Malice, and its absence: the issue of ulterior motives


Unlike the other defences to libel, such as fair comment and qualified privilege, the defence of responsible communication on matters of public interest is not merely "defeated" by evidence of malice; rather, as the Grant v. Torstar Corp. judgment makes clear, malice is incompatible with the defence. As Chief Justice Beverley McLachlin wrote, "it makes little sense to speak of an assertion of responsible journalism being defeated by proof of malice, because the absence of malice is effectively built into the definition of responsible journalism itself." The defence of responsible communication eliminates the need for a separate inquiry into malice, because a defendant motivated by malice “has by definition not acted responsibly” (Grant v. Torstar para. 92, 125).

The Legal Element: Malice Defined


In Canadian Libel and Slander Actions, lawyers Roger D. McConchie and David A. Potts write that a defendant is actuated by express malice, also referred to as actual malice and malice in fact, if he or she publishes “defamatory expression”:

i.) knowing it is false; or
ii.) with reckless indifference whether it is true or false; or
iii.) for the dominant purpose of injuring the plaintiff because of spite or animosity; or
iv.) for some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose not related to the occasion.
(McConchie and Potts 299)

Bert Bruser, a Toronto-based media lawyer, says that “one concept of malice is direct personal interest and the other concept of malice is recklessness”. Referencing the latter category of malice, malice as recklessness, he says that this form of malice has a cumulative effect. For instance, when a reporter is covering a trial and doesn’t speak to the person they are writing about and doesn’t look at an important document or speak to another individual who is crucial to the case, and so on, the negligence and recklessness add up. The other form of malice, malice as direct personal interest, is far more difficult to overcome. “Personal interests can destroy your story and make the story unfair and inaccurate,” he says. To illustrate, Bruser gives the example of a restaurant reviewer who goes to a restaurant where the chef has slept with his or her husband or wife; if the reviewer then writes a negative piece to destroy that chef, that’s malice, Bruser says. Bruser says in such a situation, putting personal interests aside “would be almost impossible.” If the reviewer had disclosed the facts behind the acid review, making it clear that he or she hated the chef because she or he had slept with his or her husband or wife, the situation would be different. However, Bruser admits that such a disclosure, whether within the review itself or in an article accompanying the piece, “wouldn’t happen in the mainstream media” (Bruser).

Professional Code of Ethics for Journalists: Diligence and the Absence of Malice


Professional codes of ethics for journalism organizations in North America clearly stress the importance of journalists being diligent and making the effort to produce a fair and unprejudiced story. For example, in section five of the Society of Professional Journalists (SPJ) code of ethics, entitled “Accuracy and Objectivity,” it is explicitly stated that there is “no excuse for inaccuracies or lack of thoroughness” and that “news reports should be free of opinion or bias and represent all sides of an issue.” In section three, “Ethics,” it is emphasized that “journalists must be free of obligation to any interest other than the public’s right to know the truth.” The Associated Press Managing Editors “Statement of Ethical Principles” notes that “the newspaper should guard against inaccuracies, carelessness, bias or distortion through either emphasis or omission. It should admit all substantive errors and correct them promptly and prominently” (Goodwin and Smith 42-43, 46). Under the “truthfulness” section in the Canadian Association of Journalists’ investigative journalism statement of principles and ethics guidelines, both the personal interest element and the recklessness component of malice are addressed:

“Our primary duty is to seek and report the truth as completely and independently as possible. We will make every effort to ensure the accuracy of our reports. We will act as an independent voice for the public at large. We will not be intimidated by power or influenced by special interests, advertisers or news sources. We will not allow the independence of our journalism to be compromised by conflicts of interest. We will use confidential sources who are in a position to know and whose evidence is verified by other independent sources. We will be wary of sources who may be motivated by malice or bias.” (The Canadian Association of Journalists 1).

Objectivity: An Elusive but Noble Journalistic Ideal


A key journalistic ideal that underlines these ethical tenets is objectivity (a concept that is addressed more fully elsewhere in this wiki). In Morals and the Media: Ethics in Canadian Journalism, author Nick Russell says that objectivity is closely associated with truth. He also notes that a journalist should avoid trying to play the role of advocate. Even though it may be tempting for a reporter to conclude that a particular politician, for example, is “incompetent” and to declare “I’m going to get him,” that is not a good idea, because, for one, the journalist loses his or her “objective credibility”. Says Russell: “What may seem to the writer to be helpful insight may in reality be a crusade, vindictiveness, or an individual personality clash”. Before embarks on a “crusade to ‘get’ someone,” they should consider the “why?” of being objective and ask themselves such questions as, “does every event need analysis? Is every story interpretative or is this role reserved-as now- for the major stories?” He says the answers to “why?” must be overwhelmingly convincing to offset the loss of objectivity. Russell believes that journalism by its very nature is subjective and so, objectivity is impossible. However, he says that “every reporter should make every effort to objective-to be fair, full and accurate-nonetheless”(Russell 29 and 31).

David Swick, an instructor of journalism ethics at the University of King’s College in Halifax, would agree. Swick believes it is absolutely possible for journalists to put their personal interests aside and to be objective. He gives the example of how a colleague of his was assigned to cover an anti-abortion rally. Even though this colleague is adamantly pro-choice, she was still able to produce an objective piece about the event, not letting her personal considerations influence the story (Swick).

Gary Schwitzer, a former Poynter Institute Ethics Fellow and publisher of the HealthNewsReview and blog, says it is important to put personal interests aside when covering a story, because those interests may have a powerful biasing influence, which may distort the balance of the story. “My interests, through my eyes,” he says “may not be representative in any way of the needs or issues or interests of any significant number of readers, listeners or viewers.” Schwitzer, in his “Statement of Principles of the Association of Health Care Journalists,” states that journalists should be aware of potential conflicts of interest before undertaking a story. The principles refer specifically to Schwitzer’s area of expertise, which is health journalism, but the questions raised about personal considerations can be applied to all areas of journalism. Questions that are raised in this “Statement of Principles” include: Were you a patient at a particular hospital? Do you have a relative with a specific disease that could unduly influence your handling of a story? Does this insurance company cover employees in your newsroom? According to these guidelines, “it is the journalist’s responsibility to recognize these conflicts and prevent them from influencing stories or story choices.” If journalists can’t put personal considerations aside on a story, then they should let their editors know, so that another reporter can proceed with it instead (Schwitzer and Association of Health Care Journalists/About-bylaws and Principles).

The Presence of Malice: Two Examples


The following two legal cases illustrate what can happen when personal considerations take precedence over journalistic independence.

Hayer v. Charhdi Kala Punjabi Newspaper Society


In June 1996, a judge of the British Columbia Supreme Court awarded damages amounting to $145, 000 for numerous articles published from 1991 to 1994 in Chardi Kala, a Vancouver-based, Punjabi newspaper. The judge found that these articles defamed Tara Singh Hayer, publisher of the paper the Indo-Canadian Times and Hayer’s three daughters (Ad IDEM Canadian Media Lawyers Association, Defamation Verdicts-July 1995 to December 1998). The judge ruled that the defendants could not use the plea of fair comment or qualified privilege in their defence, because the main motive for publishing these articles was malice towards the plaintiff, Mr. Hayer.

Two particularly contentious articles entitled “Punjabi Journalist’s Daughter Creates Tumult on Wreck Beach” and “When a Journalist’s Daughter Got Drunk,” were published in the June 6, 1991 and July 23, 1992 issues of Charhdi Kala respectively. The first article insinuates that Hayer’s daughter, Mrs.Rupinder Kaur Bains was having an affair and the second article implies that she was drunk in the “Punjabi Market” in Surrey and got into a public fight with her husband.

The judge ruled that these two articles had a “devastating effect on Mrs. Bains,” especially with regards to her reputation in the conservative Sikh community. The judge also found that the chief editor of Chardi Kala, Sukminder S. Cheema, who was also the author of this article was “malicious in the extreme and deserving of punishment” for writing these articles about Mrs. Bains. The judge believed that Cheema either knew that the assertions in the article were not true or “was reckless as to whether or not they were untrue” and because of this, Bains was awarded $45,000 for the Wreck Beach article alone. If these two articles were presented in court now under the responsible communication on matters of public interest defence, the defendants would not make it past the judge’s bench, as the private life of Bains, an innocent, harmless, private citizen is not of public interest.

Even though Hayer received generous damages for many of the articles published by the Chardhi Kala Punjabi Newspaper Society, the judge noted that he was partially to blame for the publication of the “Wreck Beach” and “Punjabi Market” articles, as he had provoked Cheema to write these two articles, by publishing a letter to the editor that alleged Cheema was in public with a woman who was not his wife, implying that Cheema was having an extramarital affair.

The judge noted, “when I take both the provocation of Mr. Cheema and the revenge by Mr.Hayer into account, I conclude that Mr. Hayer’s damages [for these two articles] should be only nominal. I award him general damages of $100” (Hayer v. Charhdi Kala Punjabi Newspaper Society paras. 1-18 and 42-73).

Pressler v. Lethbridge and Westcom TV Group Ltd.


In May 1998, a British Columbia judge awarded $71,500 to husband and wife, Claus and Eileen Pressler for a television program broadcast by Westcom in October, 1993 (Ad IDEM Canadian Media Lawyers Association-Canadian Defamation Verdicts July 1995 to December 1998 and Pressler v. Lethbridge and Westcom TV Group Ltd. 1). The plaintiffs sued Westcom and Dr. David Lethbridge for conspiring to defame them.

Eileen Pressler lived in Salmon Arm, British Columbia with her husband Claus who ran a pharmacy. It is important to note that Ms. Pressler had her own newsletter called the “Council on Public Affairs Digest,” (CPA) and was a Holocaust revisionist who perpetuated and supported racist and anti-Semitic rhetoric and literature. In the television broadcast, it was falsely alleged, however, that Claus Pressler was a co-founder of the CPA, when in reality, he had little involvement in the organization and only passively supported his wife. Claus Pressler’s reputation suffered as a result of this broadcast and he lost his business and “lifelong career as a local pharmacist.” After reviewing the raw footage of the program, the judge found that the program was edited “by way of juxtapositioning, editing, and rearranging the statements of interviewees to create a potentially misleading story,” which would be “detrimental to the plaintiffs.”

Another defendant who had to pay for libellous statements was Lethbridge, a professor of psychology at the Salmon Arm campus of Okanagan University College. Lethbridge was interviewed for the broadcast in question, where he perpetuated the rumour that the Presslers were building a “large fortified convention centre for paramilitary use” on their property, to be used for unlawful purposes. The judge found that Lethbridge’s defamatory statements in the broadcast were motivated by “express malice against both of the plaintiff’s. ” The judge also noted that Lethbridge was motivated by “laudable ideals” in his desire to combat racism and anti-Semitism, and that he “tarred them all [the entire Pressler family] with the same brush, even though he knew it was unfair to do so.” (Pressler v. Lethbridge and Westcom paras. 1-8, 38, 53-70, 75-80, 98, 102-103, 119-120, 132-177).


Summary


Malice is not a clear-cut, black-and-white concept, where the libelled is morally just and the libeller morally deplorable. It’s more complicated than that. it is not up to the reporter to determine whether someone is morally reprehensible and it certainly is not a reporter’s job to jumpstart a smear campaign on a group or individual. The task of a journalist is to conscientiously and thoroughly pursue a story, reporting the facts in a fair, unbiased and unprejudiced manner.

Source List

“Aims and Objectives.” The Canadian Association of Journalists. 19 October 2010.http://www.caj.ca/?p=155

Belsy, Andrew and Ruth Chadwick. Ethical Issues in Journalism and the Media. New York: Routledge, 1992.

Bruser, Bert. Telephone Interview. October 22, 2010
(416)-863-2400

Flaherty, Gerald A, Q.C. Law and the Media: Defamation Law in Canada. Ottawa: The Canadian Bar Foundation, 1984. Print.

Goodwin, Gene and Ron F. Smith. Groping for Ethics in Journalism (3rd ed.). Iowa: Iowa State University Press, 1994.

Grant v. Torstar Corp. 32932. Supreme Court of Canada. 22 December 2009. Print.

Harcup, Tony. The Ethical Journalist. London: SAGE Publications, 2007. Print.

Hausman, Carl. Crisis of Conscience: Perspectives on Journalism Ethics. New York: Harper Collins Publishers, 1992.

Hayer v. Charhdi Kala Punjabi Newspaper Society. Supreme Court of British Columbia. 26 June, 1996. Print.

Jobb, Dean. Media Law for Canadian Journalists. Toronto: Emond Montgomery Publications Limited, 2006. Print.

Makow v. The Winnipeg Sun. CI 00-01-19096. Court of Queen’s Bench of Manitoba. 17 March 2003. Print.

Pressler v. Lethbridge and Westcom TV Group Ltd. 934277. Supreme Court of British Columbia. 20 May 1998. Print.

Retief, John. Media Ethics: An Introduction to Responsible Journalism. Oxford: Oxford University Press, 2002. Print.

Russell, Nick. Morals and the Media: Ethics in Canadian Journalism. Vancouver: UBC Press, 1994. Print.

Sanders, Karen. Ethics and Journalism. London: SAGE Publications, 2003. Print.

“Statement of Principles of the Association of Health Care Journalists.” The Association of Health Care Journalists. 24 October 2010. **http://www.healthjournalism.org/secondarypage-details.php?id=56**

Swick, David. Telephone Interview. Oct 22, 2010
(902)-422-1271 ext.127

Schwitzer, Gary. Email response. October 24, 2010
gschwitz@gmail.com