A sensational American libel case that has made its way into Canadian courts provides another reason why libel laws in this country must change. Back in September, 1983, NBC aired a series of reports. In those reports, the network quoted a source as saying that Bahamian Prime Minister Sir Lynden Pindling was allegedly on the take from drug dealers. That sparked a furore both in the United States and the Bahamas, and Pindling reacted by appointing a royal commission to look at drug trafficking and money laundering in his island nation.
The commission published its report in 1984 and completely exonerated Pindling of drug connections. However, it did comment on his source of funds. “It is apparent that the Prime Minister’s expenditure over the years from 1977 has far exceeded his income,” said the report. “However, none of the known sources of funds made available to him appear to have been drug related. As to the unidentified deposits, the sources of which are still unknown, all that can be said is that there is no evidence before the Commission upon which we can form a conclusion as to whether or not these unidentified funds were drug related.”
In 1987, Pindling won re-election handily. But, in 1984, he had also sued NBC for libel in Bahamian courts. NBC refused to show up for that lawsuit— and Pindling won an undefended judgment against the network, although the court did not award any damages. Then, Pindling, who clearly received some excellent legal advice, brought his case to Toronto in May, 1984, claiming $4 million in damages and becoming the first foreign plaintiff to take advantage of Canada’s oppressive libel laws to successfully haul the U.S. media before the courts.
The case is now in examination for discovery, with the two sides exchanging documents and proceeding with oral examinations of witnesses. But Pindling clearly chose Ontario courts for two reasons. The province’s Libel and Slander Act—and indeed the libel acts in all provinces—puts journalist-defendants at a distinct disadvantage over plaintiffs. And, secondly, because NBC’S airwaves bombard Canadians daily, Pindling could sue NBC in Canada because the alleged libel was also committed in this country. At the same time, Pindling also sued 17 Canadian cable companies
that carry the NBC signal—although many of those suits have since been dropped.
In Canada, there are three primary defences for publishing a libel: that the statements were true, that they were committed in a “privileged” situation such as in Parliament or during court testimony, or that the statements were “fair comment” at the time. That means that the statement, however extreme, was based on fact and published in the public interest. As I have written before, Canadian libel laws impose an unfair reverse onus on journalists. It goes without saying that libel is unjustifiable and is journalism’s equivalent of malpractice. But, unlike cases of medical malpractice, the onus is on the accused journalist and his publication or station to disprove the allegations against him. When a doctor is sued for malpractice,
The Bahamian prime minister could sue NBC in Canada because the alleged libel was also committed in this country
the plaintiff must prove incompetence or negligence.
It is small wonder that Pindling chose to sue in Canada. In the United States, there is no reverse onus. Libel plaintiffs must not only prove that a libel or damaging inaccuracy was committed, but that, in the case of a public figure, it was published with malice. As well, there has also been some protection for confidential sources south of the border, depending on the case, and that protection makes it difficult for plaintiffs to prove that the source or reporter was malicious, sloppy or both. In Canada, it is not necessary to prove malice to win a libel case—and it is more difficult to protect confidential sources.
During the court proceedings, NBC’s lawyers may argue that the courts must protect a confidential source who provided the Pindling story to the network. At the same time, they are clearly awaiting the outcome of a case involving The Edmonton Journal versus the Alberta Labor Relations Board. In 1985, the Journal published a story about attempts to unionize Hudson’s Bay stores in Edmonton and nearby St. Albert. Six store employees were dismissed after the article appeared, and the United
Food and Commercial Workers’ Union, claiming that the dismissals were related to the story, demanded that the newspaper reveal its sources. The Journal refused, and, after lesser courts ruled in the union’s favor, the case will be heard by the Supreme Court of Canada. The Journal argues that freedom of the press is only worthwhile if the press has access to sources—which is meaningful only if sources are extended protection.
Naturally enough, NBC was upset at being sued in Canada, not only because it feels that it should be tried under U.S. libel laws, but also because the identity of its fellow defendants—Canada’s cable companies—has added insult to injury. Ironically, NBC has sued Canadian cable companies over the years for copyright infringement because the U.S. networks have long decried what they say is the commonplace practice among Canadian cable companies of capturing and rebroadcasting U.S. programs without paying any royalties.
A side issue to all of this is the fact that the NBC-Pindling tangle virtually undermines the hard-fought freedoms that the U.S. media have won. In fact, the network’s Canadian lawyers filed a motion in November, 1984, to have the libel case dropped on the grounds that the case should not be heard in Ontario. But the Ontario judge who presided over the hearing dismissed the motion. He reasoned that no matter how the airwaves were beamed into Canadian living rooms, the alleged libel had also been committed in Canada, and that Canadian libel laws applied. And, he said, by not appearing for the Bahamas lawsuit, NBC had effectively forced Pindling to sue elsewhere.
Given how many U.S. broadcasts and publications are available here, I have no doubt that others will take advantage of the situation. Canadian libel experts are already being consulted by the U.S. media about explosive stories. This is a gigantic loophole through which anyone can pass, thus cluttering up our crowded court system with foreign grievances. Canadian lawmakers must realize that a free and unfettered press does not mean scurrilous reporting but a more vigilant society. Reverse onus and the absence of protection for sources muzzle the media. To remove them does not open a Pandora’s box of abuse but merely allows the media to play its necessary role in a democracy.
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