The chill of a media apology

GEORGE BAIN March 25 1991

The chill of a media apology

GEORGE BAIN March 25 1991

The chill of a media apology



Three years and three months after Toronto Life published “The Mysterious Reichmanns: The Untold Story,” the legal struggle that followed came to an end—in an out-of-court settlement and a full-page statement by the magazine, the first item in the March issue, of a retraction and abject apology. Forget that the Reichmann family and the family firm, Olympia & York, had sued, seeking a backbreaking $102 million in damages for defamation. Forget that the magazine, “at the request of the family and Olympia & York,” would make “substantial donations” to four institutions. The very thought of having to put one’s name to such an apology would be enough to give most writers, editors and publishers the cold sweats.

The article, it said, incorporated many allegations and insinuations about the Reichmann family which “we [the magazine] intended to and believed” had been thoroughly dismissed "... as there was no reasonable basis for them.” Now, it was realized that “none of the allegations and insinuations should ever have been raised.” More than that, the statement said that mistakes were made in writing, editing and presentation, and that “we should have been much more rigorous in that process and more precise in our conclusions,” and that “any and all negative insinuations and allegations in the article... are totally false.” Finally, the magazine said that it sincerely regretted having published what, in any way, could have undermined the enviable reputation of the Reichmann family. The statement was signed by Michael de Pencier, Elaine Dewar, Marq de Villiers, Stephen Trumper—respectively, president of Toronto Life Publishing Co., writer, editor and managing editor.

It is from apprehensions raised by court awards in the millions, or, as in this case, the necessity of accepting public humiliation in expiation of one’s sins, that the term “libel chill” comes. It implies that fear of legal action may cause stories that ought to be told in the public interest not to be told. Because the libel

Journalists say that the onus should be on the party claiming to have been defamed to prove that what was said was not true

suits that can be deadly arise mainly with wealthy corporations or prominent individuals, with correspondingly large sums demanded, libel insurance is common nowadays. But it by no means guarantees peace of mind. Toronto Life had $1 million worth of libel insurance; it ran out last summer.

One of the arguments that media people make when libel chill is discussed is that, in order for the media defendant in a libel action to use the defence of truth—the surest there is—it must be prepared to prove truth; instead, the onus should be on the party claiming to have been defamed to prove that what was said was not true. In an affidavit given in the course of another libel action, in 1987, Thomas Kent, chairman of the 1980-1981 Royal Commission on Newspapers, said that the guarantee of certain fundamental freedoms in the 1982 Charter of Rights and Freedoms logically demanded that the order be reversed.

“The guarantee of freedom of expression,” he said, “obviously does not mean any expression is legitimate, whatever its effects on society and individuals. But it is not a guarantee unless it means that the presumption about any

particular expression is that it is legitimate____

The burden of proof must always rest with the

person who claims that what was expressed

should not have been____” Kent went on to say

that this would in no way diminish the obligation to be accurate. Penalties for defamation, in fact, were “an important incentive to care for accuracy and for reasonableness of comment.”

The necessity of undoing the so-called reverse-onus provision in the law of defamation is a broadly based media argument. Another that is common seeks immunity from court orders to disclose sources or to surrender such working materials as notebooks or tapes. Still another argument frequently advanced is that the media are uniquely at hazard before the law. Once a writ is issued heralding a defamation suit, the media are effectively gagged insofar as that subject matter is concerned and are put to the expensive necessity of preparing a defence in a suit that may never be pressed to conclusion. To all of that, there is—as might be expected—another side.

For a start, while the Reichmanns and the Conrad Blacks as litigants may strike fear in the stoutest of media-corporation hearts—a multimillion suit is not easily laughed off—it is also true that, on the other side of the fence, even reasonably well-heeled individuals may think twice before suing, say, a Toronto Star, or the CBC. The law may not serve the rich and the poor equally because of the cost of going to the law, but not all the media are poor.

The second argument—for nondisclosure of sources—commands strong support among media people who say that news gathering will be constricted if reporters may not receive and use information taken in confidence. The other side of the case says that reporters, in dealing with sources, should enjoy no privilege—that the choice for them should be the same as for all others, between breaking a promise, if a promise of nondisclosure was given, or of refusing—and accepting the consequences.

The most difficult argument to feel sure about is the one on the unfairness of requiring the side exercising freedom of expression to prove truth. Clearly, the charter’s guarantee of freedom of expression, and of the press, means something. But again, on the other side, there is something cautionary in the illustration offered by a broadcast journalist, again in an affidavit, of what constituted, to him, a “chill effect.” He had rejected a story about infiltration of a Canadian government agency and procurement of nuclear secrets because it had not been possible to determine if the information supplied was “disinformation advanced by the CIA.” That implicitly acknowledged that the story might be based on deliberate fabrication.

But what that seemed to say was that the story, possibly harmful to someone’s reputation, would have come first but for the awkward necessity of proving truth.

When sufficient cases have been decided in light of the freedom-of-expression clause in the 1982 charter, a rule will emerge. Meanwhile, if we, the media, are in the business of retailing information purported to be true, and of comment purported to be based upon fact, it is worth a thought to the wisdom of our spreading the idea that our truths are good—subject always to challenge.