COLUMN

Warming up to fight libel chill

Diane Francis March 28 1988
COLUMN

Warming up to fight libel chill

Diane Francis March 28 1988

Warming up to fight libel chill

COLUMN

Diane Francis

Libel chill has hit the National Business Writing Awards as many of Canada’s most important journalists boycott this year’s affair. As a former winner, I am upset by the protest because it means that these distinguished awards will be meaningless this year with most prominent publications and journalists having pulled out. But as a member of the fourth estate, I’m happy the boycott has occurred if for no other reason than that it might lead journalists to unite against what is known in newsrooms as “libel chill,” a disease of epidemic proportions caused by a combination of unjust laws and worries about lawsuits.

At stake is not the right to libel someone. Libel is journalism’s equivalent of medical malpractice —sloppiness or recklessness which is not truthful and which damages someone financially. There are valid defences for publishing a libel in Canada. Among them: if the libel was made in what is known as a “privileged” setting, such as Parliament or in a courtroom; or if the remark in question can be demonstrated to have been fair comment at the time. In any other context it is totally unjustifiable and should remain a culpable act. What is being underscored now is the fact that, faced with the continual possibility of libel suits, a journalist does not enjoy the freedom to ply his trade—a freedom that the law is supposed to guarantee.

The boycott began in February when two of the awards’ 26 judges quit in protest after the organizers rejected as a submission a controversial Toronto Life magazine article by Elaine Dewar about Toronto’s wealthy Reichmann family. Dewar and the magazine have been sued for libel by the Reichmanns. I was also sued following a review of Dewar’s article that I wrote in The Toronto Sun, and The Globe and Mail was sued over an article about the two lawsuits.

The upshot of all these Reichmann actions was that the awards organizers decided to obtain a legal opinion on whether or not to admit Dewar’s piece to the competition. According to that opinion, it was risky to accept the piece because of the libel action by the Reichmanns. Under Canadian laws, anyone who repeats a proven libel may also be found guilty of libel. And it was felt that to have judges read the article might constitute “republication” of the alleged libel. However, some libel experts and other observers feel that it is

highly debatable that having a handful of judges read a published magazine article constitutes republication.

The real issue underscored by the boycott is the fact that in this country any journalist sued for libel is guilty until he proves himself innocent. And even if found innocent, journalists are subjected, along with their publications or networks, to enormous expense and heartache.

This is all due to what is known in legal circles as “reverse onus.” Defendants in libel cases must prove that what they said about a plaintiff—the alleged libel—was in fact either true or fair comment. Blatantly unfair, this principle is finally being tested in Canada as a result of another high-profile libel action, that of former defence minister Robert Coates, who is suing The Ottawa Citizen over a number of

Even if found innocent of libelf journalists and their publications are subjected to enormous expense and heartache

stories following his visit to a German nightclub.

In addition to a traditional defence against Coates’s libel suit—attempting to prove that what they reported was true—the Citizen brought a separate pretrial motion to court. It has challenged Canada’s libel law, arguing that it contravenes the provisions, enshrined in Section 2 (b) of the Charter of Rights and Freedoms, that protect freedom of the press and freedom of expression. According to the Citizen’s argument, the current law constrains the media by requiring them to prove the truth of anything said about the conduct of public officials relating to their public office.

That requirement gives many journalists and their publishers pause—even when there is plenty of proof around. In Canada, for instance, The Financial Post survived one 1979 libel action but spent about $600,000 doing so. The case was eventually dropped by plaintiff Allen Manus after the trial had begun. But along the way the Post had flown witnesses in from around the world at enormous cost to prove Manus’s allegations incorrect. Costs and legal fees were never fully recovered.

The job of journalists is made much easier in the United States. There, a legal argument, based on the First Amendment of the U.S. Constitution, which protects the freedoms of speech and of the press, resulted in an important Supreme Court decision. Because of that 1964 ruling, public officials claiming that they have been libelled about their activities in public office must prove that the statements were false— and that whoever made the statements either knew them to be false or recklessly disregarded whether or not they were false.

The Citizen wants Canada’s law to be changed to mirror that constitutional libel standard set in the United States. The paper’s lawyers want the onus to be put on Coates to prove the following: that what the Citizen published about him was false; that the paper printed the stories either knowing they were false, or with reckless disregard as to whether they were or not (often referred to as malicious intent); and, lastly, that Coates himself suffered actual damage as a result. If the judge agrees with this bold pretrial motion, then the Coates case would be tried on that basis. It would be a landmark decision for Canada.

The business awards boycott is unfortunate, tainting an otherwise worthy contest. But along with the Citizen’s battle, it is a manifestation of a growing concern among journalists about their rights. No one is defending the right to libel someone—any more than one would defend a doctor’s right to commit malpractice. Or a lawyer’s. But the question is, how many stories of importance to the public have been censored by cautious editors and even by reporters themselves—the worst symptom of libel chill—simply due to the reverse onus requirement in our libel cases?

Some people are concerned that the removal of reverse onus from our libel law would unleash a torrent of scurrilous stories and yellow journalism. That is as spurious as arguing that an epidemic of medical malpractice must be the logical result of the absence of reverse onus upon physicians who face the charge. Persons or publications who truly libel someone would still be sued successfully in Canada. The awards boycott illustrates how current laws “convict” journalists until they prove themselves innocent —and that, unless courts change this, the basic economic right that every citizen has to make a living without harassment is myth.