Journalists accused of libel now have a new defence, thanks to a ruling handed down this week by the Ontario Court of Appeal.

Under the unanimous ruling written by Justice Robert Sharpe, journalists who write a story dealing with matters of public interest can be protected against libel suits, as long as they can prove that they acted responsibly in researching and writing the story.

The ruling represents a significant shift away from the traditional common law, under which journalists being sued for libel had to prove the truth of the facts they reported. The court ruled that obliging journalists to prove facts to the high standard of truth expected in courts of law puts too much of a muzzle on freedom of expression and debate.

"Where a media defendant can show that it acted in accordance with the standards of responsible journalism in publishing a story that the public was entitled to hear, it has a defence even if it got some of its facts wrong," the court ruled. "Debate on matters of public interest will often be heated and criticism will often carry a sting and yet open discussion is the lifeblood of our democracy."

But the lawyer for the man whose libel lawsuit led to the ruling said the new defence is bad news for private citizens trying to protect their reputations from negative media reports.

"Now they need to prove, not only that it's defamatory, but that the standard of responsible journalism ... was not met. That's an additional burden of proof," said Ronald Caza. "I think the consequences are not good for the community at large and the rights of private citizens."

The ruling comes as a result of a libel suit brought by former OPP officer Danno Cusson against the Citizen and three of its reporters: Doug Quan, Don Campbell, and Kelly Egan. Mr. Cusson sued the paper for libel after it published reports about his activities at Ground Zero after the Sept. 11, 2001, attacks on New York City.

The paper reported that Mr. Cusson misrepresented himself and his dog as a trained RCMP sniffer-dog unit, when in fact he was not an RCMP officer and his dog had no formal certification in search and rescue.

In deciding the libel suit, the jury ruled that much of the information contained in the newspaper articles was true and was not libellous. However, the jury ruled some parts of the stories libellous and ordered the paper to pay Mr. Cusson $100,000 in damages.

The newspaper argued a defence of "qualified privilege," saying that because the stories were in the public interest, the paper had the duty to publish in the circumstances that existed following the attacks. The trial judge allowed this defence for only one of the three reporters, but the newspaper appealed, leading to the present ruling.

In its ruling, the Court of Appeal agreed that "qualified privilege" does not apply, because a newspaper does not have an absolute right to publish stories on matters of public interest, without regard to their truth or falsehood.

However, the court said that a different defence, the "public interest defence for responsible journalism" could apply.

Despite opening the door to a "responsible journalism" defence, the court ruled that the new defence does not reverse the libel decision in the original case brought by Mr. Cusson against the Citizen. Since the paper did not try to argue a defence of responsible journalism during the trial, it cannot now make that argument on appeal, the court held.

"A litigant, to use the vernacular, is only entitled to one bite at the cherry," Judge Sharpe wrote.

Mr. Cusson's lawyer, Mr. Caza, said he was pleased that the Court of Appeal did not overturn the ruling in his client's case, and that it did not accept the broader, "qualified privilege" defence.

"It's good news ... in that it forces the journalists to be following the standard (of responsible journalism)," he said.

The Citizen's lawyer, Richard Dearden, said that while the court's rejection of the "qualified privilege" defence was disappointing, he is elated by the creation of the new "responsible journalism" defence.

"It's definitely a landmark ruling that benefits all the media, at least in this province," he said. "Now the media have the leeway to be wrong on stories of public interest if those stories are published responsibly."

© The Ottawa Citizen 2007