With media standards at issue, make way for “expert” witnesses
Will a new libel defence bring business to self-styled experts in media practice? As Rhiannon Russell reports, that’s been the case in Quebec, and the rest of Canada may follow suit.
John Miller knows journalism. He’s worked as a reporter for decades, held various management positions at the Toronto Star, and was, until retirement, a professor and two-time chair of Ryerson University’s School of Journalism. Now, he testifies as an expert witness in libel cases concerning journalism’s standards of practice.
And he doesn’t always side with the media.
Miller says that when he started out as an expert witness, “the first question I asked myself was, ‘What am I in this for?’ I decided my answer was good journalism.” If he thinks a media outlet is in the wrong, he’ll testify against it.
On his website, The Journalism Doctor, he calls himself journalism’s “sternest critic.”
It’s been 15 years since Miller first took the stand as an expert, and he’s not alone in his critique and analysis of journalism. With a new libel defence working its way through much of Canada’s legal system, some media lawyers predict that defamation cases might increasingly turn into battles between expert opinions.
That prospect worries Brian Macleod Rogers, who has defended news organizations at every level including the Supreme Court of Canada. Though he admits experts can be helpful in some cases, Rogers says their testimony often isn’t conclusive.
“Different journalists use different approaches,” he says. “Experts can state their point of view, but it isn’t necessarily the ‘right’ point of view. It’s just what that person thinks is right.”
If libel litigation is going to see a flood of experts, the floodgates opened in December 2009 with the Supreme Court ruling on Grant v. Torstar. The case broke ground for journalists, offering them a new libel defence of “responsible communication in the public interest.” Responsible communication means that a journalist sued for libel will win if she demonstrably tried her best to verify the allegedly libelous statements before the story was published.
While journalists, by and large, see this development as a good thing, it muddies the waters of journalistic standards. What is responsible communication? The rules aren’t set in stone.
To combat this ambiguity, plaintiffs and defendants have turned to expert witnesses. These witnesses are often retired journalists and journalism professors who testify (on behalf of who’s paying their fees) as to whether the outlet’s conduct meets the standard of sound journalistic practice.
“Ultimately, the court is going to have to decide, but it has to have help, people would say,” says Bert Bruser, media lawyer and counsel for the Toronto Star.
He offers a hypothetical example: a journalist writes a story full of allegations about someone, and calls said person the day before the story is to be published to verify the allegations. The journalist can’t reach the person, and the story runs the next day.
The story’s subject then sues for libel. “The plaintiff will say, obviously, [one day] wasn’t enough time given the circumstances. The defence will say, no, that’s responsible,” Bruser explains. The problem is, there’s no firm answer.
So, if the defence pleads “responsible communication,” the plaintiff will look for an expert to testify that one day is not nearly enough time to allow for verification. But, "when the plaintiff starts calling an expert … it almost becomes imperative for the defence to do the same,” Rogers says. And the defendant’s expert will, of course, argue that, in daily news, a day is standard practice.
Who wins? The most persuasive expert, according to Rogers.
“It’s not as if there’s just one monolithic view,” says Daniel Henry, senior legal counsel at CBC. “The expert is ultimately just rendering a point of view. It’s up to the court to determine what was responsible given the circumstances,” he says.
Expert witnesses, on the other hand, feel their testimony adds to these cases and helps the jury understand journalism’s standards.
“In cases where there is a certain level of complexity, [expert witnesses] can be useful,” says Marc-FrançoisBernier, professor at the University of Ottawa and a journalism ethics specialist who’s also worked an expert witness.
Miller agrees. Some journalists put forward “pretty lame” defences for their work, he says. He mentions one case in which newspaper staff argued its editors were too busy to read what was going into the paper.
“So far, plaintiffs are doing quite well in arguing media are not practising responsible journalism,” he says. The most basic aspect of the profession, he says, is getting both sides of the story, and he estimates that, in 75 per cent of cases he’s worked, journalists aren’t doing that.
Christian Leblanc, partner at Fasken Martineau in Montreal, disagrees vigorously. He says that journalists have tried, at the very least, to get both sides of the story in about 95 per cent of cases he’s familiar with.
“I’d say journalists do a good job,” Leblanc says. “Nobody’s perfect, but they don’t wake up in the morning saying, ‘Who am I going to defame today?’”
Still, Leblanc doesn’t think a “battle of experts” in libel cases is anything to fear. “The courts are used to that,” he says. In engineering and medical cases, for instance, expert witnesses often testify, sharing disputing opinions.
Julian Porter, who’s worked as a lawyer for 50 years, says judges can decide if they’d like to hear expert testimony. “Some judges will just let everything in and will consider it all at the end of the day,” he says. “Some judges will just say no [to experts].”
Bernier suggests an alternative, perhaps less biased, method of incorporating experts into libel cases.
“It seems to me a better way to do it would be to have just one, hired by the judge,” he says. This way, experts wouldn’t be paid by the plaintiff or defendant to argue one side or the other.
Leblanc isn’t convinced this is a good idea. He says the judge might then feel obligated to follow that expert’s opinion. An opinion is just that, and “I’d have a problem if the rights of my clients depended on an expert,” he says.
Though it’s too early to tell if calling experts to the stand will become commonplace in libel cases outside of Quebec, that province offers both contrast and comparison.
While courts in the rest of Canada work with common law, where judges follow one another’s precedent to build the legal framework, Quebec operates under a Civil Code that goes back to Napoleonic Europe. Under that code, the Court of Appeal of Quebec ruled in 1994 that libel can be justified by a standard of reasonableness, similar to the new responsible-communication defence in the rest of Canada.
Bernier calls this standard “the rules of art,”* and if journalists can prove they acted according to them, they’re innocent of defamation.
Experts have become increasingly prevalent in Quebec since the Néron v. Chambre des notaires du Quebec case in 2004. In that case, the Supreme Court ruled that even if published or broadcast information is true, a journalist can still be guilty of libel; for instance, if information is omitted that would show the truth in a different light.
“The most important criterion is … whether or not the journalist has written or published or broadcast their report according to the normal applicable rules of journalism,” says Leblanc.
While truth remains an absolute defence for libel in the rest of Canada, the search for standards of practice will dominate where responsible journalism is claimed, just as in Quebec cases.
And if an expert can help in that search, Miller is happy to oblige – depending on the facts. He says he has turned down people wanting to hire him “plenty of times,” telling them if he takes the stand, he’ll sink their case.
“I’m not going to take the case just because I want to do this,” he says. “I have to believe it. The only reason I do this is to uphold good journalistic standards.”
*Correction: This story initially stated that Bernier calls Quebec's standard "the rules of heart."