Printed Matters

There are some strange inversions happening in libel law. Two libel cases now being heard in North America may overturn long-held legal principles.

A short libel primer: to launch a suit in Canada, a plaintiff needs to show statements about him were broadcast or published to an audience and that they were defamatory, i.e. that they were capable of harming his reputation. The plaintiff need not prove the falsehood of the statement.

Proving the truth of the statement is left up to the defendant. The defendant can use four possible defences: fair comment, qualified privilege, consent, or truth. The truth defence – showing that the defamatory statement was true – is known as an absolute defence. This means (among other things) that even if the statement was made maliciously, if it is true it isn’t libel.

The right to be wrong (sometimes)

Media lawyers arguing to the Supreme Court in the Ottawa Citizen vs. Danno Cusson case say journalists should have “the right to be wrong.” They’re arguing that a new libel defence should be made available to protect the media, called the “responsible journalism” defence. It says, more or less, that if a journalist has acted responsibly – that is, he took steps to verify his statements, did not act with malice, did not knowingly publish falsehoods, etc. – that he should be immune from a libel suit arising from falsehoods in his report.

This case is about balance. The public needs to be protected from irresponsible journalism, but the public also needs to have responsible journalists reporting on public affairs without the constant chilling fear of a libel suit.

It’s wrong to be right (sometimes)

Meanwhile, in the States, the courts seem to be moving in the opposite direction. Even if a statement is true, a court said in the case of Noonan vs. Staples, if it was made with “actual malice” then it might still be found libelous.

What happened, in short: Staples salesman Noonan took certain liberties with his expense reports, claiming he would correct the situation later. He never did. This contravened Staples’ policies. Staples fired him.

None of this (apparently) is disputed. But then Staples sent an email to about 1,500 employees telling them that Noonan was fired and why.

Federal appeals court in Massachusetts found that action was malicious, because Staples had never done anything like it before, only to Noonan.

One law blogger called it “the most dangerous libel decision in decades.”

Now, some caveats: Massachusetts has a 1902 statute stating that truth is an absolute defence except where actual malice is present. And we’re talking about a private figure here and a corporate memorandum, not the media at large reporting on public figures.

Still, some think this decision could have a chilling effect on journalism.

What do you think?

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