Has Justice Robert J. Sharpe put process before truth in libel ruling?

In a single, Titantic decision last week, the Ontario Court of Appeal may have gone against Canada’s own Supreme Court and sacrificied more than 100 years of libel law jurisprudence at the altar of the Charter of Rights and Freedoms. The impact, if other judges read the decision the way some observers have, will be far-reaching and survive for decades. Every subject of a tough news story or opinion piece, particularly public company executives and individuals in the public limelight, may suffer as a result.

For those of you not acquainted with the inner-workings of the Canadian media, you may not have stopped to notice the victory laps run by the Globe & Mail and Toronto Star over the past few days. Elation doesn’t begin to describe how the editors and publishers must be feeling in the wake of the Defamation case titled “Cusson v Quan“, released on November 13, 2007.

For decades, both before and after the introduction of the 1982 Canadian Charter of Rights and Freedoms, individuals in Ontario have enjoyed the right to a reputation. Although the Charter refers to “freedom of the press” and “free speech”, no Canadian Court has ever taken “freedom of the press” to mean the media have the right to defame individuals, particularly if they get key facts wrong.

When dealing with a contentious story, writers and editors in most newsrooms would consider a few key questions:

– is what were are about to publish true?
– can we prove it?
– if we have human sources for the information that the story is based upon, will they testify in Court someday if we needed them to?

Mr. Justice Robert J. Sharpe took it upon himself last week to potentially throw out those simple tests, in favour of an undefinable test called “responsible journalism”, where process trumps the truth. Here are some of the more galling highlights of his written decision (italics mine):

“Para. 128 There is a very real difference between what a speaker honestly and reasonably believes to be true and what can be proved to be true in a court of law. The threat of litigation under a legal regime that leaves no margin for error, even where the speaker took all reasonable steps to verify the facts, discourages free and open debate on matters of public importance.”

“132 Individual reputation should not be unduly sacrificed….”

“140 The public interest responsible journalism defence gives appropriate recognition and weight to the Charter values of freedom of expression and freedom of the media without unduly minimizing the value of protecting individual reputation.”

“142 I recognize that adopting this defence shifts the focus of defamation law away from the truth and towards the conduct of the defendant. In my view, this is an acceptable price to pay for free and open discussion.”

“143 The defence rests upon the broad principle that where a media defendant can show that it acted in accordance with the standards of responsible journalism in publishing a story that the public was entitled to hear, it has a defence even if it got some of its facts wrong.”

The practice of libel law in Canada is a specialty, to be sure. Few folks outside the libel bar, newspaper publishers and the odd journalism professor spend much time on the topic. I’ll bet none of our readers have ever thought much about the topic. But the number of people impacted by this decision will number in the thousands over the next half century.

Over the past four decades, very few libel cases have made their way to Court (Munro, Hodgson, Leenan, Myers, Young and Grant). Despite hundreds of millions of words published in print and uttered on television, there have been perhaps half a dozen major cases over the past 25 years. There are a series of reasons why that might be:

1. The media get the story largely right most of the time.
2. Despite receiving more than 500 libel suit threats each year a piece, each major Canadian media outlet is actually sued only about 1-1.5% of the time. The targets of these specific stories either “get over it”, are advised by their own lawyers to abandon the case after a few letters are exchanged between the parties, spend some money to make their point and then throw in the towel well prior to the Discovery Stage, settle for a nice letter (“we don’t think you are a bad person”) from the publisher, etc.
3. When the media get a story very, very, very wrong, they publish a correction, clarification, or, sometimes, even an apology (apologies are published less than once a year) to avoid a libel suit.
4. People such as Conrad Black, Martha Billes and Paul Reichman made it their business (prompted by the media) to ensure that journalists, editors, publishers and their legal advisors understood that precision, truth, fairness and balance were essential to stories and columns if the newspapers and newsmagazines in question wanted to avoid a libel suit.

Truth.

A word that should be at the core of any media outlet’s reason for being. “Getting to the truth” is certainly something that icons such as 60 Minutes have long since made their name on. Most of us would believe that it isn’t too much to ask for a newspaper to print the truth. After all, there are thousands of readers out there who share the view that “if it’s in the paper it must be true”. That’s already a pretty powerful weapon.

For the would-be plaintiff in a libel case, even if you had been wronged in a story, the old saw was “never pick a fight with people than buy ink by the barrel and newsprint by the ton.”

But, if the target of a story had their reputation sullied, they could always count on the Court if they wanted to bring the matter to a head. False comfort, unfortunately, as it’s not that easy to sue the media even if you believe you have been defamed.

First off, there’s the issue of perception. As more than one journalist has joshed, if you sue for libel there’s an assumption at their end that you must have something to hide. Then there’s the informal friendship network between journalists across organizations. Just have a look on Facebook and see who their friends are: other journalists. Sue one of them, and you might be unwittingly picking a fight with all of their friends.

Secondly, many newspapers and TV stations have libel insurance (First Liberty) from an outfit in Kansas City, which pays the defence costs on any libel suit, once the initial deductible is utilized. Unlike you, the media are rarely paying for even half of their defence (other than the annual premiums and the first $50k-$100k), assuming a standard litigation budget would exceed $400k.

Then there’s the question of your own costs. Although sending a “lawyers letter” isn’t expensive (maybe $2,500), no major media outlet will take you seriously in a libel matter until you reach the stage of Discovery. To get that far, you need to file a Statement of Claim, produce an Affidavit of Documents, put up with motions to the Master and Appeals to the Superior Court of decisions that the Master renders in your favour; count on $50,000-$75,000 for that round.

There’s a reason why most libel plaintiffs are either rich or backed by the public purse (if a government employee sues the media for libel, and the story covered their role as a public servant, the State pays the legal tab).

Discovery will cost you $2,500 per day, and it could go on for 10 or 15 days, depending upon the number of defendents involved in the action. By now, you’ve invested more than a thousand hours of your own time, as well.

Once you’re over that hurdle, all of the evidence should be on the table. Oh, except for one thing. The source of the actual negative story. If it was a human source(s), don’t count on the journalist telling you on discovery who told the journalist the terrible things (true or not) that led to the story you’re suing over. The media generally believe source protection was handed down by Moses, and are unlikely to give up the name(s) quickly, unless it helps their case and/or the source agrees.

As a plaintiff, you will spend $100,000 -$200,000 and the better part of two years to often learn little more than you knew on the day the offending story ran. Which means you are usually not much closer to settling the case, nor winning, unless you commit to spend another $150,000-$250,000 to take the case through trial.

But Mr. Justice Sharpe thinks that’s still too easy, that the so-called Newspaper Rule isn’t sufficient protection of a free press, and that the media need even more ammunition to defend themselves from the score of serious plaintiffs the Canadian media have encountered over the past 25 years. Even when “they get a few facts wrong” (as per his decision).

The concept of “responsible journalism” certainly ins’t new, and every consumer of the press would have assumed that it already existed. After all, isn’t that what is taught in journalism school? Why, then, did Justice Sharpe need to re-write the existing post-Charter libel law?

If a journo wasn’t “responsible” under the pre-existing libel case law, they could be sure to risk losing their case: Munro, Hodgson, Leenan and Myers were all examples of lawsuits where the media outlet was seen by a Court to have been irresponsible. Tedesco as well. The media defendent lost in each case (and would have on Tedesco), and each of these suits were decided after the Charter was brought into place. Freedom of the press existed at that time, as it has in the British system for centuries, but so did the requirement to print the truth and act responsibly.

For some reason, this isn’t good enough for Justice Sharpe. And this is the fear.

Starting today, a memo will be distributed to editors and journalists by their media lawyers. It’ll lay out the new “Miranda Approach” to ensuring that their staff can rely on this ludicrous defence the next time they are sued for defamation:

1. Write story. It may take several days or weeks.
2. Call the Story Target for comment on the key elements of the article. Leave a voicemail (“Hi, My name is Terry Tabasco. I’m a writer with the National Pest….”). If it is 5 pm and you are filing the piece at 7 pm that evening, let 20 minutes lapse and call a second time.
3. If the Story Target doesn’t call back, send them an email advising that you are about to run a story in which you discuss XXXX about them.
4. If you don’t have an email address, send a fax. Maybe knock on their front door at home.
5. Make notes of these attempts to provide balance and fairness to the story.
6. Run story, whether or not you hear back. If they do call you back and refuse to provide a comment (as in “I don’t want to give it any credibility by commenting”), all the better. Include in the story that the Story Target refused to comment.

It is that simple. If a source tells you that Merchant Banker X uses public company funds to pay for the gardening at his/her home, and you run the story, it appears that you may have a defence even if 1) you tried but failed to get the other side of the story from the Merchant Banker in question, and 2) you got key facts wrong.

And it isn’t as though there aren’t reams of examples of where journalists have suffered the same failings as the rest of society, whether or not they were plying their crafts responsibly.

In Canada, there were the recent cases of plagiarism (or non attribution) at the Toronto Star and Globe & Mail (Globe called it an “attribution” issue). See the examples here from 2006, the Montreal Gazette in 2005. Then there were the 2004 cases of Elizabeth Nickson and Brad Evenson of the National Post.

In the United States, three major national newspaper outlets (The New York Times, The Washington Post and USA Today) have all had to face the fact that high profile and even Pulitzer Prize award-winning journalists on their staff have lied about their published work, their sources and the research allegedly supporting same. In the case of The New York Times and USA Today, for example, the two journalists in question (Kelly and Bragg) had been recipients of many awards, including the Pulitzer Prize: “Reporter fabricated stories, USA Today finds”, Associated Press, March 20, 2004; “USA Today Finds Fabrications in Star Reporter’s Stories”, Washington Post, March 19, 2004; “Fear and Lying at USA Today”, Washington Post, January 11, 2004; “Jayson Blair scandal: NYT top editors quit”, Reuters, June 6, 2003; “Suspended NYT reporter Bragg says he’ll quit in a few weeks”, The Washington Post, May 27, 2003; “CORRECTING THE RECORD; [New York] Times Reporter Who Resigned Leaves Long Trail of Deception”, The New York Times, May 11, 2003; “Witnesses and Documents Unveil Deceptions In a Reporter’s Work”, The New York Times, May 11, 2003.

What does this have to do with new caselaw regarding “responsible” journalism, you may ask? Simply put, the media are already sufficiently well-financed, thoroughly trained, and very influential over society. Despite these strengths and luxuries, journalists have same human frailties as police officers, nurses, bankers and every other member of society; that’s why judges need to be as cautious with their evidence as they are with witnesses and defendents from every other walk of life.

To give the North American media incremental legal defences flies in the face of the credibility issues they’ve brought upon themselves over the past decade.

In the Cusson v Quan case, the defence of responsible journalism wasn’t even pled at the trial stage. It was introduced by 3rd party “friendly” media defendents during the appeal process. Mr. Justice Sharpe decided that, as it wasn’t pleaded at the trial, the defence couldn’t bring it up after the fact…but then went on to write it into his decision nevertheless. Knowing that he was creating new law, even though it wasn’t properly included in the Appeal case before him.

I’m a fan of those folks who sit on the bench, but in this case I can see why some are worried about the increasing trend of judicial activism!

To say that this decision ignores the Supreme Court’s decision in the recent Hill v. Scientology case isn’t an overstatement. According to Justice Cory:

“the common law of defamation complies with the underlying values of the Charter and there is no need to amend or alter it”…”[s]urely it is not requiring too much of individuals that they ascertain the truth of the allegations they publish”.

Justice Cory didn’t write that people needed to try to ascertain the truth, he said that it wasn’t “requiring too much of individuals that they ascertain the truth of allegations they publish.”

Justice Sharpe also ignored the direction of Mr. Justice Holland, who in Munro v. Toronto Sun Publishing (1982) wrote:

“the great power and influence possessed by the media is an important factor in molding public opinion and its exercise requires great care to be taken as otherwise great harm can result;”

and

“Freedom of the press has long been recognized in democratic society as a vital necessary. Given that freedom, in my opinion the work of the investigative reporter must meet the test of absolute reliability, and those who may be responsible for that reporter’s efforts must take steps to ensure that this is accomplished.”

In Reid v Telegram Publishing, the truth also mattered, although that was way back in 1961, before the Charter was introduced:

“…not only prove the bona fides under which their information was given but also its truth in fact.”

In his desire to modernize our way of life, Justice Sharpe ignored not only his own Supreme Court (Justice Cory in the Hill decision), but the wonderfully titled Arnold v. The King Emperor, written by Lord Shaw in the 1914 decision of the Judicial Committee of the Privy Council:

“Their Lordships regret to find that there appeared on the one side in this case the time-worn fallacy that some kind of privilege attaches to the profession of the Press as distinguished from the members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute-law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments is as wide as, and no wider than, that of any other subject. No privilege attaches to his position.”

In its Friday editorial, the Globe and Mail even referred to the type of story it would now pursue as a result of Justice Sharpe’s decision: the word they referred to was muckracking.

According to the Oxford Dictionary, muckracking should be taken to mean:

“the action of searching out and publicizing scandal about famous people”

The headline to the editorial said it all: “Reporting just got a bit easier“. Is this what Mr. Justice Sharpe had in mind?

This topic will be debated for decades, unless his colleagues on the bench rein this madness in.

MRM