Question: I work in the lovely City of Kenora, where an elder has asked me to help her tell her life story.
The parts about living off the land and descriptions of the culture are wonderful. The sections where she’s talking about the abuse she suffered at the local residential school are trickier. She doesn’t name names, but she does name the school. It’ll also be possible to identify individuals in charge.
The specifics make her story much more powerful, but she may end up with some legal issues. Others have done this, because they don’t care if they’re sued, and so they were. Do you have any thoughts or advice?
Daily Miner and News
Answer by media lawyer Bert Bruser.
This is a classic problem in libel law.
You have a potential story, clearly in the public interest, which will allege serious abuse at a residential school. But you will likely only have one side of the story, that of the person being abused.
I can’t give you legal advice — I don’t know nearly enough about the facts. I can outline, briefly, some of the matters that you will need to consider.
1. A person can be libelled, even if not named in the story, so long as the person is identified to some readers. Whether a person is identified depends on what facts are contained in the story. For example, if one publishes that the person who taught grade one English at the school in 1980 abused the students, those are sufficient facts that the teacher is identified. So the art here might be to publish as few specific facts as possible.
2. Dead people cannot sue for libel.
3. If the persons who committed the abuse are identified in the story, and are alive, then there may be a serious libel risk. This risk can be reduced, somewhat, if:
a. the allegations of abuse are presented clearly as allegations and not facts, AND,
b. a genuine attempt is made to present, in a fair and balanced way, the other side of the story.
I hope this helps. Unfortunately, this appears to be the kind of story where you should get legal advice before you publish.
Bert Bruser is a leading Canadian media lawyer based in Toronto.
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