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December 22, 2009

Jeanette Lee

SCC Cusson + Grant: A Reboot for Canadian Libel Law

The Supreme Court of Canada released its reasons in Quan v. Cusson and Grant v. Torstar Corp today. These are key decisions in the area of defamation and libel, and a major victory for the media. The court recognized the new defence, of responsible communication on matters of public importance. A quote from the reasons delivered by Chief Justice Beverly McLachlin in Cusson: "The judge decides whether the publication was on a matter of public interest. If so, the jury then decides whether the standard of responsibility has been met." Read the court's reasons here. The Globe and Mail press coverage is here. Combine Cusson with the more detailed reasons set out in the Supreme Court's decision in Grant v. Torstar Corp, and we have just seen a reboot of libel law in Canada.

Jeanette practices in the areas of intellectual property, marketing/advertising, technology and entertainment law with the firm of Stohn Hay Cafazzo Dembroski Richmond LLP. Her practice has an emphasis on intellectual property acquisition and protection, film and television production, licensing, publishing, brand strategy and leveraging, advertising and marketing compliance and privacy issues.
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3 Comments on “SCC Cusson + Grant: A Reboot for Canadian Libel Law”

  1. Owen says:
    December 22, 2009 at 4:47 pm

    It seems noteworthy that the Court opted for the broader term 'responsible communication' rather than 'responsible journalism'. Will this render it unnecessary for those who self-publish on the web to strain the definition of 'journalist' to encompass themselves as a prerequisite to the use of this defense?

  2. Omar Ha-Redeye says:
    December 23, 2009 at 4:53 am

    Is this really the first time that bloggers have been directly addressed by the Court, as Garry Wise suggests?

    If so, this might also represent greater scrutiny by the courts of blogs, and holding them to them to a similar level of journalistic responsibility as other publishers, especially in respect to the injury of reputation due to false information.

    Equating bloggers with the press as the Court did here could also represent a divergence in the Canadian approach to libel.

    Section 230 of the CDA in the US treats blogs differently than other publishers,

    No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

    .

    The English High Court in
    Smith v. ADVFN Plc & Others emphasized the informality of Bulletin Boards, which presumably relates to blogs as well,

    13. It is necessary to have well in mind the nature of bulletin board communications, which are a relatively recent development…

    14. …they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or “give and take”…

    16. When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions. People do not often take a “thread” and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.

    17. …From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious.

    I'm not sure bloggers have reason to celebrate quite just yet, but then again, encouraging responsible blogging probably isn't a bad thing either.

  3. Omar Ha-Redeye says:
    January 25, 2010 at 1:59 pm

    Great post by Matthew Nied today over at Law is Cool on how Grant could affect bloggers.

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