JOURNALISTIC RESPONSIBILITY IN THE MODERN AGE: SOME THOUGHTS

FROM A MEDIA LAWYER

April 29, 2017 Toronto, Ontario

Remarks to the Philippine Press Club of Ontario by Mark A.B. Donald

We live in an age of the 24-hour news cycle and social media - where public acclaim for
a sensational scoop can be rewarded with thousands of shares, retweets and comments.

In this new media landscape, journalists must remember that while news is a business,
they cannot view themselves as purveyors of sensationalism.

Unlike other businesses, the adage of giving the customer what they want must be
tempered by the fact that journalists are all professionals with a duty to inform the
public.

The three requirements to meet the legal test for defamation:

1. The defendant's statements must be published to a third person;

2. The statements must refer to the plaintiff (directly or indirectly);

3. The statements must damage the plaintiffs reputation in the eyes of

a reasonable member of society.
This is a quite easy test to satisfy for most plaintiffs, so in reality, the vast majority
of defamation cases come down to whether the author has a viable legal defence
to a defamatory statement. The key question to ask is: was the publishers
reporting responsible?

Who can be liable for defamation?

1. The author of the article;

2. The newspaper itself (the corporation);

3. The editor; and

4. The publisher (sometimes an umbrella company).

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What are the key considerations for journalists writing on sensitive

subjects?

1. Ask yourself: am I writing a news story or an opinion piece?

a. If an article is being presented as fact:

i. Are my sources corroborated?

ii. Who are my sources?

iii. How many sources do I have?

iv. Am I reporting the facts accurately? Or am I

embellishing for effect? (be wary of the latter);

v. Have I reported all the relevant facts?

vi. Have I asked the subject of the article for their

comment? (this is perhaps the most important thing
you can do)

b. If the article is being presented as an opinion:

i. Does the tone of the article make clear that it is an

opinion?

ii. Are there verifiable facts upon which that opinion is

based?

iii. Is there a logical connection between the verifiable facts

and the opinions stated?

iv. Beware of opinion creeping: where one asserted

fact leads to several, increasingly detached and
unfounded opinions.
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If the article is sensitive in nature, remember that you are part of an editorial
team

1. Have frank discussions with your editors and colleagues about the
story:

a. Probe the strength & impartiality of your sources;

b. Be critical of the tone of your own work ask yourself, am I

perhaps showing my own bias?; and

c. Avoid group think: the fact that your paper may have written
about this subject before without incident, does not make this
article presumptively OK.

A CHECKLIST FOR RESPONSIBLE JOURNALISM

(See: Grant v. Torstar Corp., 2009 SCC 61)

The starting point for this discussion is the understanding that we do not hold journalists
to a standard of perfection in the accuracy of their reporting. Rather, we look at the
diligence that they have exhibited under all the circumstances of the publication

Is the matter one that is in the public interest?

"Public interest" is not confined to stories about government and politics.
"The public has a genuine stake in knowing about many matters, ranging
from science and the arts to the environment, religion, and morality."

However, mere curiosity or prurient interest is not public interest according

to the case law.

How serious is the allegation?

The more serious and damaging the allegation, the more diligence will
have to show in researching and verifying the story.

How publicly important is the matter?

The matter may be one of general public importance, but if it is a matter

that goes to the core of our society or democracy, i.e. national security,
the courts will expect more diligence from reporters.
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How urgent is the matter?

Courts will appreciate the need to file timely reports on important events,
but a rush to score a scoop might not be forgiven if a reasonable delay
would have detected an error before publication.

How reliable are your sources?

If sources are untrustworthy or have an axe to grind, the reporter must be

more diligent in verifying information.

Confidential and unnamed sources can be used, but the legal test remains
whether it was reasonable to do so under the circumstances.

Have you tried to get the other side of the story?

Its not always necessary or possible to contact the target of a defamatory

comment, but the reporter must show an effort to be fair and to get both
sides of the story.

Is the inclusion of the defamatory statement justifiable?

The defamatory statement must be relevant to the story, but the courts have
also said that "generous scope" should be given to editorial choices made
in the newsroom.

That said, asking this question goes back to bias and the reporters
obligation to be objective.

Make clear whether you are asserting the truth of a fact, or whether you are
simply reporting that an ongoing debate is occurring

This is the "reportage" defence for journalists. It recognizes that the public
may have an interest in the assertions and counter-charges made in
debates over important issues, regardless of whether the allegations are
true.

In this context, the messenger would have a defence if: (1) the statement is
attributed, preferably to a named source; (2) the report indicates the
statement has not been verified; (3) both sides of the dispute are reported
fairly; and (4) the context in which the statement was made is reported.

Is the tone appropriate?

Sensationalism or a critical tone may be appropriate, and writers should

not be held to a standard of stylistic blandness. However, its important for
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journalists to be critical with themselves about this point and whether tone
indicates the appearance of bias.

CONCLUSION: THE VITAL ROLE OF INDEPENDENT JOURNALISM IN A FREE

AND DEMOCRATIC SOCIETY

The Canadian Media Concentration Research Project wrote in 2013 that together, Bell
Canada, Rogers Communications, Shaw Media and Telus Media account for 70% of the
media landscape in Canada.
With that in mind, independent publications and organizations such as those seen in
Canadas Filipino media have never been as important as they are they are today. Without
them, Canadians would lose an important perspective on issues both in Canada and
abroad. In short, the Filipino media provides the very element that is most vital for a
vibrant and meaningful free press: diversity.
Without diversity, a free press and the democracy that it is intended to sustain is an
illusion.
This reality places great responsibility on you, the members of the Philippine Press Club
of Ontario. By choosing your profession, whether full-time or freelance, you have
committed yourselves, not to prestige or fame, but rather to the advance of truth and
honest debate.
You are all unfortunate. You live in an age when journalism appears to resemble a mass-
market commodity. You write at a time when the publics suspicion, and the authorities
antipathy towards journalists appears to be rising. Even in a peaceful country like ours,
each of you are in a very real sense journalists under fire.
The purpose of my remarks today is to remind you not to cower from this reality, but to
run towards it, and to embrace it. Remind yourself of your duties to your readers and
your obligation to report fairly.
Remember that the most zealous and fearless reporter must also be the most diligent.