Defamation Law for Journalists - Journalism Media Law

Defamation Law for Journalists Media Law Classes 5 & 6 Sept. 30, 2014 & Oct. 7, 2014 UBC Graduate School of Journalism Jon Festinger, Q.C. Centre for Digital Media Festinger Law & Strategy http://videogame.law.ubc.ca @gamebizlaw [email protected] *Based on materials originally prepared by Dan Burnet, Q.C.

What is a Defamation? A simple non-legal definition: SAYING SOMETHING BAD ABOUT SOMEONE Magic is in the DEFENCES àààààà

(PERSONAL) HISTORY: DEFAMATION LAW Part 1

(PERSONAL) HISTORY: DEFAMATION LAW Part 2

The Kicker

Most significant local current case: Furlong v. Robinson; Robinson v. Furlong

http://www.theverge.com/2014/7/16/5904491/imprisoned-former-dictator-manuel-noriega-sues-activision-over-call

An “interesting” case

King’s Courts acquired jurisdiction over defamation in the later half of the 16th century

Previously reputation protected by seignorial and ecclesiastical courts

http://www.jstor.org/stable/1109121?seq=1

REAL HISTORY OF DEFAMATION LAW

Before Defamation there was “dueling”

HOW WEIRD?: Truth (Justification) is not, everywhere & always, a defense “In ruling that Philippine criminal libel law was inconsistent with freedom of expression, the UN Committee on Human Rights recalled its General Comment 34, which reads: “Defamations laws should not . . . stifle freedom of expression . . . Penal defamation laws should include defense of truth.”

http://web.archive.org/web/20130509133717/http://www.manilatimes.net/index.php/news/top-stories/16100-libel-law-violates-freedom-of-expression--un-rights-panel

Defamation is class made & class reinforcing law

Code words To look for: Honour Reputation Damages

The Big Picture •  Defamation is a negative statement

or implication about a living person or company

•  Spoken version is slander •  Printed or broadcast version is libel •  Civil tort – historically criminal –

crime still on books: Code s. 301 •  Common law defines principles; Libel

and Slander Act governs certain procedures

Criminal Code S. 302 Defamatory libel

You Know More than You Think Are these defamatory? If so, are they

nevertheless legally OK? Why? •  “Conrad Black is a criminal” •  “Dion said in Parliament that the Prime

Minister is incompetent” •  “The Canucks played like babies” •  “Jon Festinger is an Olympic athlete” •  “CBC has learned of a police officer

who has been taking bribes”

Basics of Defamation (pre-defences) •  Three Elements: 1. Negative

Statement; 2. Identity; and 3. Publication

•  Purpose is protection of reputation •  Presumption of falsehood (Journalist

move prove truth) •  Presumption of damages

Basics of Defamation (pre-defences) •  Three Elements: 1. Negative

Statement; 2. Identity; and 3. Publication



Element 1: Defamatory Meaning •  Defamatory meaning is one which is “to

the plaintiff's discredit” •  Almost anything negative •  Courts look for what a reasonable and

fair person would understand from the words and their natural impressions.

•  Reasonable people do read between the lines but they don’t strain for the worst meaning.

•  But…who is “the man on the Clapham omnibus” today?

"1. The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years. 2. The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias...” Healthcare at Home Limited v. The Common Services Agency [2014] UKSC 49 BUT WHO WOULD THAT BE IN TODAY’S DIGITAL WORLD?

Defamatory Meanings Example 1: “Doug and his WCC slugs” Christie v. Geiger, 1984 1252 (AB QB) “So Doug Christie and his group of misfits known collectively as Western Canada Concept (WCC) plan to run a candidate in Olds-Didsbury once a provincial by-election is called. There could not be better news for Canadians who want to rid themselves of this collection of throwbacks. For close to a year we have seen publications like Alberta Report give these losers some credibility: they have actually taken seriously the right-wing rantings of WCC’s Christie and West-Fed’s Elmer Knutson. They made it appear that Western separatism was fairly wide-spread — when in reality it is just an Alberta version of the Ku Klux Klan. If Doug and his WCC slugs attract any votes at all in Olds-Didsbury it will be from the lunatic fringe, and perhaps a couple of farmers who have spent too many summer days in the hot Alberta sun. Separation in Alberta was never a mass movement. It just made for good conversation at business luncheons.”

“All of the evidence led by the parties demonstrates exactly the opposite. There was no association or similarity in activities or beliefs of the plaintiff or W.C.C and the Ku Klux Klan. Indeed, expert evidence described the Ku Klux Klan as preaching hatred of Roman Catholics and blacks. The plaintiff Christie is a practising Roman Catholic. The declared policies of the W.C.C. and its forerunner, the Committee for Western Independence, consistently discuss economic and political issues without any racial, ethnic or prejudicial overtones. Evidence led of the plaintiff Christie’s personal beliefs, conduct and actions would lead one to the conclusion that he is a very sincere individual who clearly demonstrated on numerous occasions that he would not tolerate prejudicial or racial comments to be made at W.C.C. meeting. He demonstrated admirable tolerance of dissenting and often unfair and disruptive comments made at the meetings of the W.C.C. The defendants have failed to show the allegation of fact to be accurate.”

http://www.canada.com/story.html?id=e4d381b3-ed79-423f-8358-a8984e843c97

On the other hand…

Ross v. Beutel (2001) 201 DLR (4th) 75 (NBCA): Reasonable readers understand cartoons are exaggerations. Trial judge erred reading the comparison too literally. Fair Comment succeeded. Compare to Christie v. Geiger?

http://news.google.com/newspapers?nid=1946&dat=19860121&id=LRgiAAAAIBAJ&sjid=7aUFAAAAIBAJ&pg=1020,478364

Defamatory Meanings Example 2:

Hunter and Swift v. Fotheringham et al (1986) 360 (B.C.S.C). “Fotheringham wrote that Swift and Hunter, who he said were rising in the pecking order of Vancouver law firms, had been "cementing their connections through the lawn–tennis circuits and wife–swapping brigades.” Fotheringham later apologized for the remarks and said during the trial that the column was humorous and was not intended to defame Swift and Hunter. Peter Butler, lawyer for Swift and Hunter, argued during the trial that the column was defamatory because it suggested his clients were wife-swappers or associated with wife-swappers.”

“I’m famous for having been sued for libel 26 times and for winning 24 of those cases,” the 79-year-old writer said in the book-lined living room of the Rosedale home he shares with his second wife, Anne. “That’s a pretty good batting average,” he added, implying that he’d rather not spoil a near-perfect game this late in the season by laying bare too many deep secrets, and risking the wrath of those in the Canadian political and business establishment whose candour has provided froth for his tens of thousands of dispatches.

Defamatory Meanings Example 3: Grassi v. WIC Radio Ltd.

• “Between Phillip Eugene Grassi, plaintiff, and WIC Radio Ltd., carrying on business as CKNW/98, Yvonne Eamor, Southam Inc., carrying on business as The Province, Stuart Hunter, Vancouver City Police Inspector Ken Doern, Vancouver Police Department, and City of Vancouver, defendants” 2000 BCSC 185 • “Doern says it is hoped by [naming] the men they will think twice before trying to buy sex from children. 49 year old Phillip Grassi of North Van is a Vancouver firefighter and he has been charged with communicating for the purpose of engaging in prostitution…” •  Assume both sentences were individually true. What unspoken impression is given by linking them?

From the Judgment: http://www.laxtongibbens.com/cases/Defamation/GRASSI.pdf

“22 It is common ground that at no time whatsoever was there any factual basis for believing or suspecting that, on the night of April 2, 1997 (or on any other occasion), Grassi had sought the sexual services of a person who was, or whom he believed to be, under 18 years of age. That is to say, none Page 12 of the defendants advances justification or truth as a defence to Grassi's assertion that he was defamed by such an imputation. What each of the defendants does say is that the published words do not carry such an imputation. 23 It is also common ground that, prior to publication of the statements alleged to be defamatory, none of the Media Defendants or anyone on their behalf contacted, or attempted to contact, Grassi to verify their news stories… 101 The action against Doern, the City of Vancouver and Hunter is dismissed. Eamor and CKNW are jointly and severally liable for compensatory damages in the amount of $35,000. The Province is liable for compensatory damages in the amount of $45,000. If necessary, the parties may speak to costs.”

Basics of Defamation (pre defences)

•  Three Elements: 1. Negative Statement; 2. Identity; and 3. Publication



Element 2: “about the Plaintiff” •  Words which identify the plaintiff directly or

by implication, or even narrow the group too closely are sufficient:

•  Group libel - Gauthier v. Toronto Star (2003) 228 DLR (4th) 748 (news story on racial profiling by Toronto Police – libel suit by all members of police department dismissed)

•  However “at the very top of the police department” is a small enough group.

Where not about the Plaintiff at all…

Context…

http://www.canada.com/vancouversun/story.html?id=1a9c765a-0d68-4d0e-ad32-3e148bd6992e

http://www.grabnewsmuseviews.ca/mar08/fulton.html

Basics of Defamation (pre defences)

•  Three Elements: 1. Negative Statement; 2. Identity; and 3. Publication



Element 3: Publication

• Publication must be a communication of the defamation to a third party

• Who is a publisher? “If one person writes a libel, another repeats it, and a third approves what is written, they have all made the defamatory libel.”

• What about Internet Service Providers? Forum operators? Wikipedia? Google?

Cherneskey v. Armadale Publishers Ltd. [1979] 1 S.C.R. 1067; Examine from a digital age perspective.

•  An alderman in Saskatoon brought a defamation action against a local newspaper who had published a letter to the editor written by two law students criticizing the alderman for supporting the creation of an Alcoholic Rehabilitation Centre in a residential section of Saskatoon.

•  6 to 3 decision finding that the “fair comment” defence did not apply when the editors did not themselves agree with the sentiments contained in the letter and when there was no evidence the letter was in good faith.

•  “The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments is as wide as, and no wider than, that of any other subject. No privilege attaches to his position.” http://www.canlii.org/en/ca/scc/doc/1978/1978canlii20/1978canlii20.html

“ The law laid down by the Cherneskey case places a publisher in greater jeopardy for publishing opinions of others, which it does not share, than for publishing opinions of others which it does share. There is no justification for a legal distinction that results in protecting the dissemination of opinions of those who control the means of widespread dissemination, and inhibiting the dissemination of opinions of those who do not. Such a distinction discourages, rather than encourages, the open discussion of ideas.”

http://www.alri.ualberta.ca/index.php/publications/Law/tort/defamation-fair-comment-and-letters-to-the-editor-

Cherneskey faded out

http://pi.library.yorku.ca/ojs/index.php/sclr/article/viewFile/34806/31615

Internet Issues •  Who is a “publisher” – Hill v Scientology says

anyone who writes, approves or publishes. Does this apply to an ISP? A hyperlink?

•  Godfrey v. Demon Internet [1999] EWCH 244 (QB) knowledge = liability

•  Can this be abused? •  USA immunity for “interactive service

providers” (ISP’s) under the Communications Decency Act

Canada & ISP Liability •  In Canada there are few cases & no legislation

regarding internet service provider liability for defamation.

•  Carter v. BC Federation of Foster Parents Association, 2004 BCSC 137, approved Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991) and Lunney v. Prodigy Services Company 94 N.Y.2d 242 (1999 NYCA). “Editorial control test” adopted.

•  As well there is the defense of innocent dissemination from Vizetelly v. Mudie’s Select Library Ltd., [1900] 2 Q.B. 17.

The “Problem” of Internet Anonymity

Recap: Key Things to Know about Defamation (pre-defences)

•  General Impression Governs - there is no defence of “unintended meaning”

•  Negligence or Fault Not Required - Reformed under First Amendment in USA

•  Liability for quotes and attributions - repeating a libel is a libel

•  Damages are Presumed - $1.6 M in Scientology with no proof of reputational loss

Finally…THE DEFENCES

•  1. Truth •  2. Fair Comment •  3. Responsible Communication •  4. Privilege •  5. Qualified Privilege •  6. Consent

THE DEFENCES

•  1. Truth •  2. Fair Comment •  3. Responsible Communication •  4. Privilege •  5. Qualified Privilege •  6. Consent

Truth – “The Defence of Proof” Is it a statement of fact? If so: •  Onus is on defence to prove it •  Hard to prove sinister motive •  Can you rely on source to testify? •  Does the source have the proof? •  Documents or independent

evidence?

The “Substantial Truth” Test •  CBC reported Janice Miller took her

children to white supremacist events wearing pint-sized KKK uniforms

•  The uniforms could not be proven, but ample evidence of taking children to Aryan Nations events with cross burnings

•  Report held to be substantially true and action dismissed

•  Miller v CBC, 2003 BCSC 258

THE DEFENCES •  1. Truth •  2. Fair Comment •  3. Responsible Communication •  4. Privilege •  5. Qualified Privilege •  6. Consent

Fair Comment •  It must be a “comment” – opinions, deductions,

inferences – matters that cannot be objectively proven

•  Must be an opinion a person could honestly believe (NOT “the man on the Clapham omnibus” )

•  On a matter of public interest (NOT “interesting to the public”)

•  Based on true facts •  No malice or recklessness

Comment can be harsh & quite “unfair” but will be protected if the test is met

Vander Zalm v Times Publishers (1980) 109 DLR (3d) 531 (BCCA)

Cartoonist testified he believed Vander Zalm was a cruel man based upon insensitive public statements he had made. Fair Comment succeeded.

Vogel v. CBC, 1981 564 (BCSC) http://www.canlii.org/en/bc/bcsc/doc/1982/1982canlii801/1982canlii801.html

The Story: "A CBC Evening News investigation has turned up evidence that British Columbia's Deputy Attorney-General, Dick Vogel, has used his position to influence the course of justice to help friends and associates.” HOW COULD THE CBC KNOW THIS AS FACT? COULD THEY READ THE DEPUTY AG’S MIND?

Fair Comment & Free Speech “We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones”: landmark 2008 Supreme Court of Canada decision, WIC v. Simpson, endorsed wide protection for free expression of opinions. "…fair comment is one of the essential elements which go to make up our freedom of speech." Lord Denning, Slim v. Telegraph.

WIC Radio Ltd. v. Simpson •  Kari Simpson was an anti-gay rights activist

who brought a defamation suit against Rafe Mair/CKNW.

•  Mair criticized Simpson for her opposition to the presence of “gay lifestyle” in B.C. public schools on his radio program. Mair compared Simpson to Adolf Hitler and former Alabama Governor George Wallace to name a few among others.

•  The comments were found to be defamatory at trial; however the defence of fair comment succeeded.

•  The Court of Appeal overturned the trial judge’s decision holding that the fair comment defence did not succeed.

•  CKNW & Mair appealed to the Supreme Court of Canada.

WIC v. Simpson: SCC decision “The function of the tort of defamation is to vindicate reputation, but many courts have concluded that the traditional elements of that tort may require modification to provide broader accommodation to the value of freedom of expression. There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Investigative reports get “spiked”, the Media Coalition [of intervenors in Mair] contends, because, while true, they are based on facts that are difficult to establish according to rules of evidence. When controversies erupt, statements of claim often follow as night follows day, not only in serious claims (as here) but in actions launched simply for the purpose of intimidation. Of course “chilling” false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements” http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/5670/index.do


Responsible Communication •  Canadian Courts have added a defence

called “responsible communication” •  Requires (1) the story must be of public

interest ; and that… •  (2) the story was handled “responsibly”

according to several factors – e.g. putting the allegations to the person affected

•  Focus is on journalistic practises

Responsibility Factors •  Seriousness of the allegations •  Public importance of the story •  Urgency of the story •  Status and reliability of sources •  Seeking and reporting both sides •  Whether the inclusion of the

statement was justifiable

Reportage (a subset of “Responsible Communication”)

•  Responsible communication can apply if the fact of the statement is of public interest and it was said to be unproven and both sides were reported.

•  This exception to the “repeating a libel is a libel” rule is called reportage

Evolution from Hill v. Scientology? •  Scientology hired counsel to file motion accusing

prosecutor of contempt •  Their lawyer reads motion to media on court steps •  Privileged situation defeated by malice and knowing

falsehood •  SCC rejects opportunity to adopt NY Times v. Sullivan •  $1.6 million damages upheld despite no proof of injury

to reputation

Hill v Scientology: A tough case to adopt NY Times v. Sullivan

http://www.wired.com/2009/05/wikipedia-bans-church-of-scientology/


Privilege (“Absolute Privilege”) •  Lawyers in court, Parliamentarians,

participants in public hearings enjoy privilege for their words

•  Extends to communications necessary in the process such as witness statements given to prosecutors or professional bodies

•  Media has privilege for accurate and fair reports of official proceedings


Qualified Privilege •  Applies to “near privilege” in official

proceedings such as reporting on court documents

•  Applies where there is a duty or interest in making the communication and in the recipient getting it.

•  E.g. reporting suspected grow operation to police which turns out to be false.

•  “To the world publications” usually not protected

http://caselaw.canada.globe24h.com/0/0/british-columbia/supreme-court-of-british-columbia/1983/07/29/camporese-v-parton-1983-499-bc-sc.shtml

“Tainted” canning lids (that were not “tainted”)

“While I have found Mrs. Parton wrote the article of 25th August 1977 without adequate research and with untimely haste in the circumstances, I do not consider this conduct was so unreasonable as to displace or rebut Mrs. Parton's honest belief in the subject matter of the article or to vary the primary purpose for which she wrote the article; that is, to inform her readers of her concern for the risks, including botulism poisoning, which she believed were associated with the use of defective Metro canning lids…I find that the defendants are entitled to the protection of the privilege.”


Consent •  One of several reasons reporters put the

story to the person it is about •  They may talk about it and they are

deemed to consent to publishing their own own words

•  E.g.: “I’m sick of being called a crook. I am not a crook.”

•  BCTV – “Knight St. Pub” counsel letter

& One More Thing: Apologies •  Apologies must be a genuine

acknowledgement and correction of error and expression of regret

•  Apologies must reach same audience

•  Apologies mitigate but do not generally erase damages

•  Cannot take opportunity to attack or repeat libel; cannot be half-apology

Summary • Elements of Publishing, Identifying, Discrediting

• Defences of Truth, Fair Comment, Responsible Communication, Privileges

• Role of apologies • New challenges over who is liable, forum shopping, even what is publication?

ALL A MATTER OF PERSPECTIVE

Thanks for Listening

Always include a cat picture