MEDIA WATCH

The Fourth Estate and libel chill

One reason for the recent outcry from the media about the law may be a simple case of self-interest—and some hefty suits

GEORGE BAIN May 27 1991
MEDIA WATCH

The Fourth Estate and libel chill

One reason for the recent outcry from the media about the law may be a simple case of self-interest—and some hefty suits

GEORGE BAIN May 27 1991

The Fourth Estate and libel chill

MEDIA WATCH

GEORGE BAIN

A new group, Writers to Reform the Libel Law, has set out to persuade the government of Ontario that the province’s laws of libel and slander are “outdated, unworkable and unfair” and have to go. They have issued a manifesto in which they say in the preamble: “We believe that free expression of ideas, the free flow of facts, is what makes a democratic society possible; we also believe that this free flow is what a democratic society is for. The current law puts freedom of expression in jeopardy.” Could any media person say less than that— permitted just a small quibble over whether it isn’t overstating matters to elevate freedom of expression to what a democratic society is for, rather than leaving it simply as a constituent element? And permitted, too, the mild observation that, while a free flow of facts certainly is A Good Thing, what is at issue in most libel actions is not so much the flow of facts, but whether the facts are really facts? And, again, permitted to question if freedom of expression is as endangered as they make out?

In a just-published book, The Fourth Estate and the Constitution: Freedom of the Press in America, Lucas A. Powe Jr., who teaches in both the law school and the department of government at the University of Texas, begins his chapter on libel with these words: “As measured by ink spent, no legal issue so infuriates the press as does libel.” He says later: “For all the written words, libel is all but an insignificant blip in the statistics of American courts. We just read more about it because it affects the press, and the press assumes, with becoming myopia, that anything that affects it is important to us, too.”

Extrapolating anything Canadian from American evidence is a dubious journalistic practice. But observation says that the blip libel makes in our court statistics is no more significant. What is certain is that we hear a good deal about what libel actions there are, and for the reason Powe gives—media fascination with media interests. What is also true is that we are

One reason for the recent outcry from the media about the law may be a simple case of self-interest—and some hefty suits

hearing more and more about the illiberally of the present law and the chill effect it is alleged to have on vigorous journalism, with a consequent effect on democracy itself.

One reason for the current outcries about a supposed chill may be a few recent largish libel suits. Another surely is that a constitutional right of freedom of the press—as distinct from a common-law right—is new here since 1982. There has been consequent media interest in seeing the parameters of that constitutional freedom set as wide as possible.

The first complaint of the Writers to Reform the Libel Law is that there is no definition of libel, no definition of reputation and its worth, no guidelines to say which complaints are trivial and which are worth a court’s time. From a less self-centred viewpoint, the latter parts of that might be seen as uncertainties incapable of being resolved—and not just in libel suits—except in the legal process itself. As to defining the thing itself, John J. Robinette, one of Canada’s leading counsel, once recited to a newspaper group this classic definition: “Any printed words . . . which tend to lower a person in the estimation of rightthinking men, or cause him to be shunned and avoided, or expose him to hatred, contempt or

ridicule, or disparage him in his office, trade or calling, constitute a libel.” The law, he said, “proceeds on the theory that every person has a legal right not to have his reputation wrongly injured. ...”

He went on to say: “Of course, a true statement of fact is not actionable, but unfortunately, in our law, the onus is on a defendant in a libel action to prove that the statement of fact is true.” The writers group goes far beyond complaining about that so-called reverse onus, and asserts flatly that “truth is no defence.” That not only contradicts Robinette, but most people who write about the subject. Clare Beckton, a former professor at Dalhousie University’s faculty of law, said in The Law and the Media in Canada (1982): “Justification is the defence which maintains that the words which were published were true in substance and in fact. It is an absolute defence and will not even be defeated if it is shown that the words were published with malice.”

Having said their dissenting piece on truth as a defence, the writers also suggest—before setting out what they think a new libel law should contain—that no new libel law is needed because there are already laws in Ontario against malicious falsehood. If taken seriously, as not even they seem to do, that would leave a party claiming defamation having to prove not only that a statement was false, but also that it occurred through malicious intent. In those circumstances, getting redress for just about anything written or spoken would be a forlorn hope.

The landmark decision of the U.S. Supreme Court in The New York Times vs. Sullivan did just about that concerning at least public officials in 1964. As Powe comments in his chapter on libel, “In its early days, the ‘actual malice’ standard seemed high enough to preclude all but a minuscule number of judgments.” But later judgments by courts still striving after the right balance between a constitutional right of freedom of expression, and the private right not to have a good reputation blackened, somewhat moderated the 1964 effect. Nevertheless, in the process the burden of proof placed on the media to prove truth when challenged in court disappeared.

It is not an original thought here, but one plucked from Richard Kluger’s 1986 book, The Paper: The Life and Death of the New York Herald Tribune, that the reason for the so-called reverse onus was not “a jurisprudentially unsound one.” The argument had been made ages earlier by the Herald Trib’s own lawyer, E. Douglas Hamilton, who lost only one libel case in 29 years. In a co-authored book, Libel: Rights, Risks, Responsibilities, he depicted the publisher of an alleged libel standing in the shoes of a prosecutor. The libel, if there was one, consisted of someone’s being accused in public of bad conduct. Therefore, the traditional presumption of innocence until proven guilty should lie in favor of the individual against the media entity.

It’s a thought—not that the Writers to Reform the Libel Law are likely to waste much time on it, having decided that, with everyone’s reputation safe in their hands, Ontario could get by even with no libel law at all.