Further reading does not alleviate my creeping concern that last week the Supreme Court extended a stricter standard upon publicly shared personal speech than it may have intended or than a citizen might like. While most read the rulings as some sort of victory for bloggers now being recognized as semi-journalists, the movement from personal to professional communication by definition could make for a new grey area in which communication which perhaps had previously not been held to a professional standard due to the nature of the medium in which they are made.

The ruling in Grant v. Torstar, 2009 SCC 61 was released on the same day as another, Quan v. Cusson, 2009 SCC 62. In both the test for the defence of "responsible communication on matters of public interest" in cases of defamation is discussed and applied. The cases arose from fact situations relating to the news media but in the Grant ruling the Court mentions blogging four times. There is no use of the words "blog" or "bloggers" in Quan and nowhere in the Grant ruling is the concept of blogging defined other than in the statement at paragraph 62:

The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause.

The problem with this statement is that bloggers are not always and, in fact, are not often "others engaged in public communication on matters of public interest." The illusion of citizen journalist has simply never materialized. 99% of all blogging is chatter based on unskilled personal gut reaction. It is the blether of the coffee shop or the taxi ride. It is an outward presentation of citizen opinion and in no way attempts to frame the perhaps impossible ideal of objectivity. The rulings do not mention that. This co-mingling of concepts may lead to or, worse, arising from a certain understanding of the place of the citizen in relation to the community. At paragraph 64, McLachlin CJ for the majority states:

"...the traditional test fails to protect reliable statements that are connected to the democratic discourse and truth-finding rationales for freedom of expression."

It is this sort of language that I find problematic as I did not understand there needed to be rationales for freedoms. I thought the freedom of expression were inherent, based on we being humans and not allowed for by the state where there is a greater "rationale" for its identification. The freedom of the press comes to we in Canada through the American experience leading up to the American Revolution and after. It was formed by the need to restrict claims of seditious libel under which the powerful maintained their hold on power through constraining opposition. Freedom of expression is a bigger thing. While it includes political communication it moves mainly though non-political speech. It includes the right to be musical, to have speak of one's faith, to explore what it means to be alive. Tyrants hate freedom of expression of all sorts. North Koreans are not allowed to state that their personal love is superior to love of the state. The Communists of Albania jailed folk dancers and singers for not expressing the provided wisdom of the government. These sorts of tyrants hate all manner of expression, including but not limited to freedom of the press, because through this communication freedom is most free.

In addition to the question of scope, consider the test against which this defence is made out as it is stated at paragraph 28 of Grant:

A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, e.g., R. A. Smolla, “Balancing Freedom of Expression and Protection of Reputation Under Canada’s Charter of Rights and Freedoms”, in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 272, at p. 282. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3.) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

If we look at the test, we see some internal balances. Is the alleged defamation a wrong "in the eyes of a reasonable person"? Is it reasonable that the words of a goof-ball in his or her pajamas should be equate with formal, important speech? Also, was it published just because it is archived and searchable in the medium of internet writing? If the medium is found to be a publication, then the publisher "is responsible for everything that appears" in the publication. Given the cacophony of the internet, is it reasonable to equate each blog post or comment with mass news media? Does the analogy hold? Is it more reasonable to analogize to a newspaper or a conversation over double doubles and Timbits? I think it is one thing for a citizen to say that a political leader or a master of industry is a fool and a hazard and another thing from a newspaper or TV station to proclaim it from the headlines. The fact that communications media technology changes should not alter that.

There are plenty of forms of communication which convey negativity and plenty of forms of speech which are protected. Some are absolutely privileged against repercussion through the courts such as speech made in Parliament or discussions with legal counsel. Others are protected based on an evaluation through judicial examination under the defamation test. But is there not another sort of speech? Isn't the right of a citizen to prattle away a form of minimally injurious communication that no reasonable person would deem defamatory? Or have all these sorts of yappery made in digital format now captured by the idea of "others engaged in public communication on matters of public interest" because we talk through a new set of tools?

Don't get me wrong. I am glad that political speech set out within - or is it upon - the internet is protected. But in claiming grandiose victory, have we sacrificed the humble through labeling too much as engaging "in public communication on matters of public interest"? As digital communications advance and become more pervasive, are we losing something. Imagine a day when phone conversations may be transcribed as a matter of course and made available. Will that be publication? Do we now face a future where every utterance becomes potentially so dangerous to someone's reputation or even the order of society that each citizen will have to watch his step, measure his words?