Commentary
Britain’s highest court recognizes “responsible journalism” as a defence to libel. Our courts should follow suit to protect solid journalism and the public interest. By Dean Jobb.

Minutes before deadline in a Canadian newsroom, a reporter and her editors huddle around a computer. On the screen is the final draft of a story accusing a restaurant inspector of taking bribes in return for ignoring food-safety violations.

Police confirm they are looking into the allegations but refuse to identify the inspector. Two unnamed city hall sources confirm his name and say he has been suspended. The mayor promises to take steps to ensure diners are not being served tainted food. The reporter has called the inspector’s office and home five times seeking comment, but to no avail. The editors decide to publish and the story, naming the inspector, runs on page one under the headline, “Bribe probe prompts health fears.”

The police do their work but no charges are laid and the inspector is reinstated. The allegations turn out to be false; public safety was never at risk. The inspector, his reputation sullied, sues the newspaper for libel.

As our law of defamation stands, the newspaper can do little to defend itself. Truth is a defence, of course, but the story is not true. News reports are poor candidates for the defence of fair comment (which is designed to protect opinions) and, in any event, a factual basis is required. A judge might conclude that the newspaper had a duty to alert the public about a potential health hazard; if so – and that’s a big “if” – the report could be considered privileged and the lawsuit dismissed.

But thanks to Britain’s top court, Canadian journalists may have a new weapon to ward off defamation suits, even when a story turns out to be false: the defence of “responsible journalism.”

The House of Lords created the defence eight years ago, in the case of Reynolds v Times Newspapers Ltd. It requires judges to assess the tone of an article, the reliability of its sources, the efforts made to interview those defamed and seven other factors to determine if a story was published in the public interest.

The Law Lords revisited the issue last fall in a ruling that offers further protection for the media. In Jameel v. Wall Street Journal Europe, they reminded lower courts that the “Reynolds privilege” is designed to liberalize the law and ensure important stories are brought to light

(both rulings are available online at http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm).

Not long after the September 2001 terror attacks in the United States, the Wall Street Journal reported that U.S. law enforcement agencies had asked Saudi Arabia’s national bank to monitor the accounts of the country’s leading businesses. The intention was to prevent the accounts from being used – perhaps without the businesses’ knowledge – to fund terrorism.

Abdul Latif Jameel Group, one of the businesses named in the report, and its president sued and a jury awarded damages of £40,000 – about $90,000 Cdn. The House of Lords, however, faulted the trial judge for setting up the Reynolds factors as “hurdles” for journalists to clear before being able to claim the defence.

A “respected, influential and unsensational newspaper,” as one Law Lord put it, had published a story on an issue “of undoubted public interest” – the fight against terrorism. The report was based on unnamed but highly placed U.S. and Saudi sources but, given the secrecy of the Saudis, could not be verified. A reporter phoned Jameel Group’s president but he was out of the country and unavailable to comment.

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The House of Lords saw no need to delay publication until the businessman could comment. They also felt it was proper to name Jameel Group and other businesses being monitored, as this gave the Journal’s article credibility.

What mattered most, the Lords said, was that the story dealt with an issue of public importance and the journalists acted professionally, tried to verify the information and contacted those involved for comment. To claim the defence, in the opinion of Lord Bingham, a journalist must have “taken steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication.”

Jameel is a major precedent, extending the concept of reasonable conduct at the heart of medical malpractice and other negligence lawsuits to the legal minefield of defamation. Journalists’ codes of ethics can be used to determine whether conduct constitutes responsible journalism, Lord Hope noted, providing “a standard which everyone in the media and elsewhere can recognize.”

The ruling is not binding on Canada’s courts but media lawyers here have begun citing Reynolds-based defences as part of their responses to defamation suits. The process may take time but our courts should import the responsible journalism defence. Solid journalism on important issues of public interest deserves a legal refuge.

Would such a defence help the newspaper that published the story on the restaurant inspector? Let’s apply the Reynolds factors:

n the bribery allegation was clearly a matter of public interest
n the sources were solid
n the reporter tried hard to verify her information
n the allegations had some substance and were under police investigation
n there was urgency in publishing – people’s health might be at risk
n efforts were made to interview the inspector (the House of Lords acknowledges, however, that seeking such comment may be “unnecessary, impractical, or obviously futile”)
n the story’s was not sensationalized and allegations were not reported as fact.

The Reynolds’s test considers the circumstances behind the story, including the timing of publication, which would seem to favour the newspaper. The story came up short on two fronts – it did not reflect the inspector’s side of the story, and the seriousness of the false allegation compounded the damage to his reputation.

With eight of ten Reynolds bases covered, the newspaper should be able to claim the defence of responsible journalism.

In Jameel, Baroness Hale declared that Britain needed more “serious journalism” of the kind practiced by the Wall Street Journal, “and our defamation law should encourage rather than discourage it.”

So should Canada’s.

Dean Jobb is an assistant professor at the University of King’s College School of Journalism in Halifax and author of Media Law for Canadian Journalists (Emond Montgomery Publications, 2006).