The+right+to+reputation

__**Introduction to reputation**__

One’s reputation functions like an intangible identity document: when one’s reputation is “good”, it functions as a metaphorical passport, furnishing its holders the privileges of opportunity and respect not afforded to those whose are not held in such high esteem. Hence, it is seen as an egregious violation for a party to tarnish the name of another individual or group unless the offended party has committed misdeeds of which it was accused. Civil and criminal defamation laws, by design, protect the reputations of individuals, companies and legally recognized groups from being tarnished unfairly or unnecessarily. In the Supreme Court of Canada’s 1998 R. v. Lucas judgment, Justice Cory identifies how this protection is essential to ensuring that individuals can participate in a functional democracy: “The protection of an individual’s reputation from wilful and false attack recognizes both the innate dignity of the individual and the integral link between reputation and the fruitful participation of an individual in Canadian society” (R. //v//. Lucas, [1998] 1 S.C.R. 439, para 48).

However, there is a tension between the impetus to protect reputation and the //Charter//-enshrined right to free expression. Journalists, critics and legal scholars charge that pre-2009 libel laws favoured reputation, sometimes at the expense of journalists being able to freely report without fear of litigious intimidation. In the Supreme Court’s landmark 2009 //Grant v. Torstar// ruling, Chief Justice McLachlan concurs with the Torstar’s opinion that this legal regime had a deleterious effect on free expression in Canada and, in turn, on the health of our democracy: “This state of the law, [the Torstar] argue[s], unduly curbs free expression and chills reporting on matters of public interest, depriving the public of information it should have”. (Grant //v.// Torstar Corp., 2009 SCC 61, para 6).

__**Public Interest Responsible Communication defence** **and step** **for responsible** **reporting**__

The //Grant v. Torstar// ruling was designed to allow for a finer balance between protecting reputation and freeing journalists to inform the public on issues of public interest. It sets out an additional defence for defendants in libel cases, the Public Interest Responsible Communication defence. The new defence allows journalists to be “wrong” when reporting on issues of public interest, so long as she does her best to ensure the accuracy and fairness of her stories. Though the defence does a lot to free journalists to report more vigourously, it requires journalists to report conscientiously. It implores journalists to weigh the ethical consequences of putting into peril another person’s reputation and to determine whether the issue at hand is of enough importance to the public to justify publishing a potentially defamatory statement. This essay will discuss the ethical implications of exposing information about or vigourously criticizing story subjects, whether they are people who seek prominence in public life or those who avoid the spotlight. It will advise what considerations journalists should make when weighing the public importance of a story against concerns about hurting a story subject’s reputation.

**__Truth, in brief__**

A journalist’s first responsibility is to report truth. This maxim could not be more applicable to stories that could potentially implicate a person of wrongdoing. Kovach and Rosenstiel note that since investigative reporting often functions to “prosecute” those parties under journalist examination, “it carries a greater weight of responsibility, not only of verifications of fact, but also in sharing information about the nature of the sources of that information” (153). The //Grant v. Torstar// judgment echoes this sentiment – that stories that could implicate persons of power necessitate an extreme amount of care - despite its concession that journalist should not to be held to such a high burden of proof as before: “To insist on court‑established certainty in reporting on matters of public interest may have the effect not only of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate, but also of inhibiting political discourse and debate on matters of public importance, and impeding the cut and thrust of discussion necessary to discovery of the truth” (Grant //v.// Torstar Corp., 2009 SCC 61, para 53).

**__Issues of public interest__**

When reporting on an issue that could significantly harm another person’s reputation - particularly when the facts, though reliable, are not provable in court - journalists must establish what issues are of public interest. In his discussion of dealing with the ethical dimensions of reporting on privacy, journalism scholar Gene Foreman establishes three types of issues upon which journalists have a duty to report (and for which the journalist’s duty to report trumps the story subject’s desire for privacy), the public performance of public officials, crimes and accidents (231). For our purpose, the first two categories are of interest; the first pertains to the functioning of democracy, and the second relates to the security of citizens. However, the PIRC defence establishes that there are many more issues that are of public interest other than the prosaic concerns that Foreman mention "Public interest is not confined to publications on government and political matters, as it is in Australia and New Zealand. Nor is it necessary that the plaintiff be a ‘public figure’, as in the American jurisprudence since //Sullivan//. Both qualifications cast the public interest too narrowly. The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion, and morality. The democratic interest in such wide-ranging public debate must be reflected in the jurisprudence." (Grant //v.// Torstar Corp., 2009 SCC 61, para 106).

**__Evaluating one's own motives__**

A journalist must evaluate her own motives before she reports on a story that could harm anyone’s reputation. Every journalist knows intimately that there are personal and professional pressures that can cause journalists to neglect the ethical implications of their work. Hence, it is best for a reporter to try to anticipate potential ethical problems could come up while pursuing a particular story. A good place for a journalist to start is to investigate her biases and motives. After she identifies what her motives, she must decide whether they render her unsuitable to report on a particular story. She must not hold any malice for her story’s subjects; not only is setting out to damage a story subject’s reputation a reprehensible practice, it also cripples a journalist’s chances of defending herself in court against a libel suit should her report be found defamatory (Jobb 292). Additionally, a journalist ought not to attempt to assassinate the characters of people in power in order to make a name for herself. The need for approval, newsroom competition, and the desire for fame and fortune all motivate journalists to dream about sleuthing out a damning expose. And though these pressures are not wrong or invalid, they should not distract a journalist from reporting with care, especially when people’s reputations are at stake. Ultimately, ethically “impure” approaches function to impede journalists in their ability to discover and ascertain truth. And in turn, if the public perceives journalists to have ulterior motives, it will damage the reputation of all journalists.

**__Understanding the consequences of risking a subject's reputation__**

The most important step that a journalist should undertake before publishing a report that could be damaging is to anticipate the effect that that report would have on the subjects’ lives. Attempting empathy, though it is a concept that might not govern the day-to-day functioning of a newsroom, should be not anathema to journalists. The Society of Professional Journalists Code of Ethics beseeches journalists to “show compassion to those who may be adversely affected by news coverage,” including subjects (qtd. in Foreman 89). Risking others’ reputations, and by extension, their professional lives and personal relationships, is nothing to take lightly. And though some may levy that having empathy for a subject is journalist and functions as a limit to “objectivity”, measuring the impact your report will have on a subject is perhaps the best way decide whether the public importance of the justifies the release of potentially harmful information.

As part of the process of trying to empathize with story subjects, journalists must consider the position in society that the individual holds the story subject(s) holds. Namely, journalists should differentiate between how they treat the reputations of private individuals and those of public figures. For clues as to how to go about this process, we can look to the discussion of how journalists should treat issues of personal privacy. As media ethics scholar Candace Cummins Gaulthier (2010) puts it, “privacy is essential for our sense of ourselves as person and as self-determining moral agents, for…privacy is necessary for the confirmation of moral personhood” (216). As Chief Justice McLachlan notes in the //Grant v. Torstar// ruling, concerns about privacy and those about reputation are “intimately related” (though, laws protecting privacy usually deal with the revelation of true, but sensitive information, whereas, defamation law addresses damaging statements that are false) (Grant //v.// Torstar Corp., 2009 SCC 61, para 59). Notions of reputation and privacy are related, in part, because exposing private details about one’s personal life, whether or not they indicate any misconduct, can be harmful be extremely harmful to one’s reputation. Hence, while deciding whether she should publish potentially damaging stories, a journalist should treat subjects’ reputations in a similar manner to how she would treat privacy considerations.

__**Privacy and reptutation**__

The SPJ’s Code of Ethics dictates how journalists should treat privacy issues are applicable to the task of balancing the interests of the public and subjects’ reputation. It states that journalists, when reporting on private matters, should distinguish between private people and those who seek prominence in public life. Unsurprisingly, it dictates that a reporter ought to utilize more discretion when reporting about the personal lives of individuals who are not public figures than she would for a individual who is a public figure or who seeks prominence in the public discourse: “recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify an intrusion into anyone’s privacy” (qtd. in Gaulthier 218). Similarly, journalists should, under normal circumstances, be more cautious when dealing with the reputations of individuals who, through exercising their “right” to self-determination, opt to live their lives outside public scrutiny (unless, of course, the potential story subjects have committed one of the wrongdoings I established in the section on public interest).

The release of sensitive private information people who seek positions of power, influence or attention arguably offers trickier ethical terrain for journalists to navigate. The conduct of public officials and those who exert power over the realms of politics and business is necessarily of interest to the public. Hence, public figures sacrificed a certain amount of privacy when they entered a position of notoriety. It follows that the public has the right to know about the public performance of who a significant influence on the lives of others. Judging the perfomance of public figures often involves the disclosure of their private information. Gaulthier argues, if a journalist is justified in publishing information about a public figures private life if there is “significant connection between the private information being released or conveyed by an image and something about the individual in her role as a public official or candidate for public office” (223). Accordingly, in the Grant v. Torstar judgment, Chief Justice McLachlan acknowledges in the ruling that reporting vigourously on people in positions of power is not just perilous for those parties’ reputation, but also expected and necessary consequence of leading a public life: “People who enter public life cannot reasonably expect to be immune from criticism, some of it harsh and undeserved” (Grant //v.// Torstar Corp., 2009 SCC 61, para 58).

However, as Gaulthier mentions, public figures (along with their reputations) do suffer unnecessarily as a result of having details of their private lives exposed to the general public (some would even argue public figures have more to lose by being defamed than private citizens do) (222). The tendency for journalists to publish intimate details of public figures’ private lives has only intensified over the past thirty years. Journalism ethics professor Gene Foreman notes that journalists used to view the sex lives of politicians as off-limits for reporting. However, he said, over the past 25 years, journalists have more regularly reported about politicians’ sex scandals, concerns that many journalists would regard as outside of the public interest (237). This development is disturbing, though unsurprising, given the appetite that the public has developed for lurid details of personal lives of politicians and celebrities. Contrary to the beliefs of some journalists, these “invasions of privacy” //sometimes// service the public interest. For example, it //could// be appropriate to report a sex scandal involving a prominent politician, provided that politician ran on platform of family values (223). This would demonstrate that the politician is hypocritical, insincere or plain dishonest in his public presentation.

__**Conclusion**__

Admittedly, the sections that I have touched upon do not provide a specific measure of how to decide how whether an issue is of enough interest to the public to justify risking a subject’s reputation when the journalist cannot guarantee the facts are provable in court. This is because I do not believe that any such measure exists. The considerations I have mentions are just that: considerations. One has to take them into account, but ultimately, a journalist frequently uses her instincts to make their final decisions. After all, how can journalists approach having empathy for potential subjects without relying even a little bit on emotion and personal experiences? To deny this type of thinking is to neglect one of the journalists’ primary responsibilities, to address and explain the complexity of the human condition. And so long as those “gut decisions” are in fact made after thoughtful, reasoned reflection, a Canadian journalist who reports fairly and accurately can feel safer knowing that she has a legal defence that both protects and ensconces the principles of ethical journalism.

__**Works cited**__ Foreman, Gene. //The Ethical Journalist: Making Responsible Decisions in the Pursuit of News//, Madden, MA: Wiley-Blackwell, 2010.

Gaulthier, Candace Cummins. “Understanding and respecting privacy.” //Journalism Ethics: A Philosophical Approach.// Ed. Christopher Meyers. Oxford: Oxford University Press, 2010.

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

Jobb, Dean. //Media Law for Canadian Journalists//. Toronto: Emond-Montgomery Publications, 2009.

Kovach, Bill and Rosenstiel, Tom. //The Elements of Journalism: What Newspeople Should Know and the Public Should Expect.// New York: Three Rivers Press, 2007.

R. v. Lucas, 1998, 1 S.C.R. 439.

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