Monday, December 28, 2015

The almost finished tale of Arthur Kent or how to handle the media when they come calling; the new defence of Responsible Communication on Matters of Public Interest

I have been following the Arthur Kent defamation story and his legal action for over a year now. Originally I knew nothing of the circumstances which befell Mr. Kent.  However, after learning about his circumstances from his blog, reviewing the discipline decision of the Law Society of Alberta resulting from the complaint made against Kristine Robidoux, and reviewing the many articles written about what he experienced, I strangely have empathy for what he experienced.  Mr. Kent's trial finally commenced in November of 2015 and was scheduled to be completed in early December of 2015.  If it was completed we now await the Court's decision relating to the comments made by Calgary Herald Journalist, Don Martin, which ostensibly brought down the political aspirations of Mr. Kent.

More practically though Mr. Kent's circumstances led me to review the Grant v. Torstar Corp. decision of our Supreme Court of Canada.  This case highlights how careful persons should be when dealing with the media.  In the Torstar case our Supreme Court of Canada has provided guidance in respect to the obligations and responsibilities of the media when reporting on controversial matters; the Court refers to "The Elements of the Defence of Responsible Communication" and created a new defence distinct from the "traditional defence of qualified privilege".  The new defence is referred to as the Defence of Responsible Communication on Matters of Public Interest.

The Court stated "The authorities offer no single “test” for
public interest, nor a static list of topics falling
within the public interest" and then articulated many instances of topics which are of public interest.  The Court articulated that the "seriousness of the allegation" must be considered and whether the matter is of "public importance", whether inclusion of the defamatory statement was justifiable among other considerations including, without limitation, the "urgency of the matter" and the "status and reliability of the source".  One of the most intriguing aspects of the test is "whether the Plaintiff's side of the story was sought and accurately reported".

This part of the test of the defence of Responsible Communication on Matters of Public Interest makes it very clear that if the media does not make attempts to check their facts prior to publishing then this defence will NOT be available to the media.  This requirement of the media to fact check to be able to defend against the allegation of defamation opens up a much larger issue for individuals who are being hounded by the press.  I was taught and typically I am guided by the principle that it is best to not speak or communicate with the media as the media will simply select only that which reflects the "spin" they wish to put on the issue.  However, in light of the Torstar case abiding by this principle may lead to a situation where the media is able to knowingly misrepresent the actual nature of an incident or situation because of a refusal of the other party to communicate with the media.  Torstar gives to the media the defence of Responsible Communication on Matters of Public Interest but also ostensibly creates an obligation on parties on the other side of stories to communicate an alternative characterization to the media.

For example consider a situation where the media is informed by only one of the parties involved and the other party ignored the media's request for an interview.  The story will be "one-sided" and such characterization will allow the media to communicate and print information which may well be incorrect.  It is only by the other party communicating with the media and obtaining a commitment from the media (preferably in writing) that they will print the "other side" of the story that persons can gain any control over the tendency of media to exaggerate and print falsehoods; that is to defame the reputation of those alleged of the heinous acts.

The Court summarized the test for the defence of Responsible Communication on Matters of Public Interest at paragraph 126:

Summary of the Required Elements
[126] The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where: A. The publication is on a matter of public interest, and B. The publisher was diligent in trying to verify the allegation, having regard to: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and (h) any other relevant circumstances.

I am not recommending in this blog that in all circumstances one should feel compelled to speak with or communicate with with the media.  However, it is now an essential aspect of the defence of Responsible Communication on Matters of Public Interest that media actively seek out the other side of the story.  If the other side (that is you) fail to communicate with the media then one may be doing so at one's own peril.