FREEDOM OF THE PRESS, THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS, AND A NEW CATEGORY OF QUALIFIED PRIVILEGE

Abstract

On public policy grounds, the defence of qualified privilege, in the absence of malice, allows an appropriate defendant in a defamation action to escape liability even when he has published defamatory and untrue statements of the plaintiff. Under pre-Charter law, it was well established that a member of the media could not invoke the defence of qualified privilege where the only basis for invoking the defence was the existence of a public interest in the subject matter. This article makes two basic arguments. It suggests firstly that the Charter of Rights applies to regulate purely private transactions between individuals, and secondly, following the reasoning of the United States Supreme Court, that the application of the fundamental freedom of "freedom of the press and other media of communication" would create a new category of qualified privilege for media defendants when they publish information about people in public life.