'Anyone…In Any Medium'?: The Scope of Canada's Responsible Communication Defence

Abstract

In Grant v Torstar, the Supreme Court of Canada adopted a defence to defamation of responsible communication on matters of public interest (RCMPI). It protects speech on matters of public interest so long as the communication was responsibly made, with reference to indicia of ethical journalism. RCMPI is based in part on the United Kingdom’s Reynolds defence but is broader in that it is not limited to journalism, as the Reynolds defence originally was. Rather, RCMPI applies to “anyone…publishing in any medium”.

There is reason, however, to question whether RCMPI actually applies to any kind of communication or whether it is restricted to media cases (journalism) and to new media cases (those who publish to the world at large). Grant frequently refers to journalists and new media communicators such as bloggers. In addition, some courts have been interpreting RCMPI as inapplicable to non-media cases.

The article argues that Grant is best understood as applicable to any kind of communication – not just journalism and new media cases. If that is true, however, it makes little sense to assess whether communication is responsible with regard to indicia of ethical journalism. For example, seeking the plaintiff’s side of the story and communicating it may be indicative of responsible journalism, but it is less clearly relevant to whether a tweet or conversation with a friend is responsible. The article therefore proposes that the indicia of responsible communication be abandoned in favour of negligence law’s “reasonableness” inquiry.

Keywords: defamation, libel, slander, responsible communication, responsible journalism, Reynolds, defences, free speech, responsible communication on matters of public interest