Media Watcher George Bain challenges the notion that libel laws fetter the press

December 5 1994


Media Watcher George Bain challenges the notion that libel laws fetter the press

December 5 1994


Media Watcher George Bain challenges the notion that libel laws fetter the press



The term “libel chill” has arisen in media circles to describe an apprehended state of fear of publishing a critical article about a well-heeled subject who has a habit of filing lawsuits. Many journalists complain that libel chill and the so-called reverse onus provisions of Canadian law have restricted the freedom of the press to report on people or matters of public interest. In his new book,

Gotcha!: How the Media Distort the News, media critic George Bain suggests that journalists in Canada are suffering from Yankee envy. He questions the conventional wisdom in the journalism trade that Canadian libel laws act as a constraint on freedom of the press. Bain, a veteran reporter and columnist who worked for the Toronto Globe and Mail and The Toronto Star before he retired to Nova Scotia, writes the Media Watch column for Maclean’s. Libel is the subject of a chapter titled “Chill or Be Chilled. ” An abridged excerpt:

Lucas A. Powe Jr., an American authority on what is known generically in the United States as First Amendment law, has said that people in his country read more about libel than any other form of non-criminal law. The explanation is not that libel is so common; in fact, he says in The Fourth Estate and the Constitution: Freedom of the Press in America that it makes “an insignificant blip in the statistics of American courts.” Rather, it is so much brought to public attention because libel affects the press “and the press assumes, with becoming myopia, that anything that affects it is important to us, too.”

That same assumption, and the myopia that goes with it, are no less present in Canada. That is why everyone who has read, seen or heard the news at all in at least a decade may have some glimmering recollection of the term “chill effect” in another context than that of winter temperatures and biting winds.

The most common definition of libel chill is a fear induced in the media at the thought of being tied up in court forever, and at great expense, because someone who is (a) litigious and (b) rich has taken offence at something being made public. Thus, a crimp is put upon freedom of the press, the crimp of fear, which may cause the withholding of information the public should have. It lies, of course, with those

Reprinted with permission from Gotcha!: How the Media Distort the News, copyright George Bain, published by Key Porter Books Ltd., Toronto.

who complain of the chill to say what information the public should have.

What the argument omits is the fact

that persons who are not at all litigious by nature, and not rich, may feel they have been gratuitously defamed, but may suf-

fer a similar chill at the thought of going

up against a large media corporation to seek redress. The press myopia has the curious effect of blanking out the second

part of this double standard.

Nor is that all. Any proceeding which challenges an assumed right of the press to do anything may bring forth dark mutterings about an intrusion on the constitutional guarantee of a free press. A court grants an injunction to delay—not to ban, although it’s usually so described—the broadcast of something because it might influence a jury at a trial. That may be represented as instilling fear in the hearts of producers, which may cause them to back off from doing the fearless, challenging documentary they have in mind. What of the right of the person on trial to be judged by an unprejudiced jury? Tough. The right of the public to know—nowhere defined—must take precedence if freedom is to prevail. Better a man be in the hoosegow than the media become self-censoring, backing away from subjects because of imposed timidity.

No one, of course, is obliged to believe the plaint without reservation, or to sympathize with it. Every time an editor takes pencil in hand, or rather manoeuvres the cursor of the computer, to consign the next several paragraphs to the now-metaphorical wastebasket, he or she is censoring—in this case the writer. It is called editing. Such cutting is done for all sorts of reasons, from the simple one of space or time, to the editor’s having found the information improbable, morally offensive or biased— all qualitative judgments.

Some prominent persons who have been known to react badly to things published about them—the Reichmann family, for example, or Conrad Black—have become themselves living symbols of chill not surpassed by Frosty the Snowman. They have money, they are considered to have easily bruised sensitivities, and they may at any time, it is feared, use the first to demand salve for the second. Chill is everywhere and the sensitivities of the media to it are tender.

Freedom of the press, whether constitutionally guaranteed or simply established in common law, is a warrant to put in print or on air almost anything the publisher or broadcaster is prepared to take responsibility for. In other words, it is not necessary, before going ahead, to submit material to be read for acceptability, or to apply for a licence to publish, or even to get an informal nod of approval anywhere.

Except in extraordinary circumstances— such as a court intervening to say that this or that should not be published at this time— there is no prior restraint, as the term is. After the event, things are different; that is where accountability comes in. Freedom of the press does not mean press immunity from criticism, questioning or full-blown public denunciation. More important, it does not supersede the civil law which recognizes defamation as a tort, defined as a wrongful act which results in injury to another person’s bodily well-being, property or reputation, among other things.

What the undoubted bulk of journalists

‘Some prominent persons who have been known to react badly to things published about them have become themselves living symbols of chill not surpassed by Frosty the Snowman*

regard as the most galling aspect of the Canadian law is that the one unfailing defence in libel—obviously not the only defence—is the defence of justification. What justifies is truth—but the defendant must be able to prove it. That reverse onus, as it is called, is the reverse of what applies in most damage suits, in which the party claiming injury is left to make his or her case that injury actually was done and by what fault of the defendant.

The Canadian law has defenders among some journalists and lawyers, who say in effect that a little bit of chill encourages further effort to nail things down, and so improves accuracy. The evidence that it actually does so is at best patchy, but it is difficult to argue that easing the law would make anything better.

The reverse onus has gone from U.S. law, but while it remained, an interesting sidelight was cast upon it by a highly successful libel lawyer, E. Douglas Hamilton, who looked after the legal troubles of The New York Herald Tribune over a period of 29 years. During that time, Hamilton lost only one contested case, in 1939. The plaintiff was awarded damages of $2,500, reduced on appeal to $1,000.

The story is briefly told in The Paper: The Life and Death of The New York Herald Tribune, a superb portrait of a much-admired newspaper, by Richard Kluger. Hamilton did not like settlements out of court; he thought they could only encourage others to try their hand. Whether or not he, as a courtroom lawyer, ever found the reverse onus irksome, he nevertheless acknowledged the legal logic in it. His view, as recounted by Kluger, was that “the publisher of a libel is standing in the shoes of a prosecutor since he is accusing someone of bad conduct, while the person named in the publication is, as he should be, presumed innocent of the accusation.” That is a restatement, in terms of civil law, of a fundamental proposition of criminal law.

Another relevant consideration in the matter of onus is that the news media are in the business of selling information which they want their viewers, listeners and readers to believe is at all times as true as they can make it. It seems somehow inconsistent to argue that the law should be written to relieve them of the responsibility of defending their product in court Obviously, doing away with the reverse onus would remove a considerable element of the chill to which the press claim such extreme susceptibility; whether the inhibition is quite what it is made out to be, or

warrants a greater degree of protection being provided, are a couple of other matters.

One celebrated case of demonstrated libel chill was the great political scandal in Britain in the early 1960s. The three principals in the affair—with a rich supporting cast, including a marijuana dealer picturesquely known as Johnny Shit—were John Profumo, the secretary of state for war; Yevgeny Ivanov, an assistant naval attaché at the Soviet embassy in London; and Christine Keeler, euphemistically described as a model. The first two from time to time shared the bed of the third, although not together.

What made the story more than merely

‘The media reaction to the holding up of evidence from the Holmolka trial was intense and self-righte ously indignant’

piquant was the Cold War, which at that point was at its coldest. Any pillow talk that took place could have encompassed the deployment of submarines or nuclear missiles, or other national defence secrets. (Nuclear missiles seem an improbable subject of conversation in the circumstances, but in the depths of the Cold War a lot of improbable scenarios received serious consideration.)

The story, as related by Phillip Knightley and Caroline Kennedy in Affair of State, was scarcely unknown in Fleet Street long before it eventually broke—but not first in the press. The Sunday Pictorial had the tale, or a version of it, complete, initialled page by page by Christine Keeler herself as staff writers put her verbal reflections into Sunday Pictorial words. The News of the World had it, too, at least in outline; Keeler had gone there from the Pictorial looking for a better offer, but the News of the World, not usually known for its lack of interest in a juicy yam, refused to get into a bidding war. Much-guarded rumors had even appeared in print

However, the facts remained unpub-

lished until a front-bench Labour MP, George Wigg, in opposition, sprang

enough of the story under the protection of parliamentary privilege to ensure that the rest must follow. Profumo was first to respond; he

acknowledged that he and Keeler were

on friendly terms, but assured the House that there had been no impropriety. When that was shown not to be pure fact, it gave rise to a couplet defining parliamentary sensibilities in such matters: “To lie in the nude is at worst rather crude, but to lie in the House is obscene.” Profumo soon resigned.

When Wigg spoke, he said every member of Parliament and of the parliamentary press had heard mmor upon rumor. But the press, he said, had shown itself willing to wound— an apparent reference to the guarded bits that had appeared—but not to kill. He went on; “These great press lords, these men who control the great instruments of public opinion and of power, do not have the guts to discharge the duty that they are now claiming for themselves.”

It was not an unfair comment. If the possibility existed that information had gone from the secretary of state for war, via a shared lover, to an intelligence-gatherer for the Soviet Union—which, as it happened, was the naval attaché’s real role—the security of not just Britain but perhaps other countries might have been endangered. The press had had the information in their hands, and presumably had seen the implications they were quick enough to announce once the story became public; this reluctance to publish showed either the lack of guts alleged by the Labour MP, or an inactive sense of public responsibility.

Freedom of the press first became a constitutional right in the still-new United States in 1791, phrased in the First Amendment simply as “Congress shall make no law . . . abridging freedom of speech or of the press.” Since 1925, the same guarantee has existed in state law. But the idea was not new even in 1791. Although the revolution in the Thirteen Colonies was in rejection of the government and laws of England, the makers of the U.S. Constitution borrowed freely from the thinking of Whig radicals in

England. The proposition that all men are created equal, and the idea of a constitution based upon checks and balances, derived from the writings of the English philosopher John Locke. In 1769, 22 years before the First Amendment was proclaimed, the English jurist Sir William Blackstone had already written in his Commentaries on the Laws of England: “The liberty of the press is indeed essential to the nature of a free state, but this consists in laying no previous restraint upon publications, and not from censure... when published.”

From the beginning, the spectrum of debate in the United States on freedom of

the press has run mainly from very little restraint to none. The subject is rich in lore. The quotation from Thomas Jefferson most favored by the press is that, the basis of government being the opinion of the people, “were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.” He also said that government should intervene to regulate people only when they did some-

thing, not when they said something. On the other hand, as recorded in Jefferson & Civil Liberties: The Darker Side, by Leonard W. Levy (Quadrangle, 1973), he also said that the press, while free of censorship, must remain “responsible for abuse of an unrestrained freedom to publish.” And once he was even moved to write to the governor of Pennsylvania to say—which sounds like a hint—that “a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses.” The states at the time were not constrained, as Washington was, by the First Amendment.

The assumed rights of the press cross with the authority of the courts when a judge decides that exceptional circumstances warrant a curtailment of reporting— as in the recent Ontario cases of Karla Homolka and her estranged husband, Paul Teale (Bernardo), and charges of manslaughter and murder. Justice Francis Kovacs, without closing the court to reporters, placed a ban on the immediate publication of the evidence in the trial of Karla Homolka lest a jury in the subsequent trial of her husband might be prejudiced by it The case had generated volumes of sensational coverage even long before the arrests were made. The media reaction to the holding up of evidence was intense and self-righteously indignant. This was proclaimed as a denial, not just of press freedom, but of a fundamental of the justice system, namely that justice must be seen to be done. (Debatable, that; it is nowhere written that the press have to be present for justice to be seen to be done.)

John Miller, chairman of the school of journalism at Ryerson Polytechnic University in Toronto and a former senior newsroom executive at The Toronto Star, was one who took a much cooler view and attracted sour comments for it. His point was that the press were largely responsible for creating the exceptional circumstances cited by the judge, by excesses committed in the coverage before the trial of either accused.

However, worse than that lapse, Miller had taken a swipe at the pretensions of the

‘To lie in the nude is at worst rather crude, but to lie in the House is obscene9

media to be the collective surrogate of the people, by quoting some observations of David Lepofsky, a constitutional lawyer in the department of the Ontario attorney general, to a conference in England

in 1991. These were some of Lepofsky’s words: “News organizations will appear in court from time to time and assert ... that they are attempting to enforce the public’s right. Yet, they secure no prior authorization from the public before doing so. Many members of the public may well not agree with the positions

purportedly being advanced in their name____

News outlets, like the producers of any product or service consumed by the public, can be properly seen as private operations..

Therefore—not in Lepofsky’s words, but in mine—their claims as emissaries of the people to be somehow different, somehow removed from the legal strictures that apply to others, are unwarranted pretensions if not actual delusions of grandeur—and a demonstration of a thoroughgoing double standard.

Through much of the reporting and commentary on the judge’s stay order there ran a fine thread of suggestion that this sort of thing

would never be tolerated in the United States and, accordingly, should not be accepted in this country. American reporters, from Buffalo and other nearby border points, were quoted to that effect properly aghast at the thought. What was more surprising was that

various domestic editorials seemed to accept not just in that case but in subsequent others in which less substantial delays were imposed, that Canadians had some catching up to do.

How so, and why? Two facts underlie this excursion into American law. The first is that to look at press law without looking south would be difficult. As a constitutional concept it began there. There are 200 years

‘The notion that we need a made-in-America press law rests on thin logic’

of American jurispru-

dence relating to the press—and there can’t be many fewer books on it than there are seats in Maple Leaf Gardens. The inclusion of freedom of the press in the Constitution of Canada dates only from 1982. Before that, we were not without freedom of the press—it was honored no less or more than now, in common law—but it was not written down until it was included in our charter as a fundamental freedom.

The second fact is that, now that we have freedom of the press in our Constitution just like the Americans, the thinking of Canadian journalism has turned to the development of a body of press law that will also be just like the Americans’. What has helped that along, on top of the inbred Canadian leaning to copy-cattism, is the fact that the generation now dominant in journalism became politically aware at the same time as radical changes in press law and everything else were occurring in our all-purpose role model to the south. Their attitudes generally came from there.

But the notion that we need made-inAmerica press law rests on thin logic.

Freedom of the press was conceived in the United States around the idea of an independent, numerous and disputatious press as the collective monitor that would bring every possible viewpoint to bear on the performance of government, not so much to keep it honest as to keep it democratic. The press would be the people’s watchdog and informant Such outside surveillance is valuable in a system in which the executive of government does not sit in the legislature—as it does in the parliamentary system—where it is answerable on a day-to-day basis to the direct representatives of the people. Therefore, the power conferred on the U.S. press in 1791, by way of an irrevocable freedom to publish without interference, had a recognized rationale and purpose.

If the Canadian federal-provincial conferees who produced the Charter of Rights in 1982 decided what freedom of the press was for, beyond perhaps the gratification of the media, they did not say. Certainly the U.S. reasons for special treatment do not apply in Canada, and the assumptions on which the U.S. First Amendment was based have become, by the Nineties, too ludicrous to be taken seriously. The Canadian media are neither numerous nor, as to ownership, diverse. As to their being disputatious, at least among themselves, every influence is in the opposite direction to become more and more alike. □