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Libel law and the freelance writer

What makes investigative journalism enticing is also what makes it legally dangerous to produce—particularly for freelance journalists without libel protection. [[{“fid”:”3985″,”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”:”600″,”width”:”766″,”style”:”width: 300px; height: 235px; margin-left: 10px; margin-right: 10px; float: right;”,”class”:”media-element file-default”}}]] By Shannon Clarke  Laura Robinson didn’t go looking for the John Furlong story. In 2009, the Ontario-based journalist was at a First Nations community…

What makes investigative journalism enticing is also what makes it legally dangerous to produce—particularly for freelance journalists without libel protection.

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By Shannon Clarke 

Laura Robinson didn’t go looking for the John Furlong story. In 2009, the Ontario-based journalist was at a First Nations community event in British Columbia when a man suggested she look into Furlong’s past, particularly the years he’d spent teaching physical education in northern British Columbia in the late ’60s and early ’70s. 

The Georgia Straight, an alternative weekly in Vancouver, published her investigation in September 2012. In it, the former chief executive of the Vancouver Organizing Committee for the 2010 Winter Olympics was accused of physically and verbally abusing eight First Nations children at Immaculata Elementary School in Burns Lake, B.C. Furlong immediately denounced the story as reckless and “inaccurate” and in November 2012 sued Robinson and the paper for libel.  

Two years later, Robinson countersued for defamation. Neither the allegations against Furlong nor Robinson have been proven in court. In the time since, two of three individual civil lawsuits launched against Furlong have been dropped or dismissed, and a 2013 RCMP investigation into one set of these allegations resulted in no criminal charges.

Looking back, Robinson said it was a surprise when the Georgia Straight told her a few months before publication that she wasn’t covered by the publication’s insurance—she had assumed all freelancers were included. She decided to go ahead with story, backed by notes, research and emails. Robinson and her lawyers have accumulated more than 7,000 pages from more than 1,500 documents and pages of meticulously kept day planners from her time reporting. 

“I knew: It’s John Furlong. He walks on water in Vancouver, in B.C.,” Robinson recalled in a recent interview. “I’m going to be as diligent and as thorough as I possibly could be.”

Many journalists’ careers are defined by investigative pieces and the stories that, after months or years of digging, gain national attention. But freelancers such as Robinson also risk long-lasting financial consequences should they find themselves on the receiving end of legal action without the backing of a news outlet or professional liability insurance to cover the cost of defending their story in court. 

Paul Schabas, a partner at Blake, Cassels & Graydon LLP in Toronto said journalists going it alone have been rare, but the media landscape is changing. There are more ways to research, broadcast and share a story. Stories live longer online—including through comment sections and re-blogging features—increasing the harm to individuals who believe they have been defamed. A poorly worded email or careless tweet while reporting can be grounds for a lawsuit or used as evidence of malice, and the law makes no distinction between a professional journalist and a private citizen.  


Taking freelancers to court is not a sound strategy for anyone looking for a big payout, said Schabas, who has handled many defamation suits in his 25-year career. It’s usually intended to shut reporters up.  

“The plaintiff should sue the paper because that’s where they’re going to get what they’re looking for: money or an apology or both. They might get neither from a freelancer.”  

Like Robinson, Jesse Brown was threatened with litigation as he pursued his investigation into Jian Ghomeshi. In January, Brown spoke about the investigation and his work at an event hosted by Ryerson University, and said a lawsuit would have been “personally ruinous” had he published the story on Canadaland, so he took it to the Toronto Star. There were threats, but no lawsuits. Along with Star reporters Kevin Donovan, Emily Mathieu, Randy Risling and Jayme Poisson, Brown was awarded the Canadian Hillman Prize in Journalism for his work earlier this month. 

Brown is critical of media company policies that exclude freelancers from libel protection. “You’re going through an editorial process, they’re looking at the work, they’re giving their stamp of approval on it, and I think they have to stand behind it.”  

Freelancers can buy liability insurance to offset their risks. Can-Sure Underwriting Ltd.s offers premiums for media professionals ranging from $300 to $1 million annually for coverage of up to $10 million in lawyers’ fees and, to a lesser extent, damages. Practice leader Brad Greening said policies are available to freelancers as well as major media corporations, though numbers on exactly how many independent journalists Can-Sure covers weren’t available.  

“It’s peace-of-mind insurance,” Greening said. “Unfortunately, clients will get sued for things that they may not have necessarily seen coming.” 

The legal process is costly even if the reporting is solid—and more so if the case makes it to court and drags on for more than a couple of days: “It’s hard to imagine doing a libel trial for less than $25,000 or $30,000 and they can go into the millions if they’re a huge trial,” Schabas said, citing the recent case in which the National Post was ordered to pay $50,000 to environmentalist and politician Andrew Weaver over stories written in 2009 and 2010. The Post has filed a notice to appeal. 

So far, Robinson said she has spent at least $250,000 on legal fees and travel from Ontario to northern B.C. She’s raised money for her countersuit through fundraisers and receives donations via an online fund. But there is still a $65,000 bill to pay before her court date on June 15, which will require another trip to British Columbia. This also includes the costs of fighting Furlong’s libel case against her, which has been stagnant for more than two years. 

Organizations representing the interests of freelance journalists can provide little more than advice if members are caught up in litigation. The Canadian Freelance Union offers resources for negotiating pay, press passes to vouch for an individual’s professional status and health benefits that extend to family. However, should someone need legal protection, said president Daniel Marchand, there is “very little” the CFU can do but offer support and point journalists to lawyers. 

Schabas said it is in a publication’s best interest to protect their freelancers and in a writer’s best interest to negotiate, if possible, for coverage. A libel suit against a news organization involves not just the reporter, he pointed out, but the editors and publishers as well. 

The protection of a publication makes an undoubtedly stressful situation more bearable. Thinking about it now, Katherine Laidlaw said the day she got the papers notifying her that York University had filed a libel suit against her was exactly like a scene from a courtroom drama. She was an associate editor for Reader’s Digest, in Montreal, in 2013, when she got a call to meet someone in reception. “I came down thinking it was a friend or something,” she said. Instead, a stranger handed her an envelope outlining York University’s claims against her over “Fortress of York,” a feature she’d written for Toronto Life on the school’s handling of sexual assault cases. 

She wasn’t completely floored. Her editor at the time, Mark Pupo, had called that week to say that the magazine had been served. Her contract had also made it clear that she was completely protected by Toronto Life’s insurance. After receiving the libel notice, she was told to do and say nothing; the magazine was handling it. 

The university eventually withdrew legal action against the magazine and Toronto Life ran a clarification in its February issue. Though she didn’t feel she’d been unfair or sloppy in her reporting, Laidlaw counts herself lucky. “I think if a story fell into my lap and it was important enough, then I would pursue it,” she said. “But I would try like hell to get a publication to back me before getting in too deep.” 

[[{“fid”:”3806″,”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”:”826″,”width”:”826″,”style”:”width: 100px; height: 100px; margin-left: 10px; margin-right: 10px; float: left;”,”class”:”media-element file-default”}}]]Shannon Clarke is a fourth-year journalism student at Ryerson University and features editor of Shameless magazine in Toronto.

Illustration photo by Pawel Loj, via Flickr.

Correction: This article has been edited to clarify that the amount Laura Robinson has spent on legal and travel costs since publication of her stories includes legal costs for the libel suit against her.