Journalists across Canada celebrated the unanimous Supreme Court of Canada ruling granting a new defence for libel – “Responsible Journalism” or “Responsible Communications.”

It’s obvious why established news organizations – with legal teams, corporate support and money – would find this ruling immediately useful – but, I think many Canadian bloggers and communications advisors were left scratching their heads as to what it meant for them.

As one lawyer for the Ottawa Citizen said, “It will be interesting to see how these communications advisers now are going to advise their clients. I don’t think you can say ‘no comment’ anymore.”

Hopefully this post helps sort through some of the implications for bloggers and communicators.

This new defence protects publishers from judgment if they have reasonably attempted to secure the information and facts needed prior to publication of the story – and still end up making a mistake that results in legal action.

In other words – more simply – if a reporter does her homework (due diligence) and makes every effort to “get it right” – but still ends up making a mistake that she get sued for – this defence will protect the reporter (and publisher) from losing in court.

Now, as noted Canadian legal academic Michael Geist says on his blog (emphasis mine):

“In a big win for new media and bloggers, it concludes that the defence applies broadly… This is crucial decision for all publishers both big and small. It represents a major win for freedom of expression in Canada and should remove some of the libel chill that arises far too frequently.”

What kind of due diligence would you have to put in to avail yourself of this defence ? Well, helpfully the court lays it all out.

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.

Here are a few possible implications in relations to blogging:

1. Freedom of Speech could be bolstered online; many cease and desist letters are combatted daily using “fair use” doctrine in the US; I can see how bloggers (with access to legal help) could push back against libel chill in the same way traditional media will now be able to – the path will be blazed by the traditional media; but expect bloggers to point to precedent once it’s established
2. Bloggers may move forward with more provocative or investigative work; knowing that they have less to fear if they make an error and they are sued for it; a defence exists to defend against judgment
3. Bloggers could feel more emboldened with Supreme Court protection to phone up a subject of a controversial story and ask them to confirm or deny facts;

The bottom line for bloggers seems to be “Blog Responsibly”. The Supremes’ new libel defence says if you make a small mistake – it’s OK – just as long as you really were being responsible and the matter is in the public interest.

In my estimation, much more immediate than implications for bloggers is what this ruling means for public relations firms, political communications advisors and lawyers advising clients in media situations.

Canadian Press reported Ottawa Citizen lawyer Richard Dearden as saying the ruling will increase journalist standards because “you have to be responsible.”

“You can’t phone at midnight and the presses are going to roll two minutes later and (say) well, we couldn’t reach that person. That won’t be responsible. But if you’ve given them fair opportunity to respond and they choose not to, that’s up to them, you’ve done your job.”

The bottom line for public relations professionals seems to be: have another lawyer or two on standby. You may need their advice soon.

Read the full ruling here.