Libel thaw

A new defence could help journalists fight defamation suits if they prove they did everything they could to get it right.

By Laura MacKenzie

Under the responsible journalism defence, journalists’ research would be scrutinized to determine whether they acted responsibly. (Photo: Laura Mackenzie)
Under the responsible journalism defence, journalists’ research would be scrutinized to determine whether they acted responsibly. (Photo courtesy: Laura Mackenzie)

By Laura MacKenzie

In 1994, Harvey Cashore helped break one of the biggest political stories in recent Canadian history, the tale of the German-Canadian businessman Karlheinz Schreiber and his controversial dealings with former Prime Minister Brian Mulroney.[1].

A year later, the producer with CBC television’s the fifth estate was pulled off the story. Schreiber had launched a $35 million defamation suit, and lobbyist Frank Moores had sued for $15 million.

It would be four years before Cashore could dig into the tangled tale once more and even longer before the program would do another segment on the issue.

It wasn’t for lack of evidence.

Cashore had Schreiber’s daily agenda. The journalists from the fifth estate had interviewed dozens of people, collected ‘thousands of pages of documents, all raising questions about Brian Mulroney’s relationship with Schreiber. But Mulroney wouldn’t talk to them, and publishing what they had without his comment would have been risky.

“We had this information that the public should have known about, and we couldn’t report it,” says Cashore. “That was a frustrating experience, and I don’t think it serves the public interest. But on the other hand, we didn’t want to get sued for another $50 million.”

The Airbus story eventually prompted a federal inquiry, and Cashore says people would have known about it sooner if he and his colleagues had felt free to publish what they knew. But Canada’s defamation laws stood in the way.

Good journalism is based on research and evidence. With enough evidence, a journalist can feel he or she is justified in publishing an important story. But in a courtroom, when faced with a lawsuit, truth can be a difficult thing to prove. And truth has traditionally been the best defence against defamation.

The spectre of a costly lawsuit can scare journalists away from covering important stories. This has come to be known as libel chill.

Linden MacIntyre co-hosts the fifth estate. He says the threat of a lawsuit can have a positive impact on journalists: it makes them smarter, more careful. But he says it can hurt smaller publications. “The little guys have to be concerned about the cost of truth. So of necessity they will … back down a bit, pull their punches.”

But journalists across Canada could soon have a new defence, to go along with the existing defences of truth, privilege and fair comment.

The Ontario Court of Appeal has already accepted the new defence, which would protect journalists writing public-interest stories, if they can prove their research was thorough and fair. And with two cases now before the Supreme Court of Canada, the new “responsible journalism” defence could soon be available to journalists across Canada.

If the top court endorses it, the defence will allow journalists to hand over their tapes and notebooks and be judged by how well they did their jobs.

A defence develops

It started in 1994. In Britain, The Sunday Times ran a story accusing the then-Irish prime minister, Albert Reynolds, of misleading the Irish parliament. Reynolds sued for libel. The ensuing trials and appeals [2] gave birth to the responsible journalism test, an expansion of the existing qualified privilege defence.

The media coalition says current libel law keeps journalists from covering important stories. (Photo courtesy: Laura MacKenzie)
The media coalition says current libel law keeps journalists from covering important stories. (Photo courtesy: Laura MacKenzie)
Qualified privilege allows you to communicate defamatory information about someone under specific circumstances: if you have a duty to tell someone, and they have a corresponding interest or duty to listen. It has often been invoked to protect communications such as reference letters, union communications and medical communications. But in the British case, the court expanded this defence to say journalists who write in the public interest will not be liable if they cannot prove every fact in their stories, if they can show they did everything they could to get it right.

Journalists would now be judged by the Reynolds rules. The ten factors include the seriousness of the claim, the tone of the story and the source of the information. Factors could be added or given less weight, depending on the case.

The High Court decided that the Reynolds story would have deserved this defence, except for one thing: the paper didn’t include Reynolds’ version of events. So the Times lost.

This set the stage for another case, in 2002, Jameel v. Wall Street Journal.

The European edition of the Journal had published a story that said the Saudi Arabian central bank was monitoring bank accounts associated with prominent businessmen to prevent them from being used to fund terrorism.

A Saudi businessman and an associated company sued for defamation, and the Journal lost at the trial stage.

But on appeal, the Law Lords said the new defence had been interpreted too narrowly since Reynolds [3]. They found the trial judge had used the Reynolds rules as hurdles that must all be cleared, rather than as flexible guidelines. The Wall Street Journal won.

The Canadian cases

The appeals before Canada`s highest court involve the Canadian interpretation of the precedents set in the British cases.

First came Cusson v Quan.

In 2001 the Ottawa Citizen ran a story about Danno Cusson, an Ontario Provincial Police officer who had gone to New York City to assist after the Sept. 11, 2001 terrorist attacks. Cusson sued over the Citizen`s characterizations of his actions and his qualifications.

The defence used the truth defence, but also argued qualified privilege, saying the Citizen had a duty to report on Cusson’s controversial actions as a police officer, and that the public had an interest in receiving that information. The judge acknowledged that qualified privilege sometimes applied to publications to the world at large, but ruled that in this case, the Citizen had “no compelling, moral or social duty” to publish. The Citizen lost.

On appeal [4], the Citizen tried to use the responsible journalism defence, citing the Jameel ruling. The Ontario Court of Appeal accepted the defence in principle, but didn’t let the Citizen use it, because it had not been addressed in the actual trial.

Grant v Torstar Corporation came the next year.

Peter Grant is a prominent Ontario businessman and friend of former Ontario Premier Mike Harris. He sued the Toronto Star over an article it published related to a proposal from Grant to expand a private golf course, in part by acquiring crown land. The Star story included a statement that “(e)veryone thinks it’s a done deal because of Grant’s influence – but most of all his Mike Harris ties.”

Grant sued and for the first time in Canada, the defence argued the responsible journalism defence at trial. But the judge ruled that the story did not include Grant’s side, was too accusatory, and was only of interest to the people living in Grant’s community. Grant was awarded almost $1.5 million in damages.

The Star appealed and Ontario’s top court allowed the appeal and ordered a new trial.

Now both these cases have been appealed to the Supreme Court of Canada. It has reserved judgment, so it may be months before the decisions come out. But outside the court, there is debate over whether the defence is necessary, and what it could mean for journalists and the public.

Obstacles to truth

Mary Agnes Welch is a reporter for the Winnipeg Free Press, and the president of the Canadian Association of Journalists. The CAJ was part of a media coalition [5] that intervened in the Cusson and Grant cases to advocate the responsible journalism defence.

Lawyer Peter Downard says the defence doesn’t do enough to protect reputations. (Photo courtesy: Laura MacKenzie)
Lawyer Peter Downard says the defence doesn’t do enough to protect reputations. (Photo courtesy: Laura MacKenzie)

Welch says libel chill is a huge problem for journalists. Libel law is complicated. Precedents in different cases can conflict with each other, and many journalists don’t totally understand the rules.

“My colleagues and I are always yelling at each other saying ‘Can you libel a company? Is truth a defence? Should I keep my notebooks?’”

Another issue is sources who refuse to speak to reporters. It’s sometimes impossible to be sure you’re right until you’ve talked to the subjects of your story. But they don’t always want to talk, and that makes it harder to show their side.

Cashore says finding the truth is a process. It never comes out all at once, but investigations can build on things that have been published before. He says journalists need to be able to publish what they do know, to get the discussion started.

Cecil Rosner agrees. Rosner is managing editor for CBC Manitoba. He quotes the famed Washington Post investigative duo of Bob Woodward and Carl Bernstein, saying journalists need to be thorough and have the ‘best available version of the truth.’ But he said they shouldn’t be ashamed if new information changes the story after they publish.

“It’s what scientists do all the time.”

Peter Jacobsen helped represent the media coalition before the supreme court. He says the responsible journalism defence would address journalism directly, and avoid the “legal fiction” of applying qualified privilege to the media. This could make defamation law more predictable.

This defence would make some allowance for the imperfect circumstances of journalism; the complex rules, the uncooperative subjects, and the important stories that only come out one slow piece at a time.

Still playing defence

The defence could give journalists more freedom, but Welch says it’s not a free pass.

“We would have to go to court and say ‘Listen, I called this guy five times, he didn’t call me back…Here’s all the documents I have that show I did my very best to paint a clear picture. I didn’t trick anybody, I didn’t deliberately ignore stuff, I didn’t torque the lead.’”

Jacobsen agrees.

“It’s not a question of throwing something against the wall and saying ‘well, we’re journalists, we can make these allegations.’ You’ve got to prove to the court that you’ve done everything you could possibly do to verify your story.”

The defence could also have implications for non-journalists. The Canadian Civil Liberties Association intervened [6] in the Cusson and Grant cases. It proposed the defence apply to anyone communicating in the public interest. This interpretation would avoid the sticky question of who is a journalist, and who isn’t.

The other side

But some lawyers who have represented plaintiffs in libel cases say the new defence shifts the balance too far in favour of the media.

Peter Downard represented Peter Grant. He says the Reynolds rules focus too much on journalists’ standards and not enough on the consequences for plaintiffs.

“It becomes easy to give a greatly diminished weight, under that test, to the interests of people who can be hurt by the publication.”

Richard Caza represented Danno Cusson. He insists Canadian libel law already fairly balances the interests of expression and reputation. Journalists can use truth or fair comment as a defence against libel, and he says they don’t need a new defence.

“It’s not enough for a journalist to say ‘Well, I made a few phone calls, I did this, I did that.’ No.”

This defence could make libel suits more difficult for plaintiffs.

“Someone will come in and say ‘Do I have a case?’ and I’ll say ‘I don’t know!’” says Caza. “How do I know if you have a case? I don’t know if the journalist was responsible.”

And for those not backed by a government or company, losing a libel suit could mean bankruptcy.

Another Option

There are other critics. Daniel Henry represented the CBC when they intervened in the Cusson and Grant cases. Henry says the outcome of using the Reynolds test is difficult to predict, leaving much at the discretion of the judge. He says there is a need for a defence for everyone, and in the world of Twitter, it would be unreasonable to hold everyone up to the responsible journalism standard.

The CBC has proposed an alternative, the “good faith communication” test. The emphasis would be on whether the claim was made in honest belief. The plaintiff would have to establish that the communication was not in the public interest. Failing that, he or she would have to show that the defendant had no reason to believe the statement was true, or had taken no steps to find out.

If the plaintiff shows the statement is untrue, the defendant must be willing to correct the record to use the defence.

This would demand less than the Reynolds test, but Henry says bad journalism has its own deterrents.

“The penalty for getting it wrong is loss of credibility. It doesn’t have to be administered through the court.”

Tentative optimism

Defamation is always a balancing act. The Supreme Court is expected to deliver its ruling sometime this year, and we will know whether that balance will change in Canada.

The stakes are high. Welch said even if the defence is accepted, there are bound to be challenges on every aspect of it over time. It could be a while before the final shape of the Canadian version of the defence is clear. That said, she is optimistic it will help remove some of the chill.

“Probably people won’t notice it, but journalists will. And maybe that will allow newspapers and broadcasters to spend a little more time, put a little more effort into deeper investigative stories…that, from the CAJ’s perspective, would be excellent.”