain public figure has accepted bribes and that the public needs to know about his misdeeds, the central motivation for writing an expose on the matter could, in a general sense, be said to be driven by malice; that is, the intent to cause harm to a named individual's reputation. However, the reporter's intentions in bringing such misconduct to light could also be said to be driven by a noble cause--to ensure that public figures are held accountable for their actions. An overriding consideration should therefore be the strength of the evidence and sources used by the reporter to corroborate her allegations and claims, and not the initial emotional or psychological factors that inspired or motivated the writing of the story.

IV. CONCLUSION

While the recent cases of Grant and Quan have broken new ground in the articulation of a new defence to defamation, the scope of this defence will perhaps only be fully understood as it is "hammered out on the anvil of concrete cases". (43) In this Note, I have sought to discuss the impact of malice on the availability of this new, independent responsible communication defence, and have argued that intent to cause harm to reputation should not be fatal to the defence, provided the story has been researched with reasonable care and due diligence. Further, I suggest that certain forms of malice (such as reckless disregard for the truth) are, by definition, precluded from the scope of responsible communication, since the defence requires due care in corroborating sources of information.

In conclusion, it is submitted that the Supreme Court of Canada has taken a step in the right direction by strengthening the protection given to freedom of expression in recognizing the need for greater flexibility in responsible, investigative journalism. Journalists and news reporters nevertheless have important burdens to discharge before they can avail themselves of this defence, which seeks to strike an equitable balance between the dissemination of vital information to the public and the protection of reputations. In order to give this defence real utility as a tool for greater journalistic freedom in Canada, however, the precise requirements of and limits to responsible communication need to be fleshed out in future cases, particularly with respect to the impact of malice on the availability of protection from liability, and the relationship between this new defence and the other forms of immunity currently recognized under the constantly evolving common law of defamation.

(1) Defamation as a cause of action arises when the publication of a statement tends to "lower a person in the estimation of right-thinking members of society, or to expose a person to hatred, contempt or ridicule" Botiuk v Toronto Free Press Publications Ltd, [1995] 3 SCR 3 at para 62, 126 DLR (4th) 609.

(2) Grant v Torstar Corp, 2009 SCC 61, [2009] 3 SCR 640 [Grant].

(3) Quan v Cusson, 2009 SCC 62, [2009] 3 SCR 712 [Quan].

(4) Ibid at para 28; Grant, supra note 2 at para 126.

(5) See e.g. Jameel v Wall Street Journal Europe SPRL, [2006] UKHL 44, [2007] 1 AC 359 [Jameel]; New York Times Co v Sullivan (1964), 84 S Ct 710, 376 US 254; Lange v Australian Broadcasting Corp (1997), 145 ALR 96, 71:2 ALJR 818 (HCA); Theophanous v Herald & Weekly Times Ltd (1994), 124ALR 1, 68 ALJR 713 (HCA); NationalMedia LtdvBogoshi, [1998] ZASCA 94, 1998 (4) 1196, (S Afr CA).

(6) See Reynolds v Times Newspapers Ltd, [1999] UKHL 45, [1999] 4 All ER 609 [Reynolds].

(7) See Jameel, supra note 5.

(8) Grant, supra note 2 at para 3.

(9) See Adam v Ward, [1917] AC 309 at 334, 33 TLR 277, Atkinson LJ.

(10) Ibid.

(11) See M'Pherson v Daniels (1829), 109 ER 448, 10 B & C 263 at 272 (KB) where it was held by Littledale J that the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not to possess. However, mere belief in the truth of a statement, even if the belief is honestly or reasonably held, is not sufficient to establish the defence of justification. See also Caldwell v McBride (1988), 45 CCLT 150, 1988 CLB 3654 (BCSC).

(12) See e.g. Allen M Linden & Bruce Feldthusen, Canadian Tort Law, 9th ed (Markham: LexisNexis Canada, 2011) at 788, who define "qualified privilege" as a "conditional immunity" that attaches to certain specified conditions deemed to be oflesser importance than those absolutely privileged.

(13) Examples of absolutely privileged occasions include parliamentary proceedings, judicial proceedings, and private communications between spouses. See generally Ex parte Wason (1869), LR 4 QB 573 (available on WL); Scott v Stansfield (1868), LR 3 Ex 220 (available on WL); Wennhak vMorgan (1888), LR 20 QBD 635 (available on WL).

(14) Canadian Charter of Rights and Freedoms, s 2(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11; Grant, supra note 2 at paras 68, 85-86, 141.

(15) Ibid at para 141.

(16) Ibid at para 126; see also Quan, supra note 3 at para 28.

(17) Grant, supra note 2 at paras 85-87, 95.

(18) See Reynolds, supra note 6.

(19) Jameel, supra note 5 at para 46.

(20) Ibid at para 146.

(21) Ibid.

(22) Ibid at para 112.

(23) Ibid at para 135.

(24) Ibid at para 129.

(25) Ibid at para 138.

(26) Ibid at para 129.

(27) See e.g. Robert Danay, "The Medium is Not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation" (2010) 56:1 McGill LJ 1 at 37.

(28) See e.g. Gillett v Nissen Volkswagen Ltd (1975), 58 DLR (3d) 104, [1975] 3 WWR 520 (Alta SC (defunct; replaced by QB)).

(29) See Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 at para 143, 126 DLR (4th) 129 [Hill]. It was held that privilege attaches to the occasion upon which the communication is made, and not to the communication itself. See also Linden & Feldthusen, supra note 12 at 788.

(30) See Linden & Feldthusen, supra note 12 at 788-89, who note that qualified privilege cannot be abused by using it for an interest unrelated to that for which the privilege is afforded.

(31) See Andrew T Kenyon & Ang Hean Leng, "Reynolds Privilege, Common Law Defamation and Malaysia" [2010] Sing JLS 256 at 256-57.

(32) It was probably for this reason that courts in the England and Wales were conscious of the need to expand the scope of protection against liability for defamation, particularly in relation to widespread publications in the public interest. See Jason Bosland, "Republication of Defamation under the Doctrine of Reportage--The Evolution of Common Law Qualified Privilege in England and Wales" (2011) 31:1 Oxford J Legal Stud 89 at 90. It is also interesting to note that the United Kingdom Ministry of Justice has unveiled a draft bill--the Draft Defamation Act of 2011--perhaps to counter the perception of London as the "libel capital of the world" with defamation laws that are seen as very "plaintiff-friendly". See Thomas Sanchez, "London, Libel Capital No Longer?: The Draft Defamation Act 2011 and the Future of Libel Tourism" (2011) 9:3 University of New Hampshire Law Review 469 at 470-71.

(33) The Supreme Court of Canada has formulated five requirements for the defence of fair comment in WIC Radio Ltd v Simpson, 2008 SCC 40 at para 28, [2008] 2 SCR 420. Binnie J, writing on behalf of the majority, held that firstly, the comment must be on a matter of public interest; secondly, it must be based on fact; thirdly, that although the comment can include inferences of fact, it must be recognisable as comment; fourthly, any person could honestly express that opinion on the proven facts (an objective test); and fifthly, the plaintiff is not able to prove that the defendant, in making the comment, was actuated by express malice. Proof that the defendant was (subjectively) motivated by malice would be sufficient to defeat the defence of fair comment even if the other four requirements are satisfied.

(34) See e.g. Libel and Slander Act, RSO 1990, c L 12, s 24:

Where the defendant published defamatory matter that is an opinion expressed by another person, a defence of fair comment by the defendant shall not fail for the reason only that the defendant or the person who expressed the opinion, or both, did not hold the opinion, if a person could honestly hold the opinion.

(35) See Grant, supra note 2 at para 125. A similar observation has also been made in respect of the Reynolds privilege, see Loutchansky v Times Newspapers Ltd, [2001] EWCA Civ 1805, [2002] 1 All ER 652 at para 33 (where Lord Justice Brown MR noted that once the Reynolds privilege attaches to a particular communication, little scope remains for any finding of malice).

(36) See Jerome v Anderson, [1964] SCR 291, 44 DLR (2d) 516 at 524ff, where it was held that malice extends beyond spite or ill will, and includes indirect motives not connected with the purpose for which privilege was given by law. See also Stewart v Biggs (1927), [1928] NZLR 673 (available on WL) (Sup Ct (defunct; replaced by HC)), where the court expressed the view that "legal malice" can be demonstrated by proof that the publisher did not have a genuine belief in the truth of the statement, and communicated false information for dishonest or improper purposes.

(37) See Hill, supra note 29 at para 144.

(38) See Horrocks v Lowe (1974), [1975] AC 135 at 149, [1974] 1 All ER 662. The onus of proof lies on the plaintiff to demonstrate the existence of malice, by showing, for instance, that the defendant "spoke dishonestly, or in knowing or reckless disregard for the truth". See also Hill, supra note 29 at paras 144-47.

(39) See Dean Jobb, Media Law for Canadian Journalists (Toronto: Emond Montgomery Publications Limited, 2006) at 292 for an interesting example. If a journalist writes in a memo that his story will "get" or "nail" someone, such evidence can be used to show the existence of a malicious mindset. While a journalist does not have to like or even respect the subject of the story, Jobb emphasizes that there can be no evidence that this ill will was the central motivation for publishing the story. Evidence of unprofessional conduct, bad faith, or spiteful behaviour can be fatal to the defences of fair comment and qualified privilege.

(40) See ibid at 292-93, where Jobb notes that malice can also take the form of reckless publication of information, or the knowledge that it is false.

(41) See Adam v Ward, supra note 9 at 321 (where it was held that the presence of malice is to be determined by a jury); and Thomas v Bradbury, Agnew & Co Ltd, [1906] 2 KB 627 (available on WL) (CA).

(42) See Jameel, supra note 5 at para 46, where Lord Hoffman commented on whether a factual finding of malice could defeat the defence of the Reynolds privilege.

(43) See Attorney General v Blake, [2000] UKHL 45, [2001] 1 AC 268 at 291, an unrelated case in which Lord Steyn used a similar phrase to discuss the imprecise and uncertain scope of the equitable remedy known as "disgorgement of profits" against a contract breaker. Linden and Feldthusen have suggested that it may be premature to assess the full impact of the responsible communication defence at this point in time based on the small number of cases in which it has been applied. The responsible communication defence was successfully raised in the recent case of Shavluk v Green Party of Canada, 2010 BCSC 804, 2010 CLB 13181 (concerning a press release by the Green Party of Canada stating that the plaintiff would not be a candidate due to previous remarks which could be construed as anti-Semitic) but not in Hunter v Chandler, 2010 BCSC 729, 2010 CLB 11824, (concerning an allegation of conflict of interest, where the defence of responsible communication did not succeed because the defendant had failed to disclose the facts forming the basis for the allegation and had not waited for a legal opinion that had been sought on the issue). See Linden & Feldthusen, supra note 12 at 802.

EUGENE C. LIM [dagger]

[dagger] SJD (Toronto). The author wishes to acknowledge the helpful comments and feedback provided by two anonymous reviewers on an earlier verion of this paper, as well as the efforts and assistance of the editorial team at the University of British Columbia Law Review.
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Author:Lim, Eugene C.
Publication:University of British Columbia Law Review
Date:Jan 1, 2012
Words:6372
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