How the Grant v. Torstar ruling informs editors’ decisions to publish.

This is part one of a three-part series prepared by Canadian media lawyers Thea Hoogstraten and Matthew Pearn (@PearnMatthew) exploring how the defence of “responsible communication” is changing the way decisions are made by journalists and editors in newsrooms across the country.
-Thomas Rose, Law Editor

By Thea Hoogstraten and Matthew Pearn

Shortly after joining the Toronto Star to break the Jian Ghomeshi scandal, independent journalist Jesse Brown criticized media across Canada for sitting on controversial stories longer than necessary. During an interview with Toronto Life, Brown stated:

“The press culture is really timid and likes to lean on that idea that we have these really restrictive defamation laws. But thanks to the Toronto Star, we have Grant v. Torstar, which introduced a ‘responsible communication’ defence. But nobody fuckin’ uses it.”

Grant v. Torstar is, of course, the ground-breaking decision from the Supreme Court of Canada that provided a new shield against defamation claims.

Celebrating its fifth anniversary this year, Grant v. Torstar has generally been a boon for Canadian media. It has offered journalists protection from defamation claims so long as publishers hold back from unleashing incendiary allegations until meeting certain standards. These include an obligatory call for a response from the target of the allegation and careful evaluation of the trustworthiness of the story’s source(s).

Grant v. Torstar has given media players, including the Star, a rule book to follow when breaking controversial stories, like the Rob Ford crack video story and, arguably, the Ghomeshi assault story.

Brown’s lament raises the question of whether the Star should have had the confidence to publish the Ghomeshi revelations earlier, especially in a postGrant v. Torstar era.

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The defence of “responsible communication” requires that publishing the allegations be in the public interest. In addition to carefully considering the trustworthiness of the source, the publisher must also show that the person against whom the allegations are made has been given a chance to respond and that author of the article was diligent in trying to verify the allegations independent of her sources. 

A major hurdle for Brown was that his sources reportedly insisted on remaining anonymous. This made it difficult to test the reliability of these serious allegations, especially when there was no evidence that the sources had made complaints to police and no investigations or charges were pending.

Meanwhile, Ghomeshi denied the allegations and threatened civil action if the Star proceeded to publish. Finally, there was a reasonable question as to whether there was an urgent need to publish. Despite Brown’s confidence, the Star properly considered Grant v. Torstar and must have decided the story needed either urgency or corroboration from Ghomeshi before breaking it.

On Sunday, Oct. 26, 2014, Ghomeshi himself gave the Star and Brown what they needed to publish when he posted his ill-fated Facebook message, outlining allegations made against him, after CBC Radio announced that Ghomeshi would no longer host Q.        

This gave Brown and the Star the proper conditions to publish more detailed allegations from anonymous sources. By providing his side of the story publicly, Ghomeshi also confirmed he had engaged in “rough sex” with women and had personal knowledge of a complaint made against him by at least one former sexual partner. Finally armed with a satisfactory public response to the allegations Brown had collected, the Star was then able to act responsibly by providing the public with detailed complaints from these anonymous sources.

In this case then, it is safe to say that the Star appreciated the limits of the defence of “responsible communication” and understood that they had to hold off until the moment was right. That’s a hard decision for any media organization to reach, and perhaps even harder for smaller media players (like Brown himself) who want to get stories out first and build recognition for their brand.

While Brown suggests that the media are often too timid, here, the responsible communication defence required the Star to be cautious before rushing to publication. Among other things, before publishing, editors need to think about the harm an allegation will do, whether the story is truly urgent and whether there is a pressing public interest.

Looking in the rear-view mirror, one can see how the Ghomeshi allegations spawned considerable public discussion about sexual violence and violence against women, and how his alleged behaviour may have raised a public safety question for other possible future victims. Still, the Star got it right and waited for more, and Grant v. Torstar served as the right guide.

To publish or not to publish, that is the question! More in our next installment on how Grant v. Torstar has been treated by the courts and how this is changing editorial thought on controversial stories.

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[[{“fid”:”3493″,”view_mode”:”default”,”fields”:{“format”:”default”,”field_file_image_alt_text[und][0][value]”:””,”field_file_image_title_text[und][0][value]”:””},”type”:”media”,”link_text”:null,”attributes”:{“height”:”500″,”width”:”458″,”style”:”width: 92px; height: 100px; float: left; margin-left: 12px; margin-right: 12px;”,”class”:”media-element file-default”}}]]Matthew Pearn is a media lawyer and civil litigator working in Fredericton at Foster & Company. He is also a former journalist, having worked for CBC Radio and Brunswick News. For more thoughts on media law, you can follow Matthew on Twitter at @PearnMatthew.