What if "the other side of the story" isn't available?

(The original version of this entry was written by Liam Casey)


It is common practice for the target of a journalistic investigation to refuse comment for an upcoming story. In the past, this has presented problems for the journalist and news organizations for fear of being sued for defamation. One strategy employed by targets, according to media lawyer Brian MacLeod Rogers, has been to avoid speaking with news organizations. The target could wait until publication and then suit. Once a target launched a defamation suit, the onus would shift to the defendant, the journalist and its employer, who had to rely on defences of truth, qualified privilege and fair comment. This tactic may lose its potency because the Supreme Court of Canada, in late 2009, provided, for the first time, a defence for a journalist who tried, but failed, to get a target’s side of the story. Peter Grant, the subject of a Toronto Star investigation in 2001, avoided the paper's request for an interview and then sued for defamation after the paper published the article.

In late June 2001, the Star published an article by Bill Schiller about Grant’s proposed nine-hole golf course near New Liskeard, Ontario. Grant already owned a three-hole golf course, but wanted to expand it. This required the purchase of nearby Crown land, which required various government approvals. The article contained a line about Grant’s close relationship to the Mike Harris government, through Elections Canada documents, and a quote from a neighbour who suggested government approval was assured because of those ties. Schiller tried to get in touch with Grant on numerous occasions, but was continuously rebuffed. Grant even threatened Schiller with a libel lawsuit before the piece was even published.

After publication, Grant sued the Star for defamation and won, defeating defences of truth and fair comment. The jury awarded Grant damages worth $1.475 million. Then came the decision in the Ontario Court of Appeal in Cusson v. Quan, which recognized a new defence of what was then called "responsible journalism". The Star appealed the jury verdict on both liability and damages.The court of appeal ordered a new trial because it concluded that the jury instructions were flawed.

In the Grant decision, the Supreme Court detailed the elements of the new public interest responsible communication (PIRC) defence. On the matter of responsible communication, the Supreme Court asked the following question: Was publication of the defamatory communication responsible? In other words, did the reporter do everything feasible to ensure the article's accuracy? One aspect that must be taken into account when considering the new defence is whether the plaintiff’s side of the story was sought and whether it was accurately reported.

“In most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond: Failure to do so also heightens the risk of inaccuracy, since the target of the allegations may well be able to offer relevant information beyond a bare denial,” Justice Beverley McLachlin wrote on behalf of the Supreme Court (Grant). The target, however, must have knowledge of the allegations in order to be able to contribute to the accuracy of the article.

In the book The Ethical Journalist, Gene Foreman writes:

“Balance can be a virtue in framing a story if it leads a reporter to examine all sides of a controversy instead of emphasizing a single perspective or the polar opposites. But reflexively seeking balance can cause distortion.” Foreman details an example given by Al Gore, who criticized media for giving equal weight to people who denied that global warming was occurring due to humans despite zero scientific evidence to support that claim. Foreman means that not every story needs balance. For example, a story on the holocaust doesn't require comment from a Holocaust denier.

Exploring both sides of a story is, to say the least, a common journalistic standard. Many refer to this practice as balance, which is an inadequate term according to Bill Kovach and Tom Rosenstiel in The Elements of Journalism: “Balancing a story by being fair to both sides may not be fair to the truth if both sides do not, in fact, have equal weight … And in many cases where there are more than two sides to a story, how does one determine which side to honor? Balance, if it amounts to false balance, becomes distortion.”

Thus, the idea of "two sides to a story" is a simplistic approach; the truth is much more complex and nuanced than that.

The Missing Target
What should a journalist do if someone refuses to speak with them--and they are a public figure that is often in the news? Rob Ford refused to speak to the Toronto Star after the paper published an article about an incident in which he may have struck a high school football player in 2001 (Peat; Cribb). Ford has since served the newspaper with a notice of intent to sue for libel (Peat). The matter was complicated because Rob Ford was in the midst of running for mayor, an election he later won. Ford was in the news daily, which left the Star in the position of writing articles about the then mayoral candidate without his comment or without his confirmation of the facts. But it wasn't that bad, according to the Star’s City Hall bureau chief, David Rider. Reporters were still able to get Ford's comments in media scrums and reporters continue to try to get in touch with Ford. “You have to make that call because you never know when he’ll decide to start talking to us again,” Rider said to a group of interns in September.

I wrote a few stories about Rob Ford for the Star in the summer of 2010. While I was able to speak to any candidate about any issue, I was unable to reach Ford. In politics, of course, one candidate will often say something about another candidate, and it is common practice to have the other candidate respond. Unfortunately, Ford never returned my calls, which made for unbalanced stories. My editors stressed the importance of trying to get in touch with Ford, so I made an extra effort to get in touch with him through calls and emails to him and his entourage. I never heard back, but we still had an obligation to try to get in touch with Ford and to relay those attempts to our readers. And we still had to run the stories, even though they were incomplete.

If I got through to Ford I thought there was a chance he would end his silence. My stories were simple pieces—not investigative in nature—but I knew Ford could be litigious. It was also good practice to try to get in touch with him. I believed that if I tried hard to get in touch with him, then I felt I could use the responsible communication defence in court if he ever sued me for defamation.

There are ways to work around a target that won’t talk. For Ford, the Star was still able to verify basic facts through his aides. Not all is lost when a source refuses to speak with a news organization. And just because a target refuses comment, that doesn’t mean the journalist should give up. One unreturned phone call does not qualify as responsible journalism. There are other tricks to get them to talk. In Digging Deeper, a book written by investigative journalists Robert Cribb, Dean Jobb, David McKie and Fred Vallance-Jones, the authors suggest:

“If your investigation is to be successful, you need to get reluctant sources to talk. This will sound like a broken record, but the most important thing is preparation… In fact, you can advance the legitimate argument that it will be in the subject’s interests to speak to you to ensure that the firm’s point of view is heard.”

The new "PIRC" defence may encourage targets to talk—even after a story is published. As CBC investigative reporter Harvey Cashore pointed out in a visit to our class, publishing a story, despite not having all targets on record, may lead to further breakthroughs. Now it will no longer be good enough to refuse comment. If a target wants the complete truth to come out, it’s in his or her best interest to speak with the media.

Verification is one of the key elements of journalism as outlined by Kovach and Rosentiel. “The essence of journalism is a discipline of verification. In the end, the discipline of verification is what separates journalism from entertainment, propaganda, fiction or art,” the authors wrote (79). In the (U.S.) Society of Professional Journalists’ code of ethics, reporters must “diligently seek out subjects of news stories to give them the opportunity to respond to allegations of wrongdoing.” (SPJ Code of Ethics)

Independent verification of facts is a dying trend in modern journalism with access to the seemingly infinite amount of articles available online. (Kovach 86). “The internet and Nexis afford journalists easy access to stories and quotes without doing their own investigating,” journalist Geneva Overholser said. (Kovach 86). Kovach also argues that journalists are becoming more passive as they try to make sense of the constant stream of information they sift through, becoming “more receivers than gatherers.”

Michael Oreskes, a veteran journalist with the Associated Press and formerly with the New York Times, offered this advice: “do your own work.” (Kovach). It is simple yet profound advice. Do not rely on published reports as the sole means of verification. Make the phone calls and complete original research. Again, this speaks to the journalist’s role as a responsible communicator. Regurgitating other news agencies' stories without verification is dangerous.

The Future
Journalists are "purveyors of truths," Ryerson University ethics professor Ivor Shapiro told our class. But unearthing truth is difficult, especially when targets refuse to speak with reporters. And the new responsible communication defence may eventually create better journalism because the old strategy of refusing comment will abate.

Toronto media lawyer Paul Schabas, speaking on a panel about the new responsible communication defense in December 2009, said the defence will actually make journalists work harder to verify the facts and add fairness to their articles. (Fairhurst). The CBC's Cashore, at the same event, said it was the "the most important day in the history of media law." (Fairhurst)

One of the Star's lawyers, Bert Bruser, said in an interview that it's now policy at the Star to contact the target of an investigation at the onset of reporting. This is a direct outcome of the new libel defence, he said. Reporters should continue trying to get in touch with the target throughout, Bruser said: it just makes a libel defence much easier.

But it's not just reporting practices that will change due to the new defence. “Lawyers and PR guys will now say that the old stonewalling technique that we relied on for years isn’t going to work anymore," lawyer Brian Macleod Rogers, who co-taught our class, said. "In fact, these days, you see more and more PR people realizing that approach really paints a picture that isn’t good. And you need to coach your clients to be effective, but that’s a better approach than just stonewalling. But now clearly that’s not going to be good enough because as long as the reporter shows he gave the person every effort and the person understood what he was being asked about, then you’ve got a very good defence.”

Rogers said interview targets had a simple strategy that worked for years before the new responsible communication defence came into being.

“It used to be lawyers could do what Grant did — I’m not talking to you. And their lawyers would send a letter saying they’re going to sue your ass off before publication. The reason that worked was that the publisher and editor would get nervous. The journalist can’t confirm with the target information he’d love to confirm, so he’s left with this queasy feeling whether to take a chance or not. And often they say no, they won’t take a chance,” Rogers said.

Now, Rogers said, interview targets will have to think twice before employing that strategy with the new libel defence for journalists.

According to Bruser, that rethink is already happening. Targets are beginning to comment or verify facts when approached by reporters, said Bruser, who, like Rogers, is an adjunct professor at Ryerson. Targets may prefer to answer questions in writing, which reporters don’t prefer, but it’s better than no interview.

“I certainly have a perch from which I observe. My sense is that targets sometimes lawyer up and their lawyers, if not the targets themselves, understand that the media is trying to get their (client’s) comment. Sometimes they’re answered by the guys lawyer, so I think they are commenting gradually as a result of the new defence,” Bruser said.

Casey, Liam. "Rob Ford's Gift of the Gaffe." Toronto Star 14 Aug. 2010: A3. Print.
Cribb, Rob. "Rob Ford Told He Was Unwelcome as a Football Coach at Toronto High School - Thestar.com." Toronto Star. 13 July 2010. Web. 24 Oct. 2010. <http://www.thestar.com/news/gta/torontomayoralrace/article/835480--rob-ford-told-he-was-unwelcome-as-a-football-coach-at-toronto-high-school>.
Cribb, Robert, Dean Jobb, David McKie, and Fred Vallance-Jones. Digging Deeper: a Canadian Reporter's Research Guide. Don Mills, Ont.: Oxford UP, 2006. Print.
Fairhurst, Ted. "'A Huge Sea Change' in Libel Law." J-Source. 18 Feb. 2010. Web. 24 Oct. 2010. <http://www.j-source.ca/english_new/detail.php?id=4805>.
Grant v. Torstar Corp., 2009 SCC 61
Foreman, Gene. The Ethical Journalist: Making Responsible Decisions in the Pursuit of News. Chichester, U.K.: Wiley-Blackwell, 2010. Print.
Kovach, Bill, and Tom Rosenstiel. The Elements of Journalism: What Newspeople Should Know and the Public Should Expect. New York: Three Rivers, 2007. Print.
Peat, Don. "Ford Cuts off Toronto Star." Toronto Sun. 20 Aug. 2010. Web. 24 Oct. 2010. http://www.torontosun.com/news/torontoandgta/2010/08/20/15091791.html
"SPJ Code of Ethics." Society of Professional Journalists. Web. 24 Oct. 2010. <http://www.spj.org/ethicscode.asp>.

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