Although few observers expect the ruling to have much effect on current practices both online and among more established media, many see it as the latest evidence of the court’s determination to protect freedom of expression from undue legal attack in Canada. “This is a Supreme Court that has demonstrated it takes freedom of expression very seriously,” Knox said, “and thinks that restrictions on freedom of expression should only be created or interpreted very sparingly.”
Recent court decisions have broadened the definition of “fair comment” in Canadian law, bolstered the protection of confidential sources used by journalists, and introduced a “responsible communication” defence in defamation cases, which mitigates the law when people can prove they did their best to discover the truth of a potentially actionable matter.
“We’ve really had the court now pronouncing in a very pro-freedom-of-expression way,” Toronto lawyer and defamation specialist Peter Jacobsen said, noting, however, that the court which made those decisions will soon be reconstituted after the loss of two members.
Collectively, the recent decisions have brought Canadian practice closer to the U.S. model – where defamation lawsuits are much harder to prosecute – thus potentially removing the “chill” that is often said to repress investigative journalism in Canada. Few observers expect it will lead to any more irresponsible behaviour than the Internet already encourages.
“The decision in itself will not make for “a more freewheeling media,” according to University of Carleton University professor Christopher Dornan. “Originators of content are still bound by existing laws of libel and slander, not to say hate speech and the rest,” he said in an e-mail. “But imagine the icy chill if the ruling had been the reverse. That would have made for a very different media environment, and one at odds with other imperatives of a free society.”
In one important qualification to its decision, the court said that hyperlinkers can be held liable if they suggest approval of the defamatory content they link to.
“Is the Internet susceptible to mischievous behaviour?” asked Vancouver lawyer Robert Anderson, who represented several intervenors representing the media and free-speech groups in the hyperlinks case. “Absolutely. Is this judgment going to allow that to happen. No, I don’t think so.”
Although he agrees that the latest ruling appears to be part of a trend toward relaxing restrictions on free expression in Canada, Anderson suggested the Supreme Court’s decision is less a statement of grand principle than it is a bow to reality. “I won’t say this is a one-off, because it’s not,” he said. “But in some measure, this case was driven perhaps more by the realities of the Internet and of social media than necessarily an enlarging of the importance of freedom of expression.”
Either way, the ruling is a victory for the Internet that its Canadian friends will gladly accept.
