An OPP officer is suing two Ottawa Citizen reporters for defamation for a story that was mostly true. A third reporter was found to be shielded by qualified privilege.

The lawyer for the employer of the two reporters is trying to convince the Ontario Court of Appeal to consider a new definition for qualified privilege that would get his clients off the hook and move the goalposts in a direction that would be favourable to journalism.

From the June 16 Globe and Mail story:

To succeed at the classic defence of qualified privilege, the judge must find the journalist had a duty to share the information and that the public had an interest in receiving it. The reporters must also be found to have acted without malice, something the jury had done in this case.

Yesterday, Mr. (Rick) Dearden asked the judges to consider a new approach to qualified privilege called the Reynolds-Jameel defence, based on two libel cases the British House of Lords has ruled on in recent years.

The Reynolds-Jameel method asks whether the story was a matter of public interest, whether the defamatory statement was necessary to the article, and whether the reporters exercised "responsible journalism."

Mr. Dearden argued existing law has "undesirable rigidity," punishing reporters for statements found to be false even when they did everything they could to ensure their truth. The new approach should be used "to allow the media room to make a mistake on issues of great importance," he said.

Mr. Cusson's lawyer, Ronald Caza, expressed concerns that bringing the Reynolds-Jameel approach to Canada would cause "fundamental change" in Canadian law, which tends to favour protecting an individual's reputation over freedom of expression. "You don't have the right to publish things that aren't true," Mr. Caza said.

Peter Jacobsen, a lawyer who intervened on behalf of The Globe and Mail and other news organizations, said in an interview that the new approach would allow journalists "to have greater certainty, because we know that if we practise good journalism and it's in the public interest, then we're going to be granted the privilege."

It's interesting that the decisions Mr. Dearden cited came out of the U.K., because the approach is similar to the one followed by U.S. court for years.

At this late hour, I can't find a great article on the landmark 1964 U.S. case of New York Times Co. v. Sullivan, but here's a 1991 Columbia Journalism Review article of the book Make No Law, by famed NYT columnist Anthony Lewis. It lays out what the case was all about.

Here's the Wikipedia article on the case, and here's the actual decision.

I'll include a few excerpts from the text by Justice William Brennan:

"... We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

".. Erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the "breathing space" that they "need . . . to survive," ...

"A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions -- and to do so on pain of libel judgments virtually unlimited in amount -- leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.[fn19] Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See, e. g., Post Publishing Co. v. Hallam, 59 F. 530, 540 (C. A. 6th Cir. 1893); see also Noel, Defamation of Public Officers and Candidates. 49 Col. L. Rev. 875, 892 (1949). Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." Speiser v. Randall, supra, 357 U.S., at 526. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. "

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not. * * * * *

"Such a privilege for criticism of official conduct[fn21] is appropriately analogous to the protection accorded a public official when he is sued for libel by a private citizen. In Barr v. Matteo, 360 U.S. 564, 575, this Court held the utterance of a federal official to be absolutely privileged if made "within the outer perimeter" of his duties. The States accord the same immunity to statements of their highest officers, although some differentiate their lesser officials and qualify the privilege they enjoy.[fn22] But all hold that all officials are protected unless actual malice can be proved. The reason for the official privilege is said to be that the threat of damage suits would otherwise "inhibit the fearless, vigorous, and effective administration of policies of government" and "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." Barr v. Matteo, supra, 360 U.S., at 571. Analogous considerations support the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official's duty to administer. See Whitney v. California, 274 U.S. 357, 375 (concurring opinion of Mr. Justice Brandeis), quoted supra, p. 270. As Madison said, see supra, p. 275, "the censorial power is in the people over the Government, and not in the Government over the people." It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves."