Libel reform: Be careful what you wish for

Jeffrey DvorkinThe new defence of responsible communication is good news for the
media, but Ryerson University’s Jeffrey A. Dvorkin doubts it will usher
in a new wave investigative journalism. As layoffs continue and
newsrooms are pared down to the editorial bone, the ability of news
organizations to engage in deep, contextual investigative journalism is
far from what it once was, or what it should be.

Canadian journalists should not start breaking out the champagne – not just yet.

The Supreme Court of Canada has updated this country’s libel laws and ruled on a matter of “responsible communication.” The ruling states, in part, that journalists and their news organizations can be shielded from libel if they demonstrated that they have taken every reasonable step to check the veracity of information published or broadcast.

The defence will operate in favour of the media outlet, “if it can establish that it acted responsibly in attempting to certify the information in a matter of public interest,” Chief Justice Beverley McLachlin wrote.

That sounds like a victory for hand-hitting journalism, lessening the libel chill that has been frostier in Canada than in many other English-speaking countries.

But while this may appear to be good news in principle, the implications are quite different; the reality is that this is no early Christmas present for the lawyers at the CBC, The Globe and Mail, the Toronto Star, CanWest Global or any other media organization in Canada.

And while the pundits are saying this is good for journalism, I think the ruling must be making media lawyers very nervous. While editors are hailing the ruling as a breakthrough for more aggressive journalism, it also makes it clear that these days, news organizations may be less able than ever to deliver on these expectations.

That’s because as layoffs continue at news organizations and as newsrooms are pared down to the editorial bone, the ability of news organizations to engage in deep, contextual investigative journalism is far from what it once was, or what it should be.

News organizations almost everywhere are dropping their investigative units as too expensive, too time-consuming and far too unable to deliver the requisite audience numbers. Instead, investigative reporting is being contracted out in the U.S. and other countries to “stand-alone” not-for-profits such as ProPublica, Global Post, and the Center for Public Integrity, among others. In Canada, we don’t even have that option.

Dispensing with investigative reporting, or doing it on the cheap, relieves mainstream media organizations of an expense, and now from possible legal liability. NPR is an exception to this trend having just hired Susanne Reber away from CBC Radio as deputy managing editor, investigations.

But other news organizations have not been as bold and only those news organizations with the deepest pockets will partner with other investigative organizations, leaving most broadcasters and newspapers to cover more popular, and less risky stories.

My guess is that media law departments are now advising chief editors to restrain their journalists from doing more aggressive reporting unless they can prove that every effort (including a demonstrable commitment to editorial resources) has been made to get all sides of the story. It’s that commitment to shoe-leather reporting that is among the first things to be dropped in a downsizing news organization.

In any future libel action, the onus will now be on media organizations to prove that every reasonable effort has been made to contextualize a story. And the definitions of “reasonable” and “context” will be subject to enormous debate in newsrooms, in boardrooms and, hopefully, in journalism schools.

There is, however, one undoubtedly positive aspect in the ruling from the Supreme Court of Canada: as journalism moves increasingly to the web and as mainstream media seek to return to profitability, the best journalism is increasingly online, and the justices seem to know this better than most.

The ruling addresses the issue of ethics, standards and practices among bloggers – those independent reporters and opinion-mongers whose power and influence are growing just as legacy media’s reach and heft are diminishing. The ruling brings the blogosphere under the same right, responsibilities and obligations as the mainstream media.

But the blogosphere has been regarded by the more established media as the “wild west” of journalism, where the normal rules seem not to apply. The ruling insists that bloggers have responsibilities, to go along with their right to free speech.

The challenge for the online community is to create a set of ethical standards that will give bloggers the same credibility with the public as valid as those espoused by the mainstream media. In effect, bloggers need an ombudsman.

As for newspapers and broadcasters, they now have to show that they are still in the game by doing journalism that provides context and balance, and serves the audience as citizens first, and as consumers of media second.

Jeffrey Dvorkin is the Rogers Distinguished Visiting Professor of Journalism at Ryerson University and the executive director of the Organization of News Ombudsmen.