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Libel law: its effect on the media by Dan Gottlieb
What is the relationship between libel law and investigative journalism? Is it true, as some literature suggests, that publishing has been constrained because of fear among journalists caused by certain recent legal cases? These questions formed the basis of a study, conducted in the spring of 1983, that was intended to help analyze the effects of libel law on the media. The 1981 cases of Munro v. The Toronto Sun and Vogel v. C.B.C. have most authorities on the law of defamation agreeing that major changes are taking place which deal directly with the issue of the liability of published material. These changes place a heavier burden on reporters and editors than has previously been the case. The Vogel and Munro judgements have set out four practical standards to be followed by the media:
Because these cases received such wide exposure in the media, it was assumed journalists had become more conscious of the law, as well as increasingly afraid of taking risks for fear of the law. To test this proposition I constructed a survey in consultation with Professor Robert Martin of the University of Western Ontario Faculty of Law in London. The survey was designed to demonstrate journalists' knowledge of libel law and the impact that knowledge has on their working routine. Out of a total of 195 newspapers, television and radio stations polled across Canada, 49 (25%) responded. In addition, I conducted 25 interviews throughout southwestern Ontario with reporters, editors and lawyers who provided their impressions and reactions to the recent case-law on libel. The results were surprising. They did not support the suggestion found in preliminary readings that libel law constrains freedom of speech. It appeared that journalists had either completely ignored, or altogether failed to comprehend the implications of new libel cases. They are, of course, not legal experts and cannot be expected to know the details of all the cases on libel law which occur in any year. But as professionals in an industry powerful enough to chew up a respectable reputation and spit it out for scandal, they should be aware of the changing limits of their powers. The survey and interviews showed an extremely high awareness among journalists of the major cases in which changes had taken place (Vogel v. C.B.C., Munro v. The Toronto Sun, Holt. v. The Vancouver Sun, etc.). Most journalists did know the nuts and bolts basics of libel law but were unaware of or unconcerned with ramifications of the recent cases. A typical response to questions on Vogel v. C.B.C. was a terse "That could never happen here because we've always practiced journalism this way . . ." But what I was asking was how the application of principles in the judgement affected them, not whether they practiced journalism as the C.B.C. did in Vogel. Journalists indicated that the Vogel and Munro cases, based on blunders, did not really change things since in their view, the existing law already covered such violations of journalistic standards. The law now offers protection to the subject of a report from a mere oversight (Thomas v. C.B.C.), a misinterpretation of inferences to be drawn from documents (Baxter v. C.B.C.), confusion between fact and comment (Holt v. Sun Publishing), or an editor who fails to check the reliability of a reporter's sources (Munro v. The Toronto Sun). In the 1958 case of Silkin v. Beaverbrook Newspapers Ltd., His Honour Judge Diplock said: "The right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements." That it has been "whittled down" is apparent from a comparison of the cases of York v. Okanagan Broadcasters Ltd. (1976), and Baxter v. C.B.C. (1979). Without going through the detailed facts of each case, the critical distinction was that in the York case, the defence of justification (truthfulness of the facts asserted) succeeded on the basis that the evidence presented in court by the defendant was taken as making it reasonably probable (i.e. on the balance of probabilities) that the plaintiff was responsible for the acts alleged. The Baxter case, on the other hand, refused to allow this test to apply to an investigative report. The report alleged that the then Minister of Justice, John Baxter, had stopped an investigation into political kickbacks by the police and RCMP. The C.B.C. presented the notes of two different officers which strongly implied that Baxter did order the investigation dropped. They did not say so specifically, but said, "he (Baxter) feels we should not inquire into this field . . . we are not going to investigate that angle." It is difficult to conclude anything else other than that Baxter ordered the investigation stopped, given the fact that that is what happened immediately after the meeting. And it is at least likely, on a balance of probability, that the officer had understood Baxter's "feelings" as an order. But the C.B.C. was not entitled to make such an inference. It had the onus of proving the truth of the alleged fact, and although it was not stated as such, the standard by which "truth" would be measured in court was beyond a reasonable doubt. There could be no room for reasonable inferences on the part of the investigative journalist. The trend towards "literal truth" is apparent and the standard imposed is very high, far higher than in the York case. From these and other similar cases I concluded that greater skill and care are now demanded of investigative reporters and editors than has hitherto been the case. What good journalists must do to ensure a successful defence is lead the public to a conclusion without making libellous assertions. They must allow the public to make reasonable inferences so that the same message gets across, but without placing the journalist in the unenviable position of having to prove the inferences true in a libel action. Facts that can be proven to be true should be presented in a way that infers the conclusions the writer wishes the readers to reach. If a journalist is adamant about making an inference based on true facts, he should tell the reader/viewer/listener that he is making his own inference. This way, he ensures that it is his "honest belief" (the test in the 'fair comment' defence) and also prevents any confusion over whether he is making statements of fact or opinion. This is a distinction crucial in law which can lead the journalist to defeat in a libel action. (The Holt case is the classic example). In a 1972 article in Content magazine, Kelly Holmes criticized the imposition of tough standards on journalists by saying, "telling journalists to watch their language is like telling Fred Astaire to watch his step." The metaphor is a good one for precisely the opposite reasons to those put forth by Kelly Holmes. Fred Astaire did watch his step and thereby developed into a great dancer. His elegant dancing became routine. To develop true journalistic acumen, the media must make a conscious effort to maintain the high legal standards that have been set until those standards become a subconscious part of their routine, and they truly know their art. In the Holt case an ambiguously worded editorial in The Vancouver Sun had the same disastrous effect as the apparently reasonable inference in Baxter. It looked safe, but it wasn't. The editorial read as follows:
The facts were that Simma Holt had announced an intention to interview Charles Manson which was also published in a news article in the Sun. She had been given a message to carry to Manson by Lynette (Squeaky) Fromm. Justice Aikens took the editorial to be a statement of fact, that Simma Holt had carried the message to Charles Manson, when actually, the paper knew she hadn't. The judgement is open to criticism on the grounds that saying someone should not deliver a message does not necessarily imply that that person has done so. The writer of the editorial ought to have chosen his or her words more carefully, so as to have conveyed the intended meaning. He or she ought to have stated the true facts and then commented on them. For example:
Unfortunately, nothing in the survey I conducted indicated that editors or reporters realized the standard of care demanded of them by these recent cases. Far from restricting investigative reporting, they have merely had the general effect of alerting journalists to higher damages awards and other matters tangential to the true messages in the cases. One other interesting point was the discrepancy between the perceptions of editors and reporters. For instance, one question in the survey asked whether reporters were required to disclose the identity of sources to editors. Most editors responded "yes", while all reporters responded "no", including six reporters on three large dailies whose editors replied "yes" (the London Free Press, The Globe and Mail in Toronto and The Spectator in Hamilton). Perhaps editors would like to think disclosure of sources is the rule, but clearly the practice is different. I am inclined to take the word of the reporters in this case, because they have no vested interest to protect. Editors who say "no" might think it means they're not doing their job. True or not, this could naturally tend to colour their responses. Most editors felt the number of sources was a matter for them to decide, whereas the majority of reporters said it had nothing to do with company policy, but reflected their own personal preferences in each case. Rarely did recent changes in the law concretely affect journalistic practice, despite their direct applicability. Journalists are years behind the times in what they think they can and cannot do. There are no general safeguards to prevent libel in journalism beyond those that existed prior to the Vogel and Munro cases. Investigative reporting will go on in much the same way as before, and there exist no real reasons why similar cases could not happen again.
Dan Gottlieb is a third year law student at the University of
Western Ontario in London. He gratefully acknowledges the assistance
of Professor Robert Martin, Daphne Gottlieb, and all those reporters
and editors who took the time to respond to the survey or allow
interviews. Published in Sources Winter 83/84
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