Tuesday, December 22, 2009

About Free Speech, Or 'Responsible Communication On Matters Of Public Interest.'

The mere whiff of a curtailment of free speech by the state or by the courts should be sufficient to cause a reasonable person to notice that his trigger finger is suddenly itchy, so I expect that many reasonable people will welcome today's news about the Supreme Court of Canada's ruling on libel law. The Ottawa Citizen and the Toronto Star should certainly be pleased, anyway.

But is it good news?

I'll put it this way. Say a newly-hired editor summons everyone to gather around the newsdesk for what you've been given to believe will be a harangue about his firm expectations and high standards in the matter of pursuing stories that may cast black clouds upon the standing of certain citizens in the community.

Instead, the editor says this: "Free, willing debate on matters of public interest is to be encouraged and must not be thwarted by overly solicitous regard for personal reputation." As he goes on with his soliloquy, the young and impressionable journalists taking it in scribble these words into their notebooks: Judge the story as a whole; consider whether it is in the public interest; if you report libelous and inaccurate allegations about somebody, it's okay, as long as you can say you exercised "due diligence" in trying to confirm the allegations.

The editor concludes with another fuzzy reference to "responsible communication on matters of public interest" and orders everyone back to work.

See? I haven't read the Court's entire decision yet, and wouldn't ask that you trust my forensic analysis of it anyway, because I'm not a lawyer. But what I know for certain is that I would not leave a newsroom meeting of that kind with the impression that the new editor had just uttered a stern admonition to his staff that he expected each and every one of them to cleave bravely to the highest principles of accuracy and fairness, no matter what they personally thought about the villains who happened to end up the subject of what the newspaper's editors had deemed to be "of public interest." I might rather shamble away muttering something to myself along the lines of, this new editor is going to drag this old newspaper into the gutter, just you watch.

The thing to remember about libel law is that contrary to popular assumption, it does not operate in some high-ideal forum governed solely by some grey woman wearing a kind of toga with a blindfold on, holding scales. In the operation of libel law, the constitutional principle that all of us are equal before the law does not hold much sway. Justice is not blind in libel cases. The first thing it demands to see are the contents your wallet. What happens after that largely depends on how much money there is in it.

The size of the purse doesn't just determine who wins or loses libel cases, but rather who gets to file libel complaints against the news media in the first place. Such circumstances tend to turn anything into a bit of a racket, with justice largely depending on whether one is rich or poor. If you think the reason that it's always well-heeled public figures who end up suing news organizations for libel is because, well, that's the kind of people journalists go after, because journalists, like, you know, it's their job to speak truth to power, man, then you're dreaming.

The first question a newspaper's libel lawyer asks when he's tasked to review the content of a story that a publisher would love to see emblazoned in 60-point headlines across the top of the front page is usually not, 'Is the story true?' It's more often, 'Can this guy afford to sue us?'

It would seem that with the Supreme Court's latest ruling, there are now a few more questions to which newspapers and television news shows and radio broadcasters might resort before asking themselves whether a story they want to print or broadcast is actually true or not. Among them: Aren't we being just a tiny bit "overly solicitous" about this guy's reputation? Judging "the story as a whole," do we quote the guy somewhere in the story denying the first few paragraphs that go on about him being a devil-cult child molester? Nevermind whether the facts are accurate - what can we say if a judge asks us to show that we exercised "due diligence" trying to check out these allegations?


Another thing to remember is that justice isn't particularly myopic about who gets to plead and argue about the way the law should intrude in these matters. You will notice that it was not some disinterested, publicly-spirited citizen but rather two major daily newspapers that managed to have their say in front of the Supreme Court judges in this case.

Good for the Citizen and the Star, by the way. But let's all straight away disabuse ourselves of the idea that the Supreme Court ruling will efficiently and certainly and directly serve the purposes of "responsible communication on matters of public interest" in this country.

I suspect it's just as likely that the ruling will lead us in the opposite direction.


Blogger jaycurrie said...

All good points Terry. However, what I suspect the SCC was doing here was bringing defamation law, particularly defamation law in Ontario, into the Charter era. (cf. Mair)

This decision has been signaled for some time. The Court, and particularly the Chief Justice has been struggling with the chilling effect of defamation law on the legitimate interests of the polity in free expression and a free media.

Accuracy is a vital journalistic value, but if a story is killed because "the guy has deep pockets" then the overarching value of free expression will be impaired. In essence, a private interest will trump a public one.

What the SCC has done is created a defence which balances the scales. Smart journalists will make sure they attempt to verify their stories and, most importantly, reach out to the "other side" for comment. Now, if that other side is unreachable or unwilling to comment, they will have discharged their responsibility and can get on with reporting the facts as they understand them. They may get some of those facts wrong or rely upon a source which gets them wrong; but so long as the story is about a matter of public interest they will be given a good deal of leeway in the event they are sued.

Were I your new editor I would have the SCC checklist printed up and stuck to your computer screen. And when you came to me with a story which had the potential to damage the private reputation of an individual, I would walk you through that checklist and nothing would run until I was satisfied you had done the required diligence.

Which is a Hell of a lot better than having to simply guess at the standard required.

1:31 PM  
Blogger Terry Glavin said...

"Accuracy is a vital journalistic value, but if a story is killed because "the guy has deep pockets" then the overarching value of free expression will be impaired. In essence, a private interest will trump a public one."

That's my point. I don't expect this ruling will change that, and in fact may make matters worse - i.e. more a matter of the depths of one's pockets.

I'll defer to you on the legal issues. But I fear I don't share your confidence in the way "smart journalists" will conduct themselves in light of this ruling.


1:36 PM  
Blogger Mark, Ottawa said...

Terry: "smart journalists". In Canada. The quotes speak, er, volumes.


1:42 PM  

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