Reportage - its requirements, uses and abuses

Two wrongs don’t make a right

One of the first lessons in journalism school is known as the attribution rule. Ideally, all facts in a given story should have sources to whom those facts can be attributed. As the devil lies in the details, good practice says that journalists should check each fact against at least three sources to verify that “truth.”
In any story, the most common expression after any quote or an attributable fact is the traditional expression “he or she said.” Sometimes journalists use the word “alleged” or a variation of it as a potential lifesaver.
Using these expressions does nothing to protect the journalist nor the outlet that published the story from liability in a possible defamation suit over the content of the quote. This means that when a story includes the sentence “Mary alleged Joe is a crook,” or something like “Joe is a crook, Mary said” the story is simply repeating the libel that Mary stated and therefore, under the law, the publisher and the journalist are just as responsible as Mary. This is known as the rule of repetition (Brown 2003, p.71).
To define reportage, first it is important to define repetition or republication. In Canada, the United Kingdom, the United States and in other common-law countries, the bearer of the libel is just as guilty as the author of a defamatory statement.
When a journalist repeats someone else’s defamatory words, they have to prove that what was said is true, not simply that it was said by someone else (Hooper 2000, p.24). Concerning this specific point, the following quote is from the Canadian Press Stylebook:
Libel has serious potential to harm not only the news agency and its employees, but any newspaper or broadcaster using the material. A plaintiff can sue everyone, or pick and choose arbitrarily… (The Canadian Press 2010)
A case involving the American writer Edgar Alan Poe will help illustrate this point. In 1846, Poe was involved in heated arguments and exchanges in the New York press with other writers and publishers. These exchanges led to a libel suit that is largely believed to have contributed to ending his writing career (Moss 1970, p. xvi).
On June 23 1846, a card signed by Thomas Dunn English appeared in the Evening Mirror of New York in its “news and gossip” page. In sum, English accused Poe of forgery, for taking money from him to buy the Broadway Journal and for failing to fulfil a promise to give English a share of the magazine later (id., p. 77). On July 23, 1846, Poe sued Hiram Fuller and Augustus Clason, the owners of the Evening Mirror for publishing English’s card, claiming that he had been “damaged in his good name and reputation” and demanded five thousand dollars in compensation (id.). A jury decided that the accusations were false and awarded Poe $225.06 in damages (id., p. 177).
Then, as now, the publishers of the Evening Mirror were held liable for repeating the libel of English against Poe, printing it and circulating it. The repetition rule has existed under the common law since at least 1829 (Stern v. Piper 1997). To escape from it traditionally, a defendant has to prove in court that the defamatory statement is true.

Qualified Privilege, the older sibling of reportage

The best way to define reportage in the context of defamation law is to draw the difference between reportage and qualified privileged report, another exception to the repetition rule that has been available for much longer than reportage. Distinguishing the two has been a subject of confusion for American courts and so it may be for journalists as well (Youm 2006).
In the interest of democracy, people making defamatory statements in certain proceedings and documents may be protected from libel claims. These proceedings and documents include Parliamentary proceedings, city and municipal councils, school boards, proceedings in open court and most public meetings and publicly available documents such as police reports and other official records.
One of the primary functions of journalism is to serve as a forum for criticism and compromise (Kovach and Rosenstiel 2001, p. 166). In order to achieve that, it is imperative that the press be able to report on official business and public records. This is where qualified privilege applies as an exception to the repetition rule.
When quoting from official reports or proceedings, journalists are safe from any liability with regard to defamation as long as the report is a fair and accurate representation of what was said and is published without malice, which defeats all, if not most defences against libel claims. Qualified privilege for journalists arises out of the forum where information originates, not the nature of the information itself (Jobb 2006, p. 288).
Because of its ease of use and the blanket protection they afford, legally akin to truth, privileged forum and particularly privileged documents such as court files and other records are deemed guarantees of a solid, libel-proof story for journalists who report defamatory statements from such documents (id., p. 290).

Then what is reportage?

[T]he repetition rule does not apply to fairly reported statements whose public interest lies in the fact that they were made rather than in their truth or falsity. This exception to the repetition rule is known as reportage (Grant v. Torstar).
In Canada and in the United Kingdom, reportage will come to the rescue of the journalist who published an untrue defamatory statement made in a situation not covered by qualified privilege. However, the defence will only be sustained as long as the story is about the fact that the statement was made, rather than the statement itself; the matter is of public interest, and the allegations are fairly reported, even if the statement turns out to be untrue. Plus, in any case, the story must fit within the defence of responsible communication in the public interest (Al-Fagih v HH Saudi Research and Marketing; Grant v. Torstar).
In fact, reportage emerged as a subspecies of Reynolds, the case in the United Kingdom that created the concept of public interest responsible communication (PIRC) as a protection for journalists against libel claims (Al-Fagih v HH Saudi Research and Marketing; Reynolds v Times Newspapers). In Canada, the Supreme Court introduced the reportage defence in the same decision it created the responsible communication in the public interest and enumerated reportage as one of the last factors of its test (Grant v. Torstar).
Again, we will have to make another distinction to clarify a definition. Both PIRC and reportage will defeat a libel claim if, despite the journalist’s best efforts, some facts or allegations turn out to be wrong or false (Jobb 2009). Both have the necessary condition that the story in question must be on a matter of public interest, the determination of which we will discuss below.
The biggest difference between PIRC and reportage is what makes Dean Jobb call the introduction of the reportage defence in Grant v. Torstar “the most significant facet of the ruling (Jobb 2009).” According to Jobb, the introduction of PIRC on the one hand turned journalism’s best practices into law, invoking responsible reporting on the part of journalists, in fact “[t]he court has simply taken many of the elements of good journalism and recognized them in law (Jobb 2009).
Among these best practices, naturally, is the discipline of verification, which is essential to journalism (Kovach and Rosenstiel 2001, p. 79). The raison d’être of PIRC, indeed, lies specifically within the fact that good, responsible journalism is one of verification. That is because there are instances when despite endeavouring their best in verifying an allegation, a journalist cannot prove with the certainty required in a court of law that a statement is substantially true, which would justify its publication. Remember: truth beats libel.
The Supreme Court of Canada in Grant v. Torstar makes this point very clear when reasoning for the creation of PIRC:
To succeed on the defence of justification, a defendant must adduce evidence showing that the statement was substantially true. This may be difficult to do. A journalist who has checked sources and is satisfied that a statement is substantially true may nevertheless have difficulty proving this in court, perhaps years after the event. The practical result of the gap between responsible verification and the ability to prove truth in a court of law on some date far in the future, is that the defence of justification is often of little utility to journalists and those who publish their stories (Grant v. Torstar).
And here is where the difference between reportage and PIRC lies: reportage does not require the verification of truth. Verification being therefore such an important factor of responsible journalism and the key element to build a defence of justification to avoid libel for repetition, we pass now to an analysis of what is required of journalists to establish a reportage defence against repetition, regardless of verification of truth.

So what is required?

Under Canadian law, as established in Grant v. Torstar, a story seeking protection under reportage must be on a matter where the public interest lies in the fact that the defamatory statement was made rather than its content. If so, the story must also attribute the defamatory statement to a person, preferably identified, and (Grant v. Torstar):
(1) indicate, expressly or implicitly, that its truth has not been verified;
(2) set out both sides of the dispute fairly, and
(3) provide the context in which the statements were made.
The Supreme Court of Canada formulated the above test in the context of a decision that created the larger defence of responsible communication in the public interest. Like the British reportage defence, the Canadian Supreme Court finished the discussion of reportage with the following statement: “As always, the ultimate question is whether publication was responsible in the circumstances (Grant v. Torstar).”
This means that any claim that succeeds according to the four criteria set out above still must meet the other criteria for PIRC - except for the the key element of verification. Under reportage, journalists are not required to take steps to verify the truth of the statements repeated in a story (Roberts v Gable).
In practice, verifying the four requirements for establishing a reportage defence coincides and intersects with many of the PIRC elements. In the absence of any further parameters from Canadian case law, and in view of the fact that the Supreme Court expressly quoted British case law on reportage when discussing it in Grant v. Torstar, it is not a stretch to believe that at least the first few cases of reportage in Canada will look to British cases involving reportage to find the elements that will meet the four criteria set out above. Naturally, reportage in Canada will at some point develop its own standing, considering that PIRC itself departs from Reynolds in some points.
The Supreme Court of Canada in fact expressly referenced the four relevant British cases decided on reportage so far, namely Al-Fagih v. H.H. Saudi Research & Marketing, Charman v. Orion, Prince Radu v. Houston, and finally, Roberts v. Gable (Grant v. Torstar).
A short discussion of the two most important of these cases is important to establish what are the elements a defendant may have to meet for a defence of reportage to work in the United Kingdom, and possibly in Canada.
The leading case on reportage in the United Kingdom, which discussed reportage within responsible communication for the first time, was Al-Fagih v H.H. Saudi Research & Marketing (2002). A transcription of part of one of the concurring opinions is enough a summary for the purpose of establishing the case here:
What emerges clearly from that summary is that the paper was reporting a split in a political group which was clearly of significant interest to its readers. It seems to me that in this context, what is said by the one side in relation to the other is itself of considerable interest. This is so whether what is said is of high political importance, or merely scurrilous gossip or personal accusations. The fact that allegations of the latter sort are made rather than the former enables the interested reader to obtain some insight into the nature of the dispute. It is the fact that the allegation of a particular nature has been made which is in this context important, and not necessarily its truth or falsity (Al-Fagih v H.H. Saudi Research & Marketing).
Next, the same court dealt with a case involving the British Member of Parliament, George Galloway and the London Telegraph newspaper (Galloway v Telegraph). The articles deemed defamatory in the case suggest that he had been paid US$300,000 by the regime of Saddam Hussein from the oil-for-food program. The Telegraph relied on documents that had been found in the Iraqi Foreign Ministry in Baghdad following the takeover of the city by American and British troops. But the court rejected the reportage defence under the reasoning that the Telegraph’s stories not only reported what the so-called Baghdad documents said, but that they also both adopted and embellished them (Galloway v Telegraph).
Also in 2006, the England and Wales Court of Appeal delivered a landmark decision on the reportage defence in the aforementioned case of Roberts v Gable. This decision is worth commenting because it laid out the elements required for cases of reportage.
In Roberts v Gable, an anti-fascist newspaper published stories of infighting amongst the members of the rightwing British National Party (BNP), including allegations of theft and violence. In spite of the evident position of the paper against the BNP, the court applied its ten-prong approach and found that the reporting was responsible, even though the publications contained "a note of sarcasm" and the newspaper had not verified the allegations (Roberts v Gable). The court delivered its decision finding that a defence under responsible reportage should include the following elements:
- Public interest: in the case of reportage, public interest should be assessed the same way as in a general investigation of responsible communication. The matter under discussion as a whole, not just the defamatory statement must be one of public interest at the time of publication. But for reportage, and this is a key element to the defence, reporting on the fact that the defamatory statement was made must also be in the public interest, not the content of the defamatory statement per se (Al-Fagih v HH Saudi Research and Marketing ; Galloway v Telegraph).
- To qualify as reportage the story as a whole must have the effect of reporting, not the truth of the statements, but the fact that they were made (Roberts v Gable).
- A journalist cannot adopt the defamatory statements. In addition, a journalist must make it his or her own and must report the story in a fair, disinterested and neutral way, considered all circumstances surrounding the gathering of information, the manner of its reporting and the purpose to be served (Galloway v Telegraph; Roberts v Gable).
- Even if the story agrees with one side of the issue, the side of the defamed must be accounted for as well and even afforded a chance to respond (Galloway v Telegraph).
- Colour, commentary and opinion or anything that would go beyond plain reporting should be clearly separate from the defamatory portions of the story (Galloway v Telegraph).
- Full attribution is warranted for the defamatory statements (Al-Fagih v HH Saudi Research and Marketing).
- The publication must meet the standards of responsible journalism under Reynolds (Reynolds v Times Newspapers; Roberts v Gable).

A propos

Bearing all that law in mind, let’s look into an anecdotal sample case where reportage could be used as a defence for a journalist publishing somebody else’s defamatory comment without verifying the truth of those comments, simply because the fact that the comment was made is more important than the comment per se.
The now-defunct political blog of Toronto Life magazine and the blog of Spacing Toronto, a magazine on urban issues, both posted this video showing a quite funny incident that happened in the Toronto City Council room and hallways. The reporter is John Barber, who was then an experienced political commentator with The Globe and Mail. The two other people in the video are Toronto city councillors Rob Ford and Giorgio Mammoliti.



Did Spacing Magazine and Toronto Life defame Rob Ford by calling him a "fat fuck"? Let's see how the reportage defence could help them in this case.
First of all, calling anybody a “fat fuck”, a schoolyard-like insult, is a defamatory statement per se, whatever this expression actually means. Repeating that by posting the video online is just as defamatory, even if the expression had been beeped out, which it wasn’t.
However, based on the above discussion on the reportage defence, it doesn’t take much to agree that the two blogs that posted the video could use the reportage defence to defend from a libel claim based on the fact that they repeated the defamatory statement that John Barber said. Jonathan Goldsbie published a recent explanation in the Spacing Magazine blog as to why the video was reposted on their blog.
The reaction of the two councillors caught on video - chasing the journalist out of Toronto’s city council chambers - carries enough public interest to allow the media to repeat the defamatory statement without verifying its veracity. Clearly in this case, it is impossible to prove or inquire on whether Councillor Rob Ford actually is what he was called. Posting the video with his reaction to the fact that the defamatory was made is more important to the public than the defamatory statement itself, particularly considering that Ford has recently been elected mayor of Toronto.

Bibliography

Al-Fagih v HH Saudi Research and Marketing "Al-Fagih v HH Saudi Research and Marketing (UK) Ltd [2002] EMLR 215."

Brown, R. (2003). Defamation Law: A Primer. Toronto, Thomson Carswell.

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

Grant v. Torstar "Grant v. Torstar Corp., 2009 SCC 61."

Hooper, D. (2000). Reputations Under Fire: Winners and Losers in the Libel Business. London, Sphere.

Jobb, D. (2006). Media Law for Canadian Journalists. Toronto, Emond Montgomery Publications Limited.

Jobb, D. (2009). "The responsible communication defence: What's in it for journalists?". Retrieved 24/10/2010, from http://www.j-source.ca/english_new/detail.php?id=4625.

Kovach, B. and T. Rosenstiel (2001). The Elements of Journalism. New York, Three Rivers Press.

Moss, S. P. (1970). Poe's Major Crisis: His Libel Suit and New York's Literary World. Durham, Duke University Press.

Reynolds v Times Newspapers "Reynolds v Times Newspapers Ltd. and others [1998] 3 WLR 862."

Roberts v Gable "Roberts v Gable [2007] EWCA Civ 721."

Stern v. Piper (1997). "Stern v Piper [1997] QB 123."

The Canadian Press (2010). "The Canadian Press Stylebook Online." Retrieved 24/10/2010, 2010, from http://stylebooks.thecanadianpress.com/online/?do=entry&pub=style&id=4607.

Youm, K. H. (2006). "Recent Rulings Weaken Neutral Reportage Defense " Newspaper Research Journal 27(1).