OF QUALIFIED PRIVILEGE *

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1 1200 Waterfront Centre 200 Burrard Street, P.O. Box Vancouver, B.C., Canada V7X 1T2 tel: (604) fax: (604) RECENT DEVELOPMENTS IN THE DEFAMATION DEFENCE OF QUALIFIED PRIVILEGE * ** The past have witnessed a dialogue between the highest courts of Britain, Australia and New Zealand on the extent and formulation of the defence of qualified privilege to actions in defamation. These decisions canvass the tensions between the individual s interest in preserving the integrity of personal reputation, and the personal and social interests in the free flow of expression. They examine mass-published media criticism of publicly elected officials, where these tensions are most acute. These developments and debates arise after the Supreme Court of Canada s pithy 1995 reiteration of the traditional test for qualified privilege in. Hill v. Scientology and the very fact-based application of that test in the companion case of Botiuk v. Toronto Free Press; as such they have outpaced Canadian jurisprudence on this very important defence. 1 After considering these issues, this article will review the Commonwealth developments, before reviewing very recent Canadian decisions bearing the influence of these Commonwealth decisions, as well as other developments in the law of qualified privilege. TRADITIONAL AND EVOLVING TESTS OF QUALIFIED PRIVILEGE Although the defence of qualified privilege is readily understood and can be easily described, its application is notoriously difficult. 2 The Supreme Court of Canada has endorsed the classic English formulation: a privileged occasion arises where the defendant has a duty or interest to communicate the information and the recipient has a corresponding duty or interest to receive it. 3 The law has recognized categories where this reciprocal relationship generally exists: a municipal council debate, a teacher s report of child abuse, an employee reference and a police report provide examples of occasions protected by qualified privilege based on the public C ALGARY M ONTR É AL O TTAWA T ORONTO V ANCOUVER * ** The author would like to thank Andrew Nathanson of Fasken Martineau DuMoulin LLP and Julia Lawn of Nathanson, Schachter and Thompson, who commented helpfully on drafts of this paper. Originally published in the Advocate (2001) 59:5. Republished with permission. CAUTION: The law is current to the date of original publication (2001) and has not been updated. The law may have since changed. is an Ontario Limited Liability Partnership

2 interest in encouraging these communications. The categories of qualified privilege are not, however, closed, 4 and the application of the duty interest test for qualified privilege can potentially be extended too far. This is evident when considering whether qualified privilege protects publication to a wide audience, as through the media. Arguably the public always has an interest, and the media a corresponding duty, to report on matters of public interest. Nonetheless, recognizing the great harm posed by defamatory mass publications and the lack of a direct interest-duty relationship between each individual reader and the publisher, courts have traditionally denied the qualified privilege defence to widespread publications. In recent years U.S. and Commonwealth courts have grappled with this issue, particularly in the context of mass-published statements of a political nature. In turn, the new Commonwealth case law has influenced consideration, by Canadian courts, of the defence of qualified privilege. U.S.: New York Times v. Sullivan On the basis of the first and 14th constitutional amendments, the United States has long afforded the widest protection to statements about public officials. Unless the plaintiff public official can clearly prove that the defendant acted with malice, no damages may be recovered. 5 Canada: Hill v. Scientology and Botiuk v. Toronto Free Press The impugned statements in Hill v. Scientology were not of a political nature but contained untrue slurs on the actions of a Crown prosecutor. The Supreme Court nonetheless considered and rejected the New York Times v. Sullivan presumptive privilege for political speech in its analysis of whether the defence should be reconsidered in light of section 2(b) expressive rights in the Charter. The court concluded that a blanket defence for political statements, regardless of occasion or circumstance, would excessively favour freedom of expression over protection of reputation. The court further noted that, because Canadian juries traditionally award more modest damages than their U.S. counterparts, there was less fear that such an approach would stifle freedom of the press. 6 The court in Hill went on to assert that the traditional two-part test for qualified privilege, as set out in the classic English authorities of Adam v. Ward and Horrocks v. Lowe, continues to be the law in Canada. 7 In the companion case of Botiuk v. Toronto Free Press, the court similarly 2

3 reiterated the traditional test, in relation to the defendant lawyer s publication of several statements improperly alleging financial misconduct on the part of another lawyer in handling the funds of a charitable society. While these decisions provide a useful black-letter summary of the two-part test for qualified privilege, they leave Canadian jurisprudence without the clarifying reevaluation of qualified privilege, as has been subsequently provided in the Commonwealth decisions canvassed below. Australia: Lange v. Australian Broadcasting Corporation In the 1997 decision of Lange v. Australian Broadcasting Corporation, the Australian High Court considered the availability of the defence of qualified privilege in the context of actual political statements by the mass media. 8 It concluded that the right of freedom of communication under the Australian constitution established that every person has a right and a correlative duty to communicate political matters. 9 The court thus recognized an extended qualified privilege for political information published on any occasion to any audience, and obviated the duty-interest analysis, which had proved unhelpful in considering mass publications. In order to invoke the defence, however, the publisher must show reasonableness in all of the circumstances of publication. Generally the publisher is required to prove that it honestly believed in the truth of its published word and that it took responsible steps honestly verify the facts, including, where practicable, seeking clarification from the plaintiff prior to publication. 10 The defence can also be defeated if the plaintiff shows that the publication was actuated by malice, that is, published to vent ill will or for some other improper purpose. 11 Britain: Reynolds v. Times Newspapers The English House of Lords considered and rejected the U.S. and Australian models in the 1999 decision Reynolds. 12 In his leading speech, Lord Nicholls of Birkenhead concluded that the common law should not develop `political information as a new `subject matter category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. 13 The learned law lords concluded that the proposed blanket defence would prevent adequate protection of reputation and deny the defamed politician the chance to clear his or her name. Further, the defence would draw an artificial line between (protected) political matters and other (unprotected) matters of public interest. The 3

4 existing common law of qualified privilege protected both reputation and freedom of speech through its flexible consideration of all of the circumstances. In this, the learned law lords retained the traditional duty-interest model for mass publications as well as for less widespread ones. In order to determine whether the public was entitled to know the published information, and the publisher correspondingly to communicate it, a court must review all of the circumstances. Lord Nicholls accordingly proposed a non-exhaustive list of factors to indicate whether the correlative duty-interest exists, and whether the defence of qualified privilege applies: 1. The seriousness of the allegation: the more serious the charge, the more the public is misinformed and the individual harmed if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information: reliance on hostile, biased, interested or ignorant sources can misinform the public. 4. The steps taken to verify the accuracy of the information. 5. The status of the information: the allegation may have already been the subject of an investigation that commands respect. 6. The urgency of the matter: news is often a perishable commodity. 7. Whether comment was sought from the plaintiff, although this may be unnecessary, impractical or obviously futile. 8. Whether the article contained the gist of the plaintiff s side of the story. 9. The tone of the article: a newspaper can raise queries or call for an investigation without adopting allegations as statements of fact. 10. The circumstances of the publication, including the timing. 14 4

5 New Zealand: Lange v. Atkinson The New Zealand Court of Appeal is the latest Commonwealth court to consider the proposed defence of political information privilege. It has crafted a position more protective of media defendants than courts in Australia, England or Canada. 15 In Lange v. Atkinson, the court justified departing from Reynolds by contrasting the more local and restrained New Zealand mass media with the more widely published and rabid media culture in Britain. 16 The court concluded that all members of the public have a presumptive interest in political statements, especially in information concerning the actions and qualities of those currently or formerly elected to Parliament. The presumptive defence is not absolute. It will be defeated if the defendant misuses the privilege. The court started with the traditional notion of malice: an improper purpose for the publication. The court noted, however, the difficulty of establishing actual malice or recklessness qua malice. It noted that, under the leading English test, mere carelessness on the part of the defendant will not establish malice defeating qualified privilege. 17 Here the New Zealand court found that, under its new conception, deliberate untruth, reckless untruth or careless untruth can all act to defeat qualified privilege. The court cited the Supreme Court of Canada s decision in Botiuk as authority that the carelessness of the defendants in taking insufficient steps to check the facts prior to publication could defeat the privilege. 18 CONSIDERATION OF RECENT COMMONWEALTH DECISIONS IN CANADA Canadian Rejection of the Antipodean Defence of Political Information Qualified Privilege The Alberta Court of Queen s Bench recently declined to apply a New. Zealand-style defence of political information qualified privilege in the well-publicized case of Goddard v. Day. 19 There the plaintiff was a lawyer who had defended a person charged with possession of child pornography. The defendant Stockwell Day published a letter in the Red Deer Advocate questioning the plaintiff s role as a trustee of the local school board, given the crime with which his client had been charged. Day sought to raise the novel defence of qualified privilege for political information. He tried to distinguish Britain s rejection of such a defence as based on that country s lack of a Charter of Rights and Freedoms. The court rejected this distinction, noting that the House of Lords had in Reynolds thoroughly considered human rights concerns. The 5

6 court then rejected the defendant s invitation to apply the wider New Zealand qualified privilege test, offering three reasons. First, Hill v. Scientology accorded more closely to Reynolds than to Lange v. Atkinson, in preserving the common law duty-interest test for qualified privilege. Second, widespread public interest in political statements about members of Parliament would not extend to comments about a local school board trustee. 20 Third, the proposed category of political information qualified privilege would dissuade good people from entering politics if doing so would expose their reputations to wide and largely unchecked abuse. 21 Influence of the Commonwealth Decisions in Canada Whereas Hill v. Scientology established that traditional common law principles of defamation survived the enactment of the Charter, the more recent Commonwealth decisions surveyed above have introduced new approaches to qualified privilege and are of increasing influence in Canadian courts. In Grassi v. WIC Radio, the court considered the 10 Reynolds factors in concluding that qualified privilege did not protect the assertion that the plaintiff had been charged with soliciting child prostitutes. In passing, the court noted that qualified privilege will rarely protect publication to the world. Such broad publication will almost always exceed the bounds of the defence. The stated exceptions are as in Reynolds: political statements that concern the public as a whole and matters of an urgent nature. 22 The plaintiff in Ramsey v. Pacific Press et al. was an MLA battling a recall campaign under the British Columbia Recall and Initiative Act. 23 In an interview Mr. Ramsey described the frustration expressed by some of his supporters that persons who did not bother voting in the last election were now deciding his fate. Mr. Ramsey repeated his supporters colourful phrase, these guys didn t even have the energy to get out of the La-Z-Boy and get to the poll. The co-defendant Province newspaper mistakenly attributed this characterization of the Prince George electorate to Mr. Ramsey himself, and the defendant radio host repeated this mistaken attribution. Mr. Ramsey sued both. 24 After a lengthy review of Lange v. Atkinson, Lange v. Australian Broadcasting and Reynolds, the court concluded that the radio host defendant bore the responsibility of investigating whether the original report was in fact true. Failure to do so deprived him of the defence of qualified privilege. 25 6

7 The court in Leenen v. CBC also made extensive use of the Reynolds factors to conclude that although a television news report on the plaintiff doctor s alleged conflict of interest and prescription of harmful pharmaceuticals was in the public interest, there was no public interest in the irresponsible and inaccurate manner in which the broadcast was made. Although the allegations might have been of interest to the public, the communication of those false statements was not in the public interest. Therefore they were not protected by qualified privilege. 26 The court in the companion case of Myers v. CBC also noted the utility of the Reynolds factors and their compatibility with the traditional duty-interest test used in Canada. 27 The evolving defence of qualified privilege affects not only the trial of an action in defamation but also of course preliminary applications to strike all or part of a statement of defence. In the 2001 Yew v. Globe & Mail decision, the Ontario Superior Court cited Reynolds with approval in finding that a legitimately raised defence of qualified privilege required consideration within the entire factual matrix at trial and that admittedly burdensome paragraphs supporting the defence should not be struck at a preliminary stage. 28 Qualified Privilege and Changing Commonwealth Jurisprudence Both celebration and caution should greet the changing Commonwealth jurisprudence on qualified privilege, as surveyed above. The Reynolds factors in particular move the amorphous and difficult test for qualified privilege away from the bare relationship between the publisher and recipient of information towards a more contextual review of all relevant considerations. But three cautions must be raised. The first of course is that post-1998 Australian and New Zealand decisions on qualified privilege should be applied with care in Canada as those countries have retreated from the duty-interest test, at least with regard to mass publications. The second caution is that even though the Canadian law of qualified privilege remains aligned with that of Britain, the two systems now in theory apply different conceptual models, at least with regard to mass publications. The Canadian Hill v. Scientology model still seeks first to classify the occasion as privileged or not, based on the duty-interest test, before moving on to consider whether that privilege is defeated through malice. Circumstantial considerations such as the untruth of the statement, the source of the information, and the fairness of the report take place at this second stage, where the plaintiff bears the onus of proof. In the United Kingdom, 7

8 however, these extrinsic factors also indicate whether or not privilege exists in the first place; the defendant bears the onus of convincing the court that together these factors support the argument that the occasion is one protected by a qualified privilege. An illustration of this difference arises where a defendant reporter is negligent in checking the truth of the published allegation. Under the English test, this negligence could affect the existence of a qualified privilege. In Canada, under Hill v. Scientology and Botiuk, this circumstantial negligence would not affect the issue of whether the reader had an interest in receiving and the publisher a duty in making the publication. It would, however, affect the consideration of whether the defence would be defeated through a finding of malice or other excesses of publication. 29 This article will address the issue of malice in greater detail below. The third caution is that as the English test enters Canadian jurisprudence, the above conceptual framework will become blurred. In some ways it already has: in Leenen and Ramsey a hybrid English-Canadian test appears to have been applied, with the negligence on the part of the defendants working to deny a defence of qualified privilege, and further and in the alternative negating that defence through a finding of malice. In this, the speech of Lord Hope in Reynolds becomes prophetic. In that speech, his Lordship expressed concern that the circumstantial test for qualified privilege improperly imports issues going to malice into the question of whether qualified privilege applies at all. 30 Ultimately, in most cases it will not matter whether carelessness, or any of the 10 Reynolds factors, is applied to the considerations of qualified privilege or malice or both; the result will be the same. It is necessary, however, to retain a conceptual delineation between these two issues, especially in a jury trial: as noted by Lord Hope, whether or not qualified privilege is open to the defendant is a question of law for the judge; whether or not malice or abuse should defeat that privilege is a question of fact for the jury. ELEMENTS DEFEATING QUALIFIED PRIVILEGE Cautions arising from possible disjunction between Canadian and Commonwealth law on the issue of qualified privilege also arise with the issue of whether the extrinsic circumstances of publication will defeat an otherwise successful plea of qualified privilege. As discussed above, Canadian defamation law looks at circumstances beyond the relationship between the publisher 8

9 and the recipient to determine if the defence, once raised by the defendant, is then defeated by proof of malice by the plaintiff. In Canada, the plaintiff may defeat an established defence of qualified privilege in either of two ways: 1. the defendant published the statement maliciously either by: (i) (ii) publishing a falsehood deliberately, or recklessly, without regard to its truth or falsity; or publishing not for the sake of effecting the social purpose protected by the qualified privilege but rather to advance an ulterior purpose; or 2. the defendant exceeded the limits of the qualified privilege, either by: (i) (ii) publishing the statement beyond the interested group; or publishing a statement that was not reasonably appropriate to the legitimate purposes of the occasion. 31 Malice The defence of qualified privilege is not absolute and may be defeated if the plaintiff can show that the defendant made.the publication maliciously. The jurisprudential use of the word malice here can be misleading, however, as it is not limited to its ordinary meaning of animosity or hatred. Instead, publication is deemed malicious and unprotected by qualified privilege (or for that matter, the defence of fair comment if it is published not to accomplish the societal good underlying the defence of privileged communication, but rather to advance any indirect motive or ulterior purpose. 32 Related to the idea of malicious advancement of an ulterior motive is the defendant s state of mind in publishing of a falsehood. As in the criminal law whence the law of defamation flows, the court will equate recklessness as to the truth or falsity of the publication with actual malice. It makes no difference whether the defendant knew the statements were false or whether the defendant did not care whether they were true or false. Proof of either state of mind will establish malice for these purposes. Traditional jurisprudence, however, has held that mere carelessness short of recklessness will not establish malice defeating the defence of qualified privilege. 33 9

10 The New Zealand decision of Lange v. Atkinson illuminates the Canadian progression toward a more relaxed test for malice, one that may permit mere carelessness to defeat qualified privilege in certain circumstances. 34 In Hill v. Scientology, public statements impugning the integrity of the plaintiff Crown counsel exceeded any privilege that might have otherwise attached to them. The defendant in that case ought to have conducted a thorough investigation into the allegations prior to publishing them to the media with expectation of wide publication and professional harm to the plaintiff. 35 In Botiuk, the court endorsed the Horrocks v. Lowe proposition that in general nothing short of recklessness will establish malice. The court concluded, however, that, based on the circumstances, carelessness on the part of the defendants constituted malice 36 In that case, the defendant lawyers were duty-bound to take reasonable steps to investigate the truth of the allegations. Their careless failure to do so constituted malice. In Hodgson v. Canadian Newspapers Co., the defendants published a series of newspaper articles alleging that the plaintiff, a municipal engineering commissioner, had improperly recommended the purchase (with public funds of certain lands from his friend. 37 The Ontario Court of Appeal explored a number of issues concerning malice in Hodgson. The first point was evidentiary. It is an error not to allow the defendant facing an allegation of express malice the opportunity to provide evidence on his state of mind and what he meant by the impugned words. 38 Although the defendant s intention is irrelevant to the issue of whether the words conveyed a defamatory meaning, the defendant s intention may affect consideration of malice with regard to the defences of privilege or fair comment, or with regard to damages. The court recognized the complication that evidence ruled inadmissible on one issue may be admissible on another issue. 39 The second point was factual. The court found the above evidentiary point to be ultimately moot as there was ample evidence of actual malice on the part of the reporter. The reporter sought not to inform his readers but rather to create a sensational one-sided story. The Leenen court levelled similar criticism against the defendant journalists, noting that the defendants indicated their malice by not seeking to publish a balanced and informative story. Instead, through the wilful omission of contrary facts and the decision to use innuendo-laden camera edits, the defendants presented a sensational drama in which the plaintiff doctor was cast as a morally 10

11 compromised and bumbling villain. 40 Further evidence of malice was found in the defendants failure to provide the plaintiff with an opportunity to respond, their republication of the programme, their dilatory and costly litigation tactics, their reliance on a biased source and their use of ambush interview tactics. 41 In two appeals last year in which malice was alleged, Esson J.A. revisited his 1982 decision in Vogel v. CBC, a leading case in Canadian defamation jurisprudence. 42 In that decision, his Lordship found that the dominant goal of the media defendants was to produce a sensational television programme through the repeated untruth that the plaintiff, the Deputy Attorney- General, had manipulated prosecutions. In more recent decisions (such as Pressler v. Lethbridge Westcom TV Group Ltd.), Esson J.A. indicated judicial concern over the parade of libel plaintiffs for years afterward, all claiming their case is `just like Vogel. 43 In Pressler, his Lordship emphasized that malice is not indicated through any improper or ulterior motive; rather, that motive must be the dominant motive. Where the issue is in doubt, a court should be slow to draw the inference of express malice. In Taylor-Wright v. CHBC-TV, Esson J.A. noted that there is nothing inherently wrong with a media defendant seeking to advance its reputation through an interesting story. Such a motivation is not evidence of malice. It is only where the media defendant is primarily motivated to produce a sensationalistic story, at the expense of journalistic fairness, that malice is shown. 44 Exceeding the Limits of the Duty Qualified privilege is also defeated when the limits of the duty or interest are exceeded. 45 The information communicated must be appropriate to the context of the occasion. It must also not be published beyond the interested group. In Ward v. Clark the defendant premier was held to have exceeded the limits of qualified privilege. 46 The court found that the defendant, based on the briefings of his aides, believed his comments to be accurate; the court also found that it was not unreasonable for the defendant to reply to the plaintiff s own widely publicized criticisms of the defendant. Nonetheless, the defendant did not need to exploit the occasion of privilege to denigrate the plaintiff. As in Botiuk, the defendant s response was disproportionate to the occasion, and the defence was thereby defeated

12 OTHER RECENT DEVELOPMENTS IN QUALIFIED PRIVILEGE Qualified Privilege for Press Conferences Qualified privilege protects not only words spoken at press conferences but also any materials distributed at conferences for later reference: see McCartan Turkington Breen v. Times Newspapers Ltd., where the House of Lords reviewed a decision of the Court of Appeal for Northern Ireland. 48 This conclusion was based on the court s interpretation of a section of the Northern Ireland statute granting such privilege to reporting of public meetings. That section resembles the English statutory provision and also section 4 of the British Columbia Libel and Slander Act. 49 On the express words of the statute, however, such reporting must be fair and accurate and must not be motivated by malice. Qualified Privilege for Reports of Court Documents and Orders Qualified privilege protects media reports of documents filed in the court registry, even where those documents have not been read out in open court: Taylor-Wright. That action arose when an internal struggle erupted between factions in an Okanagan charitable society, with the new management accusing the old management of improprieties. The new group filed several affidavits detailing these accusations against the plaintiffs, members of the old group. The media defendants broadcast several early news stories based entirely on the contents of the affidavits filed by the old group prior to their use in open court. 50 The court did not embrace this proposition with enthusiasm, however; it concluded that it was bound by Hill v. Scientology, which effectively, if not expressly, overruled earlier authorities protecting only documents read in open court. 51 In his considered and scholarly reasons, Esson J.A. noted the potential for unfairness and abuse if courts cast blanket protection over the bulk of unread and at times irresponsible material filed in the registry. 52 This conclusion that court filings were protected by qualified privilege did not, however, end the enquiry in the case on appeal. The court found that, notwithstanding the protection of qualified privilege, the media defendant had to prove that it exercised a high degree of care in ensuring that its report was accurate and fair. It held that, at a minimum, the news report should have made clear to viewers that the plaintiffs had filed their own reply affidavits denying the 12

13 allegations, and that the court had not yet resolved the dispute. The court noted that although this duty to provide balanced reports might create practical difficulties for the media, this duty was a necessary check on potential abuses unleashed by the ruling in Hill v. Scientology. 53 Similarly, in M.D. Mineralsearch Inc. v. East Kootenay Newspapers Ltd., the defendants reported that the plaintiff had been found guilty of violating the Trade Practice Act. 54 The court rejected the defendants reliance on section 3 of the Libel and Slander Act, which protects as privileged fair and accurate reports...of proceedings publicly heard before a court Although the plaintiff had in fact been found guilty, the defendants owed a duty of fairness to also report that the impugned advertisement had harmed no consumers and that it arose due to a clerical error rather than the plaintiff s intention to deceive. CONCLUSION The increasing influence of the Reynolds circumstantial test for qualified privilege, and the expanded duty of fairness on defendants publishing to the world, will enable courts and plaintiffs to demand a higher degree of responsibility from publishers. At the same time, the contextual guidance provided by Reynolds will help media defendants to meet these legal responsibilities through greater certainty. While confusion could arise from the unconsidered influx of significant new Commonwealth case law arising from Lange v. Australian Publishing, Lange v. Atkinson and Reynolds, on the whole this clarification of the amorphous test for qualified privilege, flowing in part from the contextual approach of the Canadian cases of Hill v. Scientology and Botiuk, will nourish the law of defamation. Document: :01 13

14 END NOTES Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129 ( Hill v. Scientology ); Botiuk v. Toronto Free Press, [1995] 3 S.C.R. 3 at 37-38, 126 D.L.R. (4th) 609 ( Botiuk ). R.E. Brown, The Law of Defamation in Canada, 2nd ed. (Scarborough: Carswell, 1999) ( Brown ), for example, devotes more pages to the subject of qualified privilege and its difficulties than to any other subject in this leading text. Hill v. Scientology, supra, note 1, at para. 143, applying Adam v. Ward, [1917] A.C. 309 (H.L.) ( Adam v. Ward ). Moises v. Canadian Newspaper Company (1996), 24 B.C.L.R. (3d) 211 (C.A.) at 218. (1964) 376 U.S. 254 ( New York Times v. Sullivan ). Hill v. Scientology, supra, note 1, at para Horrocks v. Lowe, [1974] 1 All E.R. 662 (H.L.) at 666, 669 ( Horrocks v. Lowe ). (1997), 189 C.L.R. 520 (H.C. Aust.) ( Lange v. Australian Broadcasting ). Ibid., at para. 62. Ibid., at paras Ibid., at para. 69. [1999] 4 All E.R. 609 (H.L.) ( Reynolds ). Ibid., at Ibid., at 626. The court concluded in that case that although the statements concerned a matter of public concern, the defendant journal s failure to publish the plaintiff s explanations of the matter made the resulting article not information that the public had a right to know. The defence thus did not apply. The action was well travelled. In 1998 the New Zealand Court of Appeal found a general qualified privilege defence to exist: [1998] 3 N.Z.L.R The plaintiff appealed to the Privy Council, which in its manifestation as the House of Lords had just decided Reynolds. The Lords noted that Reynolds had changed the law in Britain, but that the balance between freedom of expression and protection of reputation would be best undertaken by a New Zealand court: [2000] 1 N.Z.L.R. 257 (PC.). In its second consideration of the matter, the New Zealand Court of Appeal reviewed and rejected Reynolds and reasserted its earlier conclusions: 2000 N.Z.C.A. 95 ( Lange v. Atkinson ). Ibid., at para. 34. Horrocks v. Lowe, supra, note 7, at 666, 669. It remains to be seen whether the Reynolds factors will influence considerations of whether qualified privilege protects non-media statements. If so, in English law as in Canadian, carelessness short of recklessness could act to defeat the privilege. Lange v. Atkinson, supra, note 15, at paras In Botiuk, supra, note 1, at paras , the court found that qualified privilege existed, but found malice to exist as the defendant lawyers should have investigated the verity of their claims. Note, however, that in Botiuk this aspect of malice is actually discussed under the heading of malice going to damages, rather than malice defeating qualified privilege A.B.Q.B. 942 ( Goddard v. Day ). But note Lange v. Australian Broadcasting, supra, note 8, at para. 63, where the extended qualified privilege attaches to discussions of a federal, state or even local level. Goddard v. Day, supra, note 19, at paras See also Reynolds, supra, note 12, at 641; Derrickson v. Tomat (1992), 88 D.L.R. (4th) 401 (B.C.C.A.) at 408; and Hill v. Scientology, supra, note 1, at para In this, the result in Goddard v. Day will probably personally benefit the defendant politician in the long run. 14

15 [2000] 5 W.W.R. 119 (B.C.S.C.) at paras The plaintiff in Grassi v. WIC Radio was a Vancouver firefighter. After a conversation with an undercover officer in an area known for high traffic in underaged prostitution, the plaintiff was arrested and charged with soliciting prostitution services. He was not charged with soliciting sex from minors. As part of their campaign to deter would-be patrons of prostitutes generally, however, the police, in a press release, listed the plaintiff s name alongside the names of persons charged with seeking sex from minors. In his report, the mistaken WIC Radio reporter created the impression that all of the listed individuals, including Mr. Grassi, had been charged with procuring sex from. minors. Framing the issue in the traditional test of reciprocal interest and duty here illustrates the lack of utility of that test. The media outlets did feel themselves duty-bound to report that a person accused of soliciting prostitution service was supervising children. The public would correspondingly be interested in receiving this information B.C.S.C ( Ramsey ) at paras. 2, 15. The plaintiff settled with the co-defendant Province. Ibid., at para Leenen v. CBC (2000), 48 O.R. (3d) 656 (S.C.J.) at para. 123 ( Leenen ) at para (2000), 47 C.C.L.T. (2d) 272 (Ont. S.C.J.) at para. 75. Instead of applying the Reynolds factors, however, the court, like the court in Grassi, supra, note 22, focused on the lack of urgency in denying that the defendants had a duty to publish the programme to the world at large: para. 79. [2001 ] O.J. No. 317, at paras Note that in both Hill v. Scientology, supra, note 1, at para. 154 and Botiuk, supra note 1, at para. 84, the Supreme Court concluded that the duty-interest test had been fulfilled by the relationship between the defendants and the recipients of the information, and thus the defence of qualified privilege was made out by the defendants. In both cases, however, the defendants failure to adequately investigate the truth of the statements resulted in the defeat of that defence. Although the court does not discuss at length the burden of proof at each stage, the defendant bears the onus of raising the defence through the establishment of the duty-interest relationship; the plaintiff bears the onus of tearing down that defence through the proof of malice or excess of publication. Reynolds, supra, note 12, at 656. Botiuk, supra, note 1, at paras ; Hill v. Scientology, supra, note 1, at paras ; P Milmo, ed., Gatley on Libel and Slander, 9th ed. (London: Sweet & Maxwell, 1998), at 13.7(I) ( Gatley ). Hill v. Scientology, supra, note 1, at paras Horrocks v. Lowe, supra, note 7, indicates that the exceptions of knowing falsity or improper motivation are really the same exception, both requiring a lack of belief: Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. Under the English test, it is a very high threshold for establishing express malice. By contrast, the Hill v. Scientology formulation of alternative exceptions makes malice more readily proved by the plaintiff. It is very difficult to obtain an admission, or to expose the defendant s mind to reveal knowing falsity or likely recklessness as to the truth or falsity of the publication. If that approach fails, however, the plaintiff may very well have more success in showing an improper motivation. See, for example, Horrocks v. Lowe, supra, note 7, at 666, 669. Lange v. Atkinson, supra, note 15, at para. 51. Hill v. Scientology, supra, note 1, at paras Botiuk, supra, note 1, at para. 98. But note, as stated above, that this discussion of malice is not directed to qualified privilege but damages. (2000), 189 D.L.R. (4th) 241, 49 O.R. (3d) 161 (C.A.) ; app. for leave to appeal to S.C.C. filed 21 September 2000: No ( Hodgson ). Ibid., at paras

16 Ibid., at paras. 41. Leenan, supra, note 26, at paras. 146, 152, and 162. Ibid., at paras Note the influence of the Reynolds factors, supra, note 12. [1982] 3 W.W.R. 97, 35 B.C.L.R. 7,21 C.C.L.T 105 (S.C.) at 193 ( Vogel ) B.C.C.A. 639 at paras and para B.C.C.A. 629 at para. 66 ( Taylor-Wright ). Hill v. Scientology, supra, note 1, at para. 146; Botiuk, supra, note 1, at paras (2000), 77 B.C.L.R. (3d) 364 (S.C.), at paras Botiuk, supra, note 1, at para. 88. [2000] 3 W L.R at 81. R.S.B.C. 1996, c. 263, coupled with the definition in s. 1 of public meeting (the Act ). Taylor-Wright, supra, note 44, at para. 24. Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339, referred to in Taylor-Wright, supra, note 44, at para. 26. Taylor-Wright, supra, note 44, at paras. 2444, especially para. 30. For similar judicial reasoning in the context of discovery, distinguishing between discovered documents read in open court which do not attract the implied undertaking of confidentiality, and filed but unread documents which do, see Discovery Enterprises Inc. v. Ebco Industries Ltd. (1997), 42 B.C.L.R. (3d) 192 (S.C.). Taylor-Wright, supra, note 44, at paras B.C.S.C at paras The Act, supra, note