Introduction

//[Introduction]//
="Responsible" journalism: a meeting place for law and ethics=

by Brian MacLeod Rogers and Ivor Shapiro
(originally published at [|J-Source.ca])

On December 22, 2009, the common law of libel in Canada changed forever. Grant v. Torstar was the Supreme Court of Canada's second pivotal ruling on libel law in as many years. The first, [|WIC Radio v. Simpson], had rewritten the rules for defending statements of opinion as "[|fair comment]"; now the top court took aim at assertions of fact.

Peter Grant was an influential Ontario businessman whose cottaging neighbours worried that his 2001 plans to expand a private golf course onto Crown land could affect their lake and foul its waters. Some believed Grant's influence with then-premier Mike Harris made its approval, in one neighbour's words, "a done deal."
 * The Grant case**

When Grant sued the Toronto Star over the latter statement's imputation of corruption, the paper drew on British and Commonwealth precedents to argue that reporter Bill Schiller's work should be seen as an example of “responsible journalism.” He had fully investigated the neighbours' allegations, conscientiously tried to verify the facts, and sought - without success - Grant’s response.

The Supreme Court of Canada agreed that a defence should be available where such steps had been properly taken. Chief Justice Beverly McLachlin wrote that by demanding investigative journalists be ready to prove defamatory statements of fact true through evidence admissible in court, often many years later, the common law had promoted "libel chill" - a reluctance to investigate controversial matters of public interest.

Given the enshrinement of free expression in section 2(b) of the Charter of Rights and Freedom, the court ruled, it should be enough for journalists to appropriately and "diligently" try to verify defamatory allegations, and report them fairly having regard to a series of eight factors, including sources' reliability, "whether the plaintiff's side of the story was sought and accurately reported," and (this is the eighth consideration!) "any other relevant circumstances."
 * The new defence**

The court called the new defence "responsible communication" (not "journalism") because it was not interested in giving professional hacks a privilege unavailable to ordinary-citizen communicators looking into matters of public interest. Lawyers quickly coined the shorthand title "PIRC" for the defence of "public-interest responsible communication."

What is this thing called "responsible" communication? Beyond listing the above-mentioned eight areas for consideration, the court pointedly declined to lay out specific legal hurdles that reporters must leap in order to claim the PIRC defence. Instead, the court clearly implied that the standards of practice in – yes - //journalism// should establish norms for publishing information in the public interest.

"It is vital that the media act responsibly in reporting facts on matters of public concern," the Chief Justice wrote, "holding themselves to the highest journalistic standards." And while "established journalistic standards" could "provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media."

So, the "highest journalistic standards" for reporting matters of public concern have effectively been promoted from ethical norms and criteria of quality to something approaching a legal code.

But what are those standards?

A comprehensive (yet still inexact) answer fills not a book or a shelf but much of a wing in one of our university's library floors, not to mention thousands of digital sources and the individual opinions of self-styled reporters, producers and editors. (Being members of a proudly unregulated profession, "journalists" are //all// self-styled).
 * Defining responsible journalism**

We could, of course, sit back and wait for future armies of plaintiffs' and defendants' lawyers to debate whether or not this or that "journalistic standard" constitutes a widely held professional best practice. Or, journalists themselves could see in the Grant judgment a challenge to start a public discussion about the best practices of "responsible" reporting, editing and production.

A group of graduate students of media ethics and law at Ryerson University's [|School of Journalism] has opted for the latter path. To mark the first anniversary of the Supreme Court's ruling in //Grant//, they have launched a wiki entitled "The Elements of PIRC" in a tribute to illustrious collections of Elements from Strunk & White's Style to the much admired work on journalistic quality by Bill Kovach & Tom Rosenstiel.

"Do journalists have 'standards'?", these Master of Journalism candidates asked in a series of seminars on ethics and law (led by us and half a dozen guest lecturers) in the fall of 2010. Their collective answer makes no claim of comprehensiveness, and it ranges in style and form from the personal to the political. Rather than confining itself to issues directly relevant to potential defamation lawsuits, their contributions include key aspects of journalistic ethics and processes.

Given the centrality of verification to the PIRC defence, it's no surprise that the now-commonplace notion of journalism as a "discipline of verification" (rather than of assertion) is a premise for several entries in the wiki project, which probe practices and considerations in:
 * The elements of "PIRC"**
 * Questioning the reliability of sources, having regard to their authority, expertise, motives, and the extent to which they have direct access to the information of interest.
 * Applying a "logic of proportionality" in choosing how much care to take in verification with regard to what is at stake, and taking particular measures when relying on confidential sources.
 * Balancing the sometimes conflicting interests of getting the story first and getting it right, especially in interactions with social media

Other authors' entries at the site's launch explore the nuances of reporting, including considerations of truthfulness with - and outright deception of - sources, and when and how to approach the subject of an investigation. Several entries probe the ideas related to reportorial independence and balance, reporters' personal connections to a story and potentially malicious motives. Others suggest guidelines for when the truth is well-established, when "one side won't talk", and when the story's essence lies in the existence of controversy rather than the accuracy of particular facts (which underlies the legal concept of "reportage", now enshrined as a form of the PIRC defence.)

Still other "best practices" proposed and explored include:
 * Principles of story selection and judicious editing; transparency about the journalistic process; deciding when a story is ready to publish; and corrections and retractions.
 * Weighing free expression and the duty to seek and report truths against competing claims such as the right to privacy; a fair trial; and the duty to minimize harm.
 * The need for critical reflection on social needs, the sources of information, interests, and intuition.

The site's authors do not claim to have codified clear and firm answers on best practices. Rather, as the home page explains, the wiki format was chosen "because we believe that these issues, far from being settled, require the attention of all working journalists. We hope our research and ideas will promote greater knowledge and more debate about the roles a journalist may play in producing news on matters of public interest."
 * An invitation to contribute**

Journalists and others with an interest in the craft are invited to contribute to the discussion by adding to and revising the wiki pages. The idea is that others will edit right back, and that the site will, in time evolve into a working, if always transitory, expression of consensus.

Please, join the discussion.

//Toronto media lawyer **Brian MacLeod Rogers**, an adjunct professor at Ryerson University, argued for a "responsible journalism" defence on behalf of an intervening coalition in the Grant v. Torstar case at the Supreme Court of Canada in 2009. **Ivor Shapiro**, a Ryerson associate professor, chairs the ethics advisory committee of the Canadian Association of Journalists and is the ethics editor of J-Source. Rogers and Shapiro co-taught the law and ethics course for Master of Journalism candidates during which the students created the "Elements of PIRC" wiki.//

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