H. The next challenge: political speech

The rejection of the American "actual malice" rule in respect of public figures in Hill does not mean that Canadian defamation law is immu- table. The current accommodation of the interests in reputation and free speech is subject to adjustment if a compelling case for change can be made. An argument may be made, for example, for greater freedom of expression for political speech such as statements about the conduct and suitability for office of politicians and other public officials, which would not be protected by the conventional defences. The importance of an open and robust discussion of political matters in a healthy democracy, public interest in governmental affairs, the emphasis on free speech in the Charter of Rights and Freedoms, and the contribution of systems of mass communication to the vitality of political debate all support greater freedom of political speech for everyone including the print and visual media. These factors have not as yet prompted any significant change in Canada [Note 29: Moises v. Canadian Newspaper Co. (1996), [1997] 1 W.W.R. 337 (B.C.C.A.).] but some of them have led the High Court of Australia and the New Zealand Court of Appeal to introduce new generic privileges for factual political statements.

In Lange v. Australian Broadcasting Corporation [Note 30: (1997), 189 C.L.R. 520 (H.C. Austl.). The plaintiff, Lange, is a former prime minister of New Zealand.] the High Court recognized a privilege for all widely broadcast statements of information and opinion dealing with government and political matters affecting the people of Australia, provided that the defendant acted reasonably. Acting reasonably in this context includes holding a reasonable belief in the truth of the statement, taking reasonable steps to verify the statement, giving the subject of the defamatory statement a reasonable opportunity to respond, and publishing that response, unless it is impractical or unnecessary to do so. In Lange v. Atkinson [Note 31: [1998] 3 N.Z.L.R. 424 (C.A.) [Lange]. This decision was appealed to the Privy Coucil: see Lange v. Atkinson, [1999] J.C.J. No. 46 (P.C.)(QL). The Privy Council remitted the appeal back to the New Zealand Court of Appeal to permit reconsideration of its judgment in light of the House of Lords decision in Reynolds v. Times Newspapers Ltd., [1999] H.L.J. No. 45 (QL), delivered on the same day. The Privy Council held that the decision was largely one of policy to be resolved by the New Zealand Court of Appeal.] the New Zealand Court of Appeal recognized a qualified privilege for all "statements made about the actions and qualities of those currently or formerly elected to Parliament and those with immediate aspirations to such office, so far as those actions and qualities directly affect or affected their capacity (including their personal ability and willingness) to meet their public responsibilities." [Note 32: Lange, above note 31 at 468.] The statements must be of public rather than private concern. The Court did not, however, adopt the Australian qualification of reasonable conduct. Like other instances of qualified privilege, this new privilege is defeated only by proof of malice.

The House of Lords had an opportunity to review these Antipodean initiatives in Reynolds v. Times Newspapers Ltd. [Note 33: Above note 31.] The case dealt with a defamatory statement about a former prime minister of Ireland. The House of Lords did not adopt a special privilege for political information. It chose to give more emphasis to the public's entitlement to information by developing the conventional defence of qualified privilege. A publication will be protected where the circumstances support the conclusion that the defendant had a duty to publish information and the public had a corresponding interest to receive it. The relevant circumstances in determining if the public is entitled to the information include the seriousness of the allegation; the quality of the information including its nature, source, status, and degree of verification; the evenhandedness of the report, including explanations by the plaintiff; the general tone of the report; and the urgency and timing of the publication. Although qualified privilege was not established in Reynolds, the case clearly signals an increase in freedom of political speech. Lord Nicholls observed that courts should be slow to conclude that a publication is not in the public interest especially when the publication is in the field of political discussion. [Note 34: Ibid. at para. 59.]

In due course the current limitations of the tort of defamation on political speech in Canada will be challenged. The Lange and Reynolds cases will assist in focusing the debate, defining the issues, and suggesting workable options for change.

			A. Introduction
			B. Private Law