The Journalism Doctor

It's been 30 months since the Supreme Court reformed Canada's libel laws, allowing the "public interest responsible communication" defence.

Has that much really changed?

At the time it was hailed as a victory for freedom of expression and of the press. Journalists worried about libel chill celebrated it. But has the "responsible communication" defence actually served to protect media accused of defamation, or has it backfired and proved to be a weapon for plaintiffs?

In Grant v. Torstar and Quan v. Cusson, the court shifted the focus of defamation litigation away from the truth of the publication and placed it squarely on the process reporters and editors go through to produce a story. Was it in the public interest? Did the journalists act responsibly?

The ruling was widely expected to lead to courtroom tussles over what constitutes "responsible" reporting, perhaps involving independent experts retained by either side. Has that actually happened?

The short answer is that it's too soon to say. Most defamation claims are complicated and take a long time to work their way through to trial -- often as long as six years. Many others are settled before trial, and we never hear about them.

But there's enough evidence -- from the few court rulings we know about, and from my own experience as an expert witness acting for both media and plaintiffs --to challenge several popular myths, and we should keep them in mind as we move forward.

Myth #1. Journalists are their own best advocates.

Yes, the best journalists can justify what they do very well. But libel cases do not always involve the best journalists. In two recent cases where I have offered opinions to plaintiffs, the journalists involved have claimed in sworn documents that:

(a) Editors are too busy to actually read and verify what they put into the paper;

(b) It's okay to repeat damaging and anonymous allegations again and again, even after the person in question has been cleared by police and sworn under oath that there was no truth to them;

(c) It's responsible to ignore the other side of the story for weeks after being told -- once by his secretary on the phone -- that the subject of defamatory allegations was unavailable that day.

Those journalists would have a hard time convincing any court that they acted responsibly.

Most of the times I act for plaintiffs I am able to determine that reporters made little or no effort to get the other side of the story, even though the obligation to do so figures prominently in every code of ethical practice that journalists are supposed to abide by. They either were not aware of those standards, or chose to ignore them.

Even in cases where journalists do act responsibly, judges often try to cast doubt on whether they are really acting in the public interest. Aren't they in the business of attracting readers and maximizing profits for their employers? Experts who are seen as objective and independent can go a long way to assuage those doubts, and I have gladly done so when I offer evidence on behalf of responsible media clients.

Myth #2. Experts are unnecessary. Judges do not want to hear their testimony. They feel able to decide themselves.

That has not been my experience. Any time my credentials as an expert on journalism have been presented to a judge, they have been accepted and I have given testimony. Each time, my evidence was cited favourably by the judge in delivering the verdict. Most courts agree with former Supreme Court Justice Brian Dickson in Regina v. Abbey (1982): "An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate."

Judges are experts at deciding what is reasonable and what is lawful. They are not experts at deciding what is good journalism and may not be aware of its commonly recognized standards, such as fairness, use of anonymous sources, and methods of verification. They are not necessarily going to get them from a media defendant arguing a weak case.

Expert evidence can be instrumental in getting favourable settlements before any trial occurs. This happens more often than not with mine.

Myth #3. Experts tend to be just hired guns, doing their clients' bidding rather than acting objectively.

The ethical and legal responsibilities of expert witnesses are spelled out in Ontario's Rules of Civil Procedure, which require us to swear we will deliver testimony that is "fair, objective and non-partisan."

I once was retained by a media client after its lawyers received a damning opinion written by an expert acting for the other side in a multi-million-dollar libel suit. Upon reading the story in question, the legal submissions and the transcripts of the examinations, I determined that the story had been reported responsibly when measured against commonly recognized standards. I was baffled by how the other expert had determined otherwise. Unfortunately for him, he had written separately about the same topics and reached wildly different conclusions. I pointed those out in my opinion, effectively discrediting his testimony. The case was settled quietly out of court. That expert, I believe, compromised his own principles in order to help a client.

My interest is in defending good journalism, and exposing the shoddy variety. I have turned down several clients, both plaintiffs and media, if I didn't feel the case would achieve that, or if I could not offer an objective and independent opinion. The ethics of delivering expert testimony are explored in an interesting academic paper written by Sandra Troster, a student in U of T's investigative and forensic accounting program. Titled Court Critique of Expert Witness Testimony (2005), it examines reasons given by 10 judges in rejecting testimony offered by expert witness accountants. It is sober and instructive reading.

"Adverse judgments," the paper asserts, "can damage or end an expert's career." If you are thinking of retaining an expert witness, ask for references. How many times has that person's opinion failed to help a client?

There are almost certainly bad expert witnesses testifying in defamation actions, just as I'm told there are bad lawyers. The key is to choose an expert who is experienced in court, who has appropriate qualifications (including frontline newsroom experience), who has a reputation for objectivity and independence, a good methodology and no conflict of interest.

Myth #4. The "responsible communication" defence gives journalists the right to be wrong.

Not true. The Supreme Court set up several hurdles to help courts determine what is "responsible" journalism, and it set them high. Sloppy journalism cannot meet the test. Journalist and legal expert Dean Jobb in 2009 analyzed three cases that had involved the "responsible communication" defence (the media lost two of them). He concluded the following:

"What are the lessons for journalists tackling stories that could attract a libel suit? Stick to the facts and avoid trumped-up words and descriptions. Report that unproven allegations are just that – unproven. Be fair and present all sides of the story. Make every effort to contact the target of an allegation and keep a record of each attempt. That’s the kind of advice you can get from any textbook on journalism ethics. And it’s clearly the level of professionalism the courts expect of a responsible journalist."