When is a story ready to publish?

(The original version of this entry was written by Zoe McKnight)

Freedom does not negate responsibility. It is vital that the media act responsibly in reporting facts
on matters of public concern, holding themselves to the highest journalistic standards
- Chief Justice Beverley McLachlin, in Grant v. Torstar Corp. SCC 61

In late 2009, the Supreme Court of Canada handed down a landmark ruling that created for journalists a wider berth to do responsible communication in the public interest. Whereas the previous common law defences to defamation – justification, fair comment and privilege – afforded journalists some protection against libel actions brought by the subject of a story, the bar was set so high as to produce a libel chill. Proving the facts of a story on evidence admissible in court is quite different from reasonably proving the facts to the best of a journalist’s ability, and matters of great import to the public interest could go under-reported in an attempt to avoid a lawsuit.

As Canadian journalists feel their way around the new legal environment created by the Grant v Torstar Corp. media victory, one question stands out. If the burden of proof has been slightly lessened, how much evidence is needed? When does a journalist know when enough is enough?

The question is especially salient for investigative reporters for three reasons. First, investigative journalists always report on matters of the public interest. Second, the capital-T truth of a story can be elusive at best, and even unknowable. And third, since investigations routinely expose wrongdoing and pass judgment, journalists are vulnerable to defamation lawsuits. As one investigative handbook puts it, “most investigative stories published or broadcast on issues of the public interest uncover information that may make someone, somewhere, look bad” (Cribb et al 206).

This essay seeks to reveal the methods used by investigative reporters to safely publish and broadcast stories in the public interest. It outlines how a truth may be arrived at while minimizing harm and managing the uncertainty that may arise when writing news that is “complex and slippery” (Walter Lippman in Kovach et al 83).
Journalism textbooks are largely silent on this issue, but conversations with some of Canada’s top investigative reporters revealed a spectrum of certainty – from the “gut feeling” that a story is true to a rigorous methodology of verification of the facts. According to journalists Harvey Cashore, Kevin Donovan and Cecil Rosner, and media lawyer Bert Bruser, the strength of a story lies in its evidentiary grounding. The spectrum is represented below: on a public interest story, arriving at the point where “enough is enough,” is a matter of instinct, a matter of conditioning and a matter of fact.

1. Investigative journalism in the public interest

2. A matter of instinct

3. A matter of conditioning

4. A matter of fact

5. Conclusion

6. References

Investigative journalism in the public interest
“Classic” investigative reporting is the crusading variety, aimed protecting the vulnerable in society and exposing the victimization that “continues under cover of collective ignorance,” and alerts the public to its findings, so as to spur outrage and to initiate public action to right the wrong (Ruvinsky vi). Whether sleuthing out government wrongdoing, corporate abuses, wrongful convictions, faulty institutions, injustices, corruption, crime, or simply the cultural politics of widely-held assumptions, investigative journalism is a moral discourse (Ruvinsky xv). It goes “beyond allegation and denial to establish facts, which, if possible, decide the issue one way or the other [...] it expresses judgment based on facts unearthed” and implies that things should be different (Ruvinsky xv).

That most journalists operate at a high ethical level is assumed, and it seems the Supreme Court has formally recognized journalists’ ethical behaviour by incorporating certain guidelines into the responsible communication defence. The defence rests on two main elements: that the publication that included the libel was a matter of public interest, and that “the publisher was diligent in trying to verify the allegation”, having regard to the seriousness of the allegation, the public importance and whether the plaintiff’s side was sought and accurately reported (C.J. McLachlin, SCC 61, emphasis added). While getting the absolute truth of the matter is no longer a strict requirement, the concept of truth through verification remains. This aligns with the Canadian Association of Journalists’ ethical guidelines specifically for investigative journalists to “seek and report the truth”, to verify the facts of a story through sources, officials and documents, and to make a “genuine and exhaustive effort” to contact those who are publicly criticized (CAJ.ca).

Kovach and Rosenstiel argue that journalism strives for a functional, practical truth, not truth in the absolute or philosophical sense (42). They quote Carl Bernstein, who broke the Watergate story with Bob Woodward in the 1970s, who said reporters strive to provide “the best obtainable version of the truth” (43). In this way, it is accuracy and verification that are the foundation of news and communication, and rather than bother with a postmodern rejection of the existence of truth, journalists employ a consistent method of testing information and transparent approach to evidence to tell the truth as nearly as it can be ascertained (Kovach et al 43, 81).

But when an investigative reporter goes about newsgathering searching out buried documents, recording interviews, meeting with confidential sources, chasing paper trails and filing Freedom of Information requests, how does he or she know when the sum of these parts equals some version of the truth? Cribb et al counsel for patience and thoroughness, exhausting all possibilities before stating something to be true. But they raise the important issue that “you need to know when you have done enough research, when that last document isn’t worth waiting for [...] at a certain point a journalist must ask: has enough work been done to validate my hypothesis? If the answer is yes, then the story can be written or broadcast” (8-9). All reasonable attempts at verification should be made, but other, more ephemeral processes are also at work.

A matter of instinct
Lule laments that investigative reporting is “the best and most lauded journalism,” but its best practices are skills “not taught in textbooks” (662). Similarly, Ruvinsky, after conducting countless hours of interviews with those in the field, argues that investigative work requires knowledge that must be learned but is not easily taught, using methods that can be practised but are not easily analyzed, such that “mastery is itself something of a mystery, perhaps even to highly skilled practitioners” (xiv). Required learning includes people and documentary skills, confidence in judgment and courage to follow hunches, but hard and fast rules simply do not exist.

“It is a bit of a gut feel – do we have enough? And I always like to have a little more than enough, and even maybe something in my back pocket that we might not necessarily write about. A bit more evidence,” says Kevin Donovan, who has been a reporter for 25 years and doing investigative work for more than 15 years at the Toronto Star

"I have now a ‘spidey’ sense that I might not have had early on, a spidey sense about a story – an instinct. It either rings a bell or it doesn’t, and it’s a pretty reliable thing [...] When I work with my students, the hardest things for them is to figure out what to do, what is the story. And I feel for them because it’s a tough thing to teach. I can’t really teach them that,” says veteran journalist Rob Cribb in Ruvinsky (141).

Cecil Rosner is the managing editor of CBC Manitoba and long-time investigative journalist who may be best known for his work in the 1990s on the wrongful conviction of David Milgaard. “At the very end, it comes down to a subject of call. There’s no formula. It’s not ‘You need these 12 things and once you have these 12 things, you can go ahead. It’s never like that.”

Both Rosner and Donovan make an analogy to the court system in Canada.

“The justice system has a similar problem, and it is: What is the burden of proof?” Rosner asks. Just as there are different burdens of proof on police and the Crown to get a search warrant, lay charges, bring to trial, and convict a person, a journalist exercises more caution and judicious evidence gathering when the stakes are higher. For “heavy duty” stories, in which a person’s reputation or business interests are on the line, “The burden of proof has to escalate then. You have to spend a lot of time testing statements, sifting evidence, finding more and more evidence... as the stakes get higher in any particular story, the amount of verification has to be more rigorous,” Rosner says. “Even though there is no formalized structure like that in journalism, you can see the analogy.”

Ruvinsky notes that most of the reporters she interviewed when compiling her book on Canadian investigative journalism spoke of a “sixth sense” about investigative newsgathering, a sense that is, over time, “honed to a sharp edge” (141). Reporter Peter Gorrie mentioned a “gotcha” moment, when a crucial piece of the puzzle is discovered, and also said slowly unfolding information can lead to overload and overwhelm (Ruvinsky 78). Of that sorting out process, he says: “It’s kind of an unconscious process. I don’t have any theory of it” (Ruvinsky 78).

A matter of conditioning
In Cribb et al, the authors warn that “livelihoods, even lives can be on the line” in an explosive story and to avoid unnecessarily damaging the reputation of the story subject, let alone the credibility of the reporter, accuracy matters (10). In this unregulated profession, the key is in the discipline of the craft, rather than a set of rules (Kovach et al 85). In most cases, this discipline is learned in the newsroom. Any objective method of reporting exists in pieces, informally handed down from reporter to reporter. There are no standard rules of evidence and no agreed-upon method; in fact, in a Stanford University study of verification strategies among journalists, the researchers found that those strategies were developed through trial and error, learned on one’s own, or learned from a friend or editor (Kovach et al 85).

“One of my mantras is that it is the editors’ responsibility to know the facts,” says Bert Bruser, media lawyer at the Toronto Star. Editors and journalists come to him at various stages of the writing process for advice. “I shout from the rooftop that it’s the editor’s responsibility to know who the sources are and make some assessment on the reliability and credibility of the information." If an editor is unaware of the identities of sources used in a story, “...then I also get upset. And that usually delays a story,” Bruser says.

Of the responsible communication defence, Bruser says it has not changed the vetting process of investigative work at the Toronto Star, because the paper’s editors and reporters have been relying on it ever since it was introduced in English law 16 years ago. “Are we checking all the facts we should check? Are we talking to all the people we should be talking to? If you can do that, you can publish. I think the defence has greatly improved the ability to do investigative reporting and yes, newsrooms rely on it when they are working on stories” (Bruser).

Newsroom culture is crucial to instructing young, “eager, breathless” journalists on how to do responsible investigations. “If you’ve got a young reporter, it often works best if someone like [Bruser] or an experienced editor talks to them at the beginning and says ‘You should do such-and-such, and to get this story, you better talk to so-and-so, and we need these kinds of documents... they think they have a story, but they’re a long, long way away. But that’s good because they learn,” Bruser says. Though the circumstances of a story will dictate the kind of documentation needed and the tactics taken, the legal consulting and editing process - idiosyncratic though they may be - will determine the story’s readiness to go to print or broadcast.

Journalists, for the most part, learn from each other informally. “Journalism, from the top down, is not very good at professional development,” Jim Bronskill told Ruvinsky, crediting Andrew McIntosh and David McKie for his own investigative direction (117).

Shapiro argues that “the practice of journalism has always been noted for its lack of clarity on quality criteria” and that criteria has taken the form of implicit, tacit, assumptions based on handed-down common experience, and on a “huge corpus of unwritten wisdom,” reflection and practice (144). Though what makes a good news story may not be evident to outsiders, it may be self-evident to those in a newsroom and their compatriots, and the quality of a news story may be derived from the “journalist’s due diligence and his or her conformity with the craft’s best practices” (Shapiro 144).

Just as a virtuous person does virtuous things, the responsible journalist is conditioned in the newsroom to do sound work. Investigation work is not typically done by the fresh-faced intern. “I always say to journalism students: don’t go to your job interview and say you want to be an investigative journalist or a foreign correspondent,” Donovan says.

Harvey Cashore, who, as a producer for CBC’s fifth estate investigative program, worked for 15 years to uncover the Airbus scandal of the Mulroney era. He recalls the frustrating experience of working on the Airbus story, getting new information and being excited by it and showing it to his producers, who would often say ‘Okay, that’s great. But we need more” (Cashore). “At a fifth estate screening, you show to a team of people your documentary, and the first person who is asked to comment is the lawyer... There is a really important and interesting conversation about the law and fairness. That’s a process that can go on for days sometimes, or weeks, or months,” Cashore says.

What is sometimes called prosecutorial or skeptical editing is central to the verification process. Editors will comb a piece line by line, statement by statement, rooting out errors of fact, assertion and narrative. (Kovach et al 104). Rosner calls this a “line by line fact check,” in which “you subject every line to a questioning of the reporter: How do you know this? What is your body of evidence on this? Everything in a journalistic story is a fact or someone’s opinion...If we’re stating things as facts, we better be comfortable that they are indeed facts.”

A matter of fact
According to Ettena et al, “investigative reporting can be journalism at its most politically vigorous and methodologically rigorous” (491). As a matter of course,

“[r]esearch and investigation will not only include the accessing and management of statistical data, historical records or financial information from the Internet. It will involves delving into personal and company histories, property records, court reports, council minutes and government archives. The possibilities for exciting fact trails are endless” (de Burgh 95).

Gathering enough facts and evidence to build a compelling case involves compiling this type of hard evidence as well as interviews. Whether, like Donovan, a journalist confronts the target of the investigation early on, or like Cashore, confronts the target after his case has been built, interviews are also essential. If public records form the backbone of an investigation, it is people, after all, at the centre of news (Cribb et al 37,99). The necessity of interviews is recognized in the Grant ruling, which says responsible communication must consider the right to respond to allegations, which “speaks to the essential sense of fairness the defence is intended to promote, as well as thoroughness” (McLachlin 116).

When a story is finally eligible for publication will depend on its accuracy and fairness, which is influenced by the form the story will take. You must have enough information to fill the medium, says Cashore. An hour-long documentary inevitably needs more work than a daily news story, and Cashore says the Airbus and Mulroney-Schreiber stories could have aired much sooner had he been working for The National, a nightly news program, rather than the fifth estate. But the heart of the matter is less about the quantity of information than the journalist’s ability to tell the story with the information at hand.

Rather than conceiving of investigations as one bombshell story, “you put out part of the story because you know part of the story,” and most information is revealed bit by bit as the story develops, Cashore says. “You can liken it to a base hit or a home run,” he says. Some stories do have a cataclysmic event. For Cashore, it was realizing that Mulroney was paid cash in envelopes by a middleman. “We didn’t know that when we began the story, and we did many stories before we knew that...Every time we got information that we thought was in the public interest, we reported it. But we didn’t know the whole story. We did our various versions of what we knew at the time.”

Knowing when to stop is key to understanding when “enough is enough.” For Donovan, he reaches that point when he is not learning something every day. “You’re investigating a charity. You’ve got the financial statements; you’ve talked to the executive director, a couple of board members and you’ve talked to donors,” and after a couple more days of digging, nothing is turned up. “You’re done,” Donovan says. Unless the reporter is waiting on a specific document or important interview – in that case the investigative team at the Toronto Star always waits before going to print. “Journalism is not like math,” Donovan says, but a checklist helps.

So does an open mind. As Shapiro suggests, a feedback loop is created as journalists cycle between the discovery and examination components of an investigation, during which the focus may shift from the story itself and the methodology required to complete it, to an examination of the collected data, “testing purported facts’ verifiability and coherence,” logic, relevance and evidentiary proof (151). This may mean the journalist changes gears completely, as it becomes evident that a hypothesis or a tip has not panned out, or as a different angle emerges. Donovan encountered this earlier in 2010, when a tip sent him looking for a link between former Conservative cabinet minister Helena Guergis, her husband Rahim Jaffer, a crown attorney, and drug charges that mysteriously disappeared. "I made a judgment call that (the link) wasn't there, or it was so deep that I would never get it. Let's write the story I have," Donovan says. And in the last paragraph, he suggested the possible link among other scenarios and denials, vagueness also made admissable by the new defamation defence.

As the stakes get higher, a story’s potential to do real harm to reputation or livelihood must be weighed against the potential good, in light of the evidence at hand. Questions must be answered, facts double- and triple-checked because even the suggestion of wrongdoing can tarnish a reputation permanently. And because the capital-T truth cannot be known, at some point an editor must sign off on the story.

The case of Lori Douglas, a Manitoba judge on the Court of Queen’s Bench, is an instructive example of this balancing act. Douglas stepped down from the bench in 2010 after the CBC broadcast a story alleging that she lied on her judicial application to the bench: knowing full well but omitting that her lawyer husband had solicited a client to have sexual relations with the couple. The story aired in the midst of a million-dollar lawsuit launched by the former client. At first glance, there seems to be a glaring omission of fact: the CBC did not prove that Douglas lied on the application. A Canadian Judicial Council inquiry is still under way and the results will not be available for months to come, and both Douglas and the Council refused to comment. How did the CBC know they had enough evidence to publish?

Cecil Rosner calls this story an “example of a story that has heavy-duty consequences,” especially since Douglas may have been an unintended victim of her husband’s devious behaviour rather than a willing participant. But instead of waiting for an official response from the Judicial Council, Rosner and the CBC chose to do deep background research and draw their own conclusions. As such, their due diligence involved consulting knowledgeable confidential sources, some of Canada’s legal experts on judicial appointments, and even the former federal justice minister, Irwin Cotler, who appointed Douglas to the bench in 2005.

“After we had that conversation, it gave us more evidence. It made us a little more comfortable,” Rosner says. “Imagine the truth is like a ladder. Right at the beginning, when you’re making your first calls, you’re at the bottom. You don’t know anything. You’re trying to figure stuff out. But the more evidence you gather, the more documents you accumulate, the more you nail down, you’re climbing higher and higher on the rungs of that ladder,” until you can peek over the top and glimpse the truth of the story. And, although the story generated discussion and controversy, the facts are not in dispute by any of the parties and no libel actions have been brought.

Whether an investigative journalist digs down to answer the 5 Ws of a story, or whether he or she answers just one – “How did it come to happen?” – the whole truth may never show up. Cashore, despite dedicating the better part of his career to the Mulroney/Schreiber saga, admits that we still don’t know what really went on behind closed doors. No doubt there is a gray area, but an investigative reporter succeeds as the gray turns to black and white. In practice, that distillation process, in some ways as opaque as the truth itself, may begin and end with a gut feeling. But in between the story has been triple-checked, edited, vetted, scrutinized by experienced journalists with the deepest commitment to responsible communication in accordance with principles of accuracy determined in newsrooms and now recognized by the Supreme Court.

Bruser, Bert. Telephone Interview with Zoe McKnight. 21 Oct. 2010.

CAJ.ca . "Statement of Principles and Ethics Guidelines – Investigative Journalism ." The Canadian Association of Journalists. 2004. Web. 25 Oct 2010.

Cashore, Harvey. Telephone Interview by Zoe McKnight. 21 Oct. 2010.

Cribb, Robert, Dean Jobb, David McKie, and Fred Vallance-Jones. Digging Deeper: A Canadian Reporter's Research Guide. Don Mills, Ont.: Oxford University Press, 2006. 8-213. Print.

De Burgh, Hugo. "Skills Are Not Enough: The Case For Journalism as an Academic Discipline." Journalism. 4.1 (2003): 95-112. Web.

Donovan, Kevin. Telephone Interview by Zoe McKnight. 21 Oct. 2010.

Ettena, James S., and Theodore L. Glasser. "An International Symposium on Investigative Journalism." Journalism. 8.5 (2007): 491-494. Web.

Kovach, Bill, and Tom Rosenstiel. The Elements of Journalism. 1st rev. ed. New York City: Three Rivers Press, 2007. 5-106. Print.

Lule, Jack. "Custodians of Conscience: Investigative Reporting and Public Virtue." Journalism and Mass Communication Quarterly. 75.3 (1998): 662-663. Web.

McLachlin, Beverly. Supreme Court of Canada. Grant v. Torstar Corp. SCC 61. , 2009. Web. 25 Oct 2010.

Ruvinsky, Maxine. Investigative Reporting in Canada. Don Mills, Ont.: Oxford University Press, 2008. vi-162. Print.

Rosner, Cecil. Telephone Interview by Zoe McKnight. 21 Oct. 2010.

Shapiro, Ivor. "Evaluating Journalism: Towards an Assessment Framework for the Practice of Journalism." Journalism Practice. 4.2 (2010): 144-162. Web.

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