May 21, 2013

Rob Ford cocaine allegations stretch libel law

Posted by WARREN PERLEY – Editor,
Writing from Montreal

During the past long weekend, I was reading various accounts of Toronto Mayor Rob Ford’s alleged use of crack cocaine, first reported on May 16, 2013 in U.S.-based media site Gawker and in the Toronto Star.

One piece which caught my eye was by contributor Christopher Bird in the Torontoist, which questioned whether Ford could successfully sue either outlet for defamation. Bird’s conclusion was that Gawker is bullet-proof because it is based in the U.S. and a foreign libel judgment is not enforceable in America.

He also concluded that the Toronto Star had taken all the steps needed to protect itself from a successful libel suit in Canada because it had followed the guidelines outlined in a 2009 Supreme Court of Canada judgment which expanded media protection against defamation suits when reporting on matters of public interest.

For my part, I don’t think such black-and-white conclusions are justified. Let’s start with the case of Gawker, whose editor, John Cook, said he viewed a tape shown to him by drug dealers in Toronto, on the basis of which he reported that Rob Ford smokes crack cocaine. He went on to say in his Gawker article: “I know this because I watched him do it, on a videotape. He was fucking hiiiiigh [sic]. It’s for sale if you’ve got six figures.”

Libel law in Canada and the U.S. are very different. In Canada, the burden of proof is on the defendant (for example, a media outlet) to prove that what it said was true, which is an absolute defence, but a high hurdle. Since the 2009 Supreme Court of Canada ruling in Grant v Torstar Corp, the defence against defamation has been broadened to allow a media outlet to report in a responsible manner on a matter of public interest.

The Supreme Court judgment referred to the “vital role of the communications media”, in light of Section 2b of the Canadian Charter of Rights and Freedoms which reads, in part, that “everyone has…freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

The Supreme Court concluded: “A defence that would allow publishers to escape liability if they can establish that they acted responsibly in attempting to verify the information on a matter of public interest represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information that is vital to modern Canadian society. The law of defamation should therefore be modified to recognize a defence of responsible communication on matters of public interest.”

In the U.S., the burden of proof is on the plaintiff to prove that what the defendant wrote or broadcast was false. And even then, the defendant likely won’t be found liable for defamation unless the plaintiff can prove that the defendant acted maliciously or in a reckless manner, knowing their material was false or could be false.

Despite Bird’s opinion to the contrary, as expressed in the Torontoist, enforcing a Canadian court’s libel judgment against a U.S.-based individual or media outlet is not impossible. Bird wrote: “…defamation judgments made against Americans in foreign jurisdictions are not collectible in the United States.”

Perhaps Bird’s misinterpretation of the law arises from the Speech Act of 2010, passed by the U.S. Congress and signed into law by President Barack Obama, which makes foreign libel judgments unenforceable in the U.S. if they violate the First Amendment of the U.S. Constitution guaranteeing, among other rights, freedom of speech and freedom of the press.

However, any such defamation case brought in Canada against either Gawker or its editor, John Cook, would likely not impinge on his First Amendment rights. In fact, if such a case was heard in a Canadian jurisdiction it would probably hinge on the same central element as if the same case was heard in a U.S. courtroom, namely: Did Cook take the necessary steps to ascertain whether the video he viewed of Ford allegedly smoking crack cocaine was authentic or a forgery?

We all remember the hoax video made by Montreal students showing an eagle snatching a baby on Mount Royal. Published on YouTube on December 20, 2012, it was viewed by thousands of people and made the newscasts of major media outlets around the world.

Why is it beyond reason to believe that the video of Rob Ford could also be a hoax? The authenticity of the video — and whether attempts were made to verify it by journalists — would certainly be a central issue in any defamation suit heard in a Canadian court.

In the case of Gawker, a Canadian court of law might also hear evidence of possible malice, given that media outlet’s acknowledgement in its May 16, 2013 story that “we’ve made fun of Ford before,” calling him “Toronto’s insane, terrible mayor.…”

In any case, regardless of one’s opinion of Rob Ford, a defamation judgment made by a Canadian court can be enrolled for enforcement in an appropriate court in the home state of an American defendant. This was done by Charles Leary and Vaughn Perret, owners of Trout Point Lodge in Nova Scotia, who won a $425,000 defamation judgment in February 2012 in Nova Scotia Supreme Court against Louisiana blogger Doug K. Handshoe, who had made graphic homophobic comments against the two men on his website and accused them of criminal acts.

In January 2013, Leary and Perret enrolled the Nova Scotia Supreme Court judgment in the U.S. Court of Appeals, Fifth Circuit, based in New Orleans, asking that court to enforce it. Leary told in a May 20, 2013 telephone interview that he and Perret have hired counsel in New Orleans to make oral arguments before that court. He said no date had yet been set for the case to be heard.

Once a judgment is rendered in the matter by the U.S. Court of Appeals, Fifth Circuit, the next legal appeal would go direct to the U.S. Supreme Court, if either party to the suit sought to take the matter further and if the highest court in the U.S. agreed to hear the case.

The legalities set out above cover any libel action that might be taken in Canada against an American-based media outlet, such as Gawker. But where would the Toronto Star stand legally if it turned out that the cocaine video was a forgery or that it could not be proved to be authentic and Rob Ford sued them?

In concluding that the Toronto Star protected itself against a successful libel action, Torontoist contributor Christopher Bird oversimplified the 2009 Supreme Court of Canada judgment (Grant v Torstar Corp) pertaining to the media and what constitutes responsible communication on matters of public interest.

In my view, the Toronto Star comes up short on several counts in its handling of the Rob Ford cocaine controversy, regardless of whether the video ultimately turns out to be authentic or a forgery.

There are seven factors cited in the 2009 Supreme Court judgment to be considered in determining whether a defamatory communication on a matter of public interest has been responsibly made:

One of those factors is the urgency of the matter. The Supreme Court wrote: “The question is whether the public’s need to know required the defendant to publish when it did” or whether “…a reasonable delay could have assisted the defendant in finding out the truth and correcting any defamatory falsity….”

By their own admission, the Toronto Star reporters viewed the video on May 3, 2013, but their story was published only on May 16, 2013 after they learned that U.S.-based media outlet Gawker was publishing on this matter that very same day. So it seems that the Star’s timing in publication was based on a consideration of competitive advantage versus Gawker; not on the public’s need to know on May 16.

Bird wrote in the Torontoist: “And one would expect the Star to take reasonable steps to check the veracity of the video, as well as reach out to Rob Ford himself for comment. They did both….”

Yes, the Star did contact Ford for comment, but how does Bird conclude that the newspaper checked the veracity of the video? Having their reporters view it does not determine whether it is authentic. For that, the Star would need to take possession of a copy of the video in order to have it checked out by forensic technicians knowledgeable about digital manipulation.

Another factor cited by the Supreme Court in determining whether a defamatory communication can be considered “responsible” is the status and reliability of the source of the story. “The less trustworthy the source, the greater the need to use other sources to verify the allegations,” the court wrote. A judge and jury would not likely consider the drug dealers cited in the Toronto Star story to be “trustworthy”.

Interestingly, one of the factors cited by the Supreme Court as to what constitutes responsible communication on a potentially defamatory matter would have given the Toronto Star the perfect legal cover to report on the issue: The Star could simply have reported what Gawker published, namely that the editor of that outlet said he viewed a video showing Ford smoking crack cocaine.

The Supreme Court wrote that a published report concerning a matter of public interest, whether it later turns out to be true or not, can be repeated by other media outlets if done in a fair manner and attributed to the original party reporting the matter. Those outlets repeating the story must make clear that the truth of the allegations has not yet been determined; they must set out both sides of the dispute, and they must give the context in which the original report came out.

In other words, the fact that another media outlet, such as Gawker, is making a potentially libelous statement then becomes the basis for other media outlets to report what Gawker is saying without exposing themselves to being part of a potential defamation.

The Star could have reported what Gawker said and then gone on to say that two of its own reporters had viewed the video earlier and that although it appeared to show Ford holding a glass crack pipe to his mouth, the Star was unable to verify the authenticity of the video and, therefore, did not publish until it became public through Gawker.

Such an approach would have obviated the need for the Star reporters to twist themselves into a pretzel by writing in the first paragraph of their May 16 story that the video “appears to show Mayor Rob Ford smoking crack cocaine.” By the eighth paragraph, they had dropped the qualifier “appears”, describing the person in the video as Ford. And one of the reporters, Robyn Doolittle, clearly said during an interview on CBC’s The National on May 17 that it was Rob Ford in the video she viewed. Kevin Donovan was the other Star reporter who confirmed that it was Ford in the video.

One last fact which could come out at some point is whether the Toronto Star was the Canadian media outlet which one of the drug dealers told Gawker had offered to pay $40,000 for the video, but had been turned down because $100,000 was being sought at the time.

If it turns out that the Star missed an opportunity to buy the video over price [$40,000 offered, compared with $100,000 asked] rather than principle [some media outlets feel paying news sources is an ethical compromise], it will be one more example of how the Star declined to take the step needed to obtain the video and prove, once and for all, whether it is authentic or a forgery.

Knowing whether the video is authentic would make moot all discussion of defamation. For $100,000, the Toronto Star could have had the story to itself and proved to its readers whether their mayor partook of cocaine on this occasion or whether he was the victim of drug-dealing hoaxers.