Approaching the subject of an investigation

(The original version of this entry was written by Krista Simpson)

Investigative journalism, perhaps more than any other type of reporting, has the great potential to cause harm to the subject or subjects of a story. Therefore, a reporter must commit to stringent standards of care when pursuing information for an investigative report. Doing so is not only part of the journalist’s ethical responsibility, but it also provides a defense against any future legal repercussions.

The landmark Grant v. Torstar decision is particularly significant to the investigative journalist. Essentially, it allows reporters the opportunity to be wrong about aspects of their story, as long as they can prove that they made a thorough attempt to get the truth. As journalism professor Dean Jobb explains, “it shifts the focus away from what was published or broadcast… and places it squarely on the conduct of the reporters and editors who produced the story” (2009).

An important part of this process: making a concerted effort to obtain the subject of the investigation’s side of the story. This is clearly laid out in Grant v. Torstar. The judgment lists ten considerations, called Reynolds factors after the seminal British court case, that are used to determine whether a report meets the criteria of responsible communication in the public interest. The seventh and eighth points are relevant here: “Whether comment was sought from the plaintiff” and “whether the article contained the gist of the plaintiff’s side of the story” (Reynolds v. Times Newspapers Ltd and Others).

This paper will look at ethical and legal principles of obtaining a subject’s side of the story. It will include both conceptual tenets and practical suggestions. Through this analysis, it will be clear that attempting to get the subject’s side of the story is both crucial and central to good investigative reporting. Anything less may be difficult to defend and should be the very rare exception, never the rule.


The foundational principles
Grant v. Torstar lays out three key reasons why it is essential that the subject’s side of the story to be sought and, if received, reported. First, it is essential to the overall fairness of the story and allegations. Second, it is foundational to thorough reporting. Third, failing to attempt to get the subject’s side of the story “heightens the risk of inaccuracy, since the target of the allegations may well be able to offer relevant information beyond a bare denial” (Grant v. Torstar).

These concepts are not new. One of the earliest books on investigative reporting makes it clear that approaching the subject is essential to ensure that the story is both fair and accurate (Anderson and Benajaminson, 1976, p. 128). Furthermore, the authors emphasize that it is crucial to be specific about the allegations presented: “An experienced reporter reels off as many investigative findings as possible during a confrontation with the subject of an investigation. Not only is this fair, since it gives a chance for rebuttal, but it also allows the principal to correct whatever minor errors the reporter may have made that, if left in the story, are likely to detract from its credibility” (Anderson and Benajaminson, 1976, p. 130)

This process also helps distinguish between actual investigative journalism on matters in the public interest versus sensationalist reporting that formats the facts to fit a salacious headline. In a democratic society, “journalists must serve as an independent monitor of power” (Kovach and Rosenstiel, 2007, p. 140). Still, this watchdog role, while a vital tenet of the craft, is complicated, as Kovach and Rosensteil go on to explain: “This principle is often misunderstood, even by journalists, to mean ‘afflict the comfortable.’ Moreover, the watchdog principle is being threatened in contemporary journalism by overuse and by a faux watchdogism aimed more at pandering to audiences than doing public service” (2007, p. 141).

Thorough reporting on matters in the public interest is the crux of good investigative journalism, and it is what Grant v. Torstar aims to protect. Investigative journalists can offer the public a voice when official sources are not responding. One book explains: “…Investigative journalism distinguishes itself from routine journalism through this special relationship to the public and through its attention to accuracy, fairness and completeness” (Kennedy and Moen, 2007, p. 115). Grant v. Torstar offers journalists the protection they need to report risky, important stories while maintaining a high standard of thoroughness.


Taking it a step further
The fifth estate senior producer Harvey Cashore emphasizes that when approaching the subject of a story, his goal is to convince them that he is trying to understand the whole story and therefore it is worth talking to him. It is more than just saying “I put in my five phone calls” to a subject and I am covered, he says. Instead, Cashore says to approach someone fairly, explain what you are researching and get them to talk. When someone refuses to speak with him, “that means I’ve failed,” Cashore says (personal communication, October 12, 2010).

Cashore describes truth as an elusive concept. “You can never completely capture it,” he says. He explains that for every event, there are numerous perspectives. History is written and re-written, all based on the same events, all by people who thought that they were being honest or impartial or meticulous, he says. The more perspectives the reporter can capture, however, the closer they can come to what he calls “capital-T truth.”

Cashore says that many times, an interview with the subject will alert to the journalist that “you have things wrong.” A journalist may honestly think they understood the facts, but a new perspective changes the story significantly. As Cashore explains, the reporter can get the facts right but the perspective wrong; therefore, the more perspectives explored, “the more fair and accurate your story.”

Other times, interviewing the subject may reveal significant errors. Cashore gives an example where he approached a subject with corporate documents that clearly proved an allegation. However, the subject was able to prove to him that the documents were actually mistaken. Cashore says he would have never expected a corporate document to be wrong, but in this case, it was. “Always keep an open mind,” he says.

What is the biggest mistake that investigative journalists make? Cashore says it is approaching the story with a “preordained view” or hypothesis and “trying to get the facts to fit that.” It very well may be inadvertent, he says, describing it as “classic tunnel vision.” Journalists often think they see an injustice and want to right a wrong. What they need to do, Cashore says, is stop and look at the facts on their own. Realize that “I got there for this reason—now I must suspend those reasons and let the facts tell me what the story is.”

Nine out of ten times, the story the journalist had turns out to be very different, Cashore says. However, “you end up with a better story anyway.”


The logistics of approaching a subject
Investigative reporter Kevin Donovan of The Toronto Star often approaches the subject of a story early in his investigations. As Donovan explains, trying to get their comment early on helps the reporter determine if there is truly a story to pursue. “Talk to everybody at the start of the story,” he says. “I go through a process on all investigations which I call due diligence, kind of a business term, where I go around and try to talk to everybody, including quite often – this is controversial among many journalists – the target of the investigation. I try to talk to them right at the start, and I say here’s what we’ve heard about you, and get their feedback” (personal communication, October 1, 2010).

Quite often, Donovan says, if the subject agrees to speak to a reporter early on, that is a “real strong sign” that there may be no story. On the other hand, a refusal to speak to a reporter “tells you something.” Testing these waters through these types of informal interviews, Donovan says, can be done rather quickly and is “really, really important.” He explains that it helps protect the journalist from developing a strong hypothesis early on. Interviewing the subject, as well as sources close to the subject, helps identify the true story and point the journalist in the right direction.

Cashore takes a similar approach much of the time. “Sometimes you want to approach the person right away because there’s no reason not to,” he says. By speaking to them early on, it “shows that you’re being fair and not alarming them.” This, he says, is often better than them hearing through the grapevine that reporters are looking into them. For these reasons, “most often it makes sense to call someone right away.”

This, Cashore explains, does not mean doing the full sit-down interview with them at this point. He suggests the reporter may want to book a future interview, perhaps a month in advance, so that if friends or associates call them in the meantime, the subject is not surprised to hear a reporter has been asking questions about them.

On the other hand, Cashore says timing often differs when approaching public servants or politicians who are actively working in an area on which the journalist is reporting. There may be no need to talk to them right away, he says, as the topic in general is public and the politician is well-educated in it. In these cases, it is likely prudent to be further along in the research process before approaching them with questions.

When approaching a subject, “honesty is the most important thing,” Cashore says. “Never mislead anybody about the topic of your interest.”

Cashore says he constantly asks himself, “If it were me, and I was doing a story on me… would I feel that the way this is being approached would be fair?” He explains that this does not mean “would I be happy or comfortable?” It does mean, however, “do I think that what this person is doing is fair?” He emphasizes the need for fairness and transparency, just as he expects the same courtesies from a subject he is interviewing.

Investigative journalists who work in television face the added challenge of getting the subject to speak on camera. Cashore suggests that this may require the reporter to avoid certain questions in a pre-interview, so that the person does not become unwilling to be recorded. For instance, he describes a situation when the reporter held back certain details of facts they had uncovered until the on-camera interview with a politician. He emphasizes again, though, that in this process they never mislead the subject of the investigation about the topic of their interest. Still, Cashore explains that different rules will apply when interviewing politicians; he would not likely find such an approach appropriate when confronting average people who are not used to dealing with the media.

Finally, there is a role for follow up with the subject. Once a report has been published, Donovan encourages his reporters to go back and try to re-interview the subject. He admits that this can be a “hard thing to do if the person is the target.” However, at the end of the day, he says that the journalist must constantly ask “are we being fair?” It is crucial that the target is given “every opportunity… to respond to the allegations.”


The legal precedents
Thus far, this paper has examined the ethical and practical guidelines pertaining to getting the subject’s side of the story. Commitment to these principles strengthens a reporter’s case in any subsequent legal challenges to their work. Several cases in different countries have affirmed the importance of thoroughly and honestly approaching the subject for their comment.

The seminal case on qualified privilege, defamatory statements and public interest is from the British courts: Reynolds v. Times Newspapers Limited and Others. As previously noted, this case laid out ten principles to consider when reporting a potentially defamatory story—including an attempt to obtain and report on the subject’s version. They do state that while it is important it may not be necessary to acquire the subject’s point of view; subsequent cases, however, prove the importance of it.

Take, for instance, litigation that followed an article suggesting British MP George Galloway was a long time paid agent of Saddam Hussein. In their ruling on Galloway v. Telegraph Group Ltd., the court found that the reporter failed to specify the allegations they were going to publish in an interview with Mr. Galloway. They also found that he “did not have a proper opportunity to respond in advance to allegations of such gravity” (Galloway v. Telegraph Group Ltd.). As one legal journal explains, the judge “accepted that the allegations were of a serious nature and would be of public concern, but he did not accept that the paper had either handled them or presented them in a responsible way” (Smith, 2005).

Another relevant British case is Jameel v. Wall Street Journal Europe, where the court took issue with the tight timeline a reporter gave the subject to respond to the allegations. The journalists were in fact denied the responsible journalism defence by the Court of Appeal on the “sole ground that the paper had not waited long enough to hear back from the plaintiff before running the story” (Grant v. Torstar). This was later overturned by the House of Lords, who found that all the other key tenets of responsible journalism were met. They explained in their ruling: “It might have been better if the newspaper had delayed publication to give Mr, Jameel an opportunity to comment in person. But I do not think that their failure to do so is enough to deprive them of the defence that they were reporting on a matter of public interest” (Jameel v. Wall Street Journal Europe).

Still, Grant v. Torstar explains that the burden is placed upon the defendant to show “that publishing the information was reasonable in the circumstances.” Based on an Australian case, Lange v. Australian Broadcasting Corporation, this almost always includes an attempt to get the subject’s side of the story. From that ruling: “Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond” (Lange v. Australian Broadcasting Corporation).

Finally, approaching the subject can offer protection against a finding of malice. As Grant v. Torstar makes clear, malice is absolutely incompatible with responsible journalism. Failing to publish a target’s side of the story (especially if the courts find it to be a plausible explanation) opens the possibility that the journalist could be found to have malicious intent, explains media lawyer Peter Jacobsen (personal communication, October 13, 2010). This was a factor in the ruling Quan v. Cusson, which stemmed from a reporter’s story about an OPP officer that allegedly misrepresented himself and possibly interfered with September 11 rescues. The reporter, Douglas Quan, spoke with the subject Danno Cusson and included his denials of wrongdoing as part of the article. The Supreme Court of Canada ruling indicated this step was important to show no malice on behalf of the reporter (Quan v. Cusson).


Practical legal considerations
In short: “In lay person’s terms, it’s important to prove to the court that you acted fairly. And we have this overarching principle both in law and in journalism that you should allow the target an opportunity to explain him or herself,” says media lawyer Peter Jacobsen.

As Jacobsen goes on to explain: “If you have an allegation that turns out to be wrong that the target could have told you about, you’re going to come under severe criticism from the court for not asking the other side.”

In practical terms (and as emphasized in Galloway v. Telegraph Group Ltd.), Jacobsen says that it is important that the journalist approach the subject of the investigation and lay out the specific allegations. “Journalists have to understand that their obligation is to give chapter and verse with respect to what they’re asking about,” he says. This is essential to ensure that the journalist qualifies for the responsible communication in the public interest defense. Failing to be specific with the subject of an investigation, then publishing specific allegations, allows the court to say that the journalist never gave the person an opportunity to respond to those precise allegations. Jacobsen suggests tape recording conversations or messages that are left, or contacting the person via email so the allegations can be clearly set out.

Strictly speaking, there are no legal obligations in terms of how many attempts the journalist needs to make to contact the subject. With the speed of the news cycle, Jacobsen says that deadlines are another complicating factor when trying to acquire and publish the story. However, it is important to give the person a “reasonable opportunity" to respond, he says. He suggests doing things like verifying that they are actually in the office, perhaps confirming with their assistant that the email did in fact reach their inbox. He also suggests contacting the subject at multiple addresses if the journalist is unsure where they are currently. “Will the court find that you made a reasonable effort to contact someone?” he asks.

In the event that a story is published or broadcast and then the target comes forward to clarify allegations, Jacobsen says that it is important that the news organization address their side of the story at this point. This may involve a follow up story or program. Ultimately, Jacobsen explains, it has to be some way that is acceptable to the subject. “There’s all those ways of getting it in but it’s a fool’s game not to run the other person’s, the target’s, point of view, particularly if you think it has some real merit,” Jacobsen says.

Jacobsen says that journalists need to keep in mind that at the end of the day, the person they are writing for is the judge. He suggests that journalists work hard to appear reasonable while not letting the subject push them around and delay their deadline. “You want the judge to feel that you have been fair,” Jacobsen says.


Conclusion
It should be clear that there are compelling ethical and legal reasons for a journalist to approach the subject of a story for their comment and response. While there are various methods and tips for doing this effectively, the most universal principles are these: be honest, be fair and be specific. Doing so allows the journalist to produce the most quality investigative work with the best chance of being comprehensive and accurate—in short, the purest form of responsible communication in the public interest.

References
Anderson, D. & Benjaminson, P. (1976). Investigative Reporting. Bloomington: Indiana University Press.

Galloway v. Telegraph Group Ltd., [2004] EWHC 2786 (QB)

Grant v. Torstar Corp., 2009 SCC 61

Jameel and others v. Wall Street Journal Europe SPRL, [2006] UKHL 44

Jobb, D. (2009, December 23). The responsible communication defence: What's in it for journalists? J-Source. Retrieved October 22, 2010 from http://www.j-source.ca/english_new/detail.php?id=4625

Kennedy, G. & Moen, D. (Eds.) (2007). What good is journalism?: How reporters and editors are saving America’s way of life. Columbia: University of Missouri Press.

Kovach, B. & Rosenstiel, T. (2007). The Elements of Journalism. New York: Three Rivers Press.

Lange v Australian Broadcasting Corporation, [1997] HCA 25

Quan v. Cusson, 2009 SCC 62

Reynolds v. Times Newspapers Ltd and Others, [1999] UKHL 45

Smith, S. (2005, January 17). What’s right to be wrong? The Journal Online. Retrieved October 22, 2010 from http://www.journalonline.co.uk/Magazine/50-1/1001390.aspx