Mon, 11/24/2014 - 02:38

Posted by Janice Neil on May 20, 2013

By Paul Benedetti, J-Source Editor-at-Large

The latest Mayor Rob Ford scandal reminds me of a teaching example I have used for several years now.

Each spring I teach new journalism students and one of our first lessons is about the real role of a reporter.

We discuss how the notion of “reporter as stenographer” or “reporter as blameless messenger” does not work. Many new students think it’s okay to write down and report whatever anyone tells them.

Their typical understanding of the job is something like: “They say it and I write it down.”

So, we talk about the classic libel case. I say, okay, let’s say you write a front-page story that says, in short, “The mayor is a drunk.”


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What happens?

Well, I tell them, saying someone “told you that” is no defense. Your story has certainly defamed the mayor by harming his reputation. Defamation in any kind of permanent record – a newspaper, radio, TV show or website – is termed libel.  The result in many cases?

A lawsuit.

And in that lawsuit, I tell the students, the burden of proof is on THEM. The reporter and the media outlet that published the story must prove their claims in a court of law.  It is up to publication to show that the mayor is indeed a drunk. And editors and reporters involved need evidence – solid evidence – that meets the burden of proof not in the court of public opinion, but in a court of law.

In court, the mayor, can and usually does, say nothing. He doesn’t have to prove anything. You do.

Now, the good news is that in Canadian libel cases, truth is a defense. So, if you can show that the claim you have made is true or that you reasonably believed it was true and that you used reliable sources, tried to get the other side of the story, and felt it was urgent, serious and of public importance, you’ll likely win.

Enter Rob Ford and the Toronto Star.

This week the Star broke (along with Gawker) a bombshell of a story - that two of their reporters had watched a video of Rob Ford smoking crack cocaine. (Don’t worry about the fudging in the story, you know, all the  “a man who APPEARS to be Rob Ford was APPARENTLY smoking what was ALLEGEDLY crack cocaine.” Those “weasel  words” won’t save anyone and the Star knows it, Rob Ford knows it and the public knows it.) The lawyers, who probably suggested the mitigating words, also know it.

The upshot is simple: the Toronto Star has said in print that Rob Ford has smoked crack. 

This comes fast on the heals of an earlier Star story that Rob Ford was visibly intoxicated at a high-profile gala only a few months before. 

That story quoted on-the-record and off-the-record sources saying the mayor was at a function and was clearly “intoxicated” on something – booze or perhaps drugs, and was asked to leave. It also reported that “it’s an open secret at city hall that the mayor has battled alcohol abuse.” So, once, again, the situation is clear. The Toronto Star has potentially libeled the mayor and they have put themselves in a position where it has to,  if challenged,  PROVE the claims.

So, what happens?

Well, I tell the students, if you were not drunk and you have not smoked crack cocaine, your ship has come in. You hire a good libel lawyer - and Toronto has some excellent ones - and you take the Toronto Star to the cleaners. If you are not a drunk and do not smoke crack, the newspaper is going to have a very hard time proving you are and you do, under the harsh and demanding light of a court of law. 

Look at the list of libel payouts in Canada and you know that at least some people have sued media outlets over stories and won. There’s the famous 1981 case of Liberal Cabinet Minister John Munro challenging the Toronto Sun’s story about his alleged financial wrongdoings – and winning. He got an apology and the then substantial payout of $75,000. Even more damaging was the libel case brought against a 1996 episode of the CBC TV’s news magazine fifth estate by two physicians who had been painted as bad guys with inappropriate ties to the pharmaceutical industry. The CBC lost in two separate cases and lost big - in all well over $1 million in damages. 

In the Ford case at the very least, the mayor, if vindicated, would get a handsome settlement and an abject apology, a dream come true for a politician who is constantly invoking the spectre of a conspiratorial smear campaign orchestrated by anti-Ford activists and executed by the Toronto Star and other “left-wing media.”

Even better would be a high-profile, public court case in which he is vindicated and the Star and its supporters are punished by the courts. But, did the Mayor file a lawsuit against the Star after the drinking story? No.

And will the mayor now sue the the Star for defamation after the crack cocaine story? Well, there’s the question. No amount of bluster, no calling the accusations “ridiculous,” no talk-radio-show denials or counter attacks from his pit-bull-like defender and brother Doug Ford, will answer this accusation.

Either the Mayor smoked crack and the Star is right. Or the mayor did not smoke crack and the Star is going to eat crow and pay out big. Like the story, it’s black and white.

The Star has made its move and made its claim. It has put itself and its reputation as Canada’s largest newspaper way, way out there. Now, it’s up to Mayor Rob Ford. Call, raise or fold.

We’re on the verge of one of the biggest showdowns in recent Canadian journalism history. 

And J-students everywhere are getting a lesson in the value of watch-dog journalism, the issue of libel and the role and responsibility of a free press in a democracy.

I can hardly wait.

Comments

This is very interesting. But perhaps you've overstated the case. Truth is indeed a defense against libel. But so is warrant. A claim could turn out to be false, but as long as the defendent can show that the claim was warranted and was in the public interest then truth is not required. You do actually say this, early on in the essay, but then you turn the issue into a "black and white" one and the point is lost, which is too bad. 

A claim need not be true to successfully defend against a charge of libel. Am I wrong?

Hi Sherwin,

No you are absolutely correct.

 In two important cases before the Supreme Court in  2009 (Grant v. Torstar & Quan v. Cusson) the Court broaden libel defence for reporters.  It also broadened the definition of just who can be considered a journalist, but that is another matter.  The upshot of those decisions is as you state, a claim by a journalist need not be true to be successfully defended against a charge of libel. 

For more on this, please see the Law Section of J Source, in particular the article "So Why Hasn't Rob Ford Filed a Libel Suit?"

Thomas Rose

 

Thank you, Thomas, I'll check it out.

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