Libel chill – what does it mean? Is it real? It is very real and sometimes, but not always effective.

By Staff

April 22, 2104

BURLINGTON, ON.

In an issue of the Ryerson Review of Journalism there was the following article which we have excerpted.

The journalist’s badge. That’s how Ron Adams, host of CBC Radio’s Media File, referred to getting sued. He was questioning Jock Ferguson of The Globe and Mail about libel chill. Lawsuit phobia, if you prefer-the notion that the threat of fighting legal actions, with their high costs in time and money, often inhibits aggressive reporting. For some journalists, getting sued may well be a badge, a testament to their profession. For many others, including those who make the final decisions, the possibility can be intimidating in the extreme.

Though there is nothing like a consensus on how pervasive libel chill is in Canada, it has nevertheless become the basis of a movement to liberalize our libel laws, particularly their onus on the media to prove the truth of what they publish or broadcast. American law, under which the burden of proof is on the plaintiff, is looked to as a model.

The current libel laws “certainly didn’t hinder the Globe last fall when it ran “Behind the Boom,” an eight-part series exposing the corruption surrounding land development in York Region, a formerly rural municipality north of Toronto. Ferguson and co-writer Dawn King spent 10 months interviewing over 200 people, working closely with lawyers and even allowing counsel to meet three controversial sources, all so they could get the story straight. For their efforts, the Globe has been served with a libel notice to the tune of some $20 million.”

“But the story had another more important effect. After reading about the close ties between city councillors and developers, and about the conflicts of interest, voters were able to bring their outrage to the polls. The result: Allan Duffy, the mayor of Richmond Hill, and Carole Bell, the mayor of Markham, were defeated. Now both face investigation by York Regional and Ontario Provincial Police.”

“Under the threat of litigation, the Globe made sure its stories were airtight. “We wrote only what we could prove. There were a number of things we were close to proving, but we wrote only what we could prove,” says Paul Palango, the paper’s city editor. And that, as far as Palango is concerned, is as it should be. Being able to back up what’~ printed is a given. It doesn’t have to limit reporting. The “Behind the Boom” series is proof that the media can do their job within the existing legal framework. As for the Globe, it’s confident that if it should go to court it will win. Palango feels strongly that this kind of aggressive, thorough reporting is the best way to fight the chill. It all comes down to getting the goods, being determined and publishing the stories.”

“Many editors share this conviction. While those at large dailies such as The Montreal Gazette and The Toronto Star pride themselves that their own coverage is just as intense, others acknowledge that the chill is real.

“So does Stephen Bindman, president of the Centre for Investigative Journalism and national reporter at The Ottawa Citizen. “Libel chill is certainly out there,”he says. “I think most reporters can give you an instance of someone saying ‘Oh well, I’ll sue you,’ and if it doesn’t necessarily stop you from doing the story, it at least gives you cause for concern.”

“For its part, the Globe isn’t worried about the 130 notices it’s received over the past five years. And it’s unlikely that any of them will go to court. This situation is typical of Canadian libel actions. Although there are no statistics, most media law specialists agree that over 90 percent of all libel actions never go to trial.”

“The Supreme Court of Canada upheld the 1978 Quebec Superior Court award of $135,000 in the case of civic politician Gerald Snyder against The Montreal Gazette. Before the record Snyder suit, awards throughout the country usually ranged from under $1,000 to $75,000. But since there is no ceiling on damages, that could easily change pending the outcome of the Reichmann family’s action against Toronto Life.

“The billionaire Reichmanns are suing the magazine for $102 million. The dispute is over an article that ran in the November 1987 issue. In it, freelance writer Elaine Dewar traces the rise of the Reichmann family fortune. The Reichmanns claim the legitimacy of their business dealings is being questioned and the family honor is at stake.”

Toronto Life ended up apologizing to the Reichmann’s.

Jeffrey Shallit, a University of Waterloo computer scientist and a noted advocate for civil liberties on the Internet wrote a piece recently in which he argued:  “It’s time to reform Canadian libel law”

“Environment Minister Tony Clement is suing Liberal leader Dalton McGuinty for remarks he made in a CBC radio interview. Jacques Parizeau and Lucien Bouchard are suing investment adviser Richard Lafferty for his comments in a 1993 financial newsletter. In 1997, former Prime Minister Brian Mulroney sued the Federal Government, asking $50 million in damages, over a letter naming him as a suspect in the Airbus case.

“What gives these powerful politicians the ability to shut down criticism and criminal investigations? The answer is Canadian libel law.

“Under the current legal regime, you can be sued for anything you say about another person that damages their reputation. If sued, the onus is on you to prove the truth of your statements; the fact that you genuinely believed them to be true is not good enough. Even truth is not an absolute defence — if the court finds you told the truth but your intent was malicious, you might lose anyway. Canadian libel law is so draconian that people come from all over the world to file libel suits in Ontario.

“The impact on freedom of expression, a core value of the Charter of Rights and Freedoms, is severe. There’s even a term for it: “libel chill”. Libel chill means that people are afraid to criticize powerful people who might bankrupt them with a costly suit. It means that commentators have to think twice before needling public figures — as cartoonist Josh Beutel learned when he was sued by controversial New Brunswick school teacher Malcolm Ross. Ever wonder why there’s so little investigative journalism in Canada? The reason is simple: libel chill.

“Stringent libel laws may have made sense five hundred years ago, when British royalty wanted to stop the nobility from dueling by giving them a legal remedy against character slurs. But we don’t live in the time of Henry VII any longer. Debate on political issues can’t be robust and wide-open if the threat of a libel suit hangs over you.

“Today, if someone tries to ruin your reputation, there are many avenues of redress. You can hold a news conference, take out an ad on radio or television, or set up an Internet web site to tell your side of the story. These methods are cheaper than a lawyer’s fees and certainly safer than a duel.

“It’s time for Canadian libel law to be brought in line with 21st century realities. A good first step would be to reverse the burden of proof in lawsuits involving public figures: the plaintiff, not the defendant, must prove the statements in question are false. Furthermore, let’s exempt statements of personal opinion or belief, and force the plaintiff to prove that the statements were made with malicious intent.

“If we don’t act, the likely result is millions of taxpayer dollars going to fund the legal bills of rich politicians who know how to dish out criticism, but can’t take it.”

Libel chill is very much a part of the Canadian media scene.  Later this week we will tell you more about that chill and how it works.