With the recent Supreme Court decision to widen the available
defences to defamation actions comes added responsibilities.
Journalists must now debate what constitutes responsible
journalism, writes Cecil Rosner. 

Now that the Supreme Court of Canada has established a new defence to defamation — responsible communication on a matter of public importance — it will be interesting to see how much journalistic consensus develops on exactly what constitutes responsible communication.

There is no question that the court’s ruling modernizes Canada’s defamation law and provides greater leeway for journalists to probe matters of public importance. But it also places a greater burden on individual journalists and news organizations to debate and constantly perfect methods and principles. This is particularly true when it comes to investigative journalism.

For example, is it responsible for news organizations to use hidden cameras? Some do, others don’t. Is it responsible for journalists to misrepresent themselves in the gathering of information? Some do, others don’t. What about engaging in the so-called ambush or doorstop interview? Will the courts deem that to be fair game?

Even when it comes to more routine decision-making in the journalistic process, there are differences between organizations. Some city editors and news directors will publish the names of anyone charged with a criminal offence. Others will suppress the names of people accused of sex crimes. Some will publish names of the accused only if they intend to follow up the story to ensure that an eventual acquittal or dropping of charges isn’t missed. Which of these approaches is the most responsible one?

And exactly how far should journalists go in exposing every last detail of the Tiger Woods saga?

Not every news organization in Canada has an established code of ethics, and I would suspect that not too many bloggers have one either. The absence of a written policy or set of guidelines can lead to ad-hoc decisions when it comes to determining what is responsible and what isn’t. Some journalists tend to make it up as they go along, arguing that their gut is the best test for what feels right.

Even when a written set of journalistic practices exists, there are grey areas. While certain practices are frowned upon, they can be seen as acceptable in exceptional circumstances. Just what those circumstances are becomes a matter of subjective interpretation. It would be hard to imagine an absolute bible of journalistic laws that provided a clearcut answer every time on whether an act was responsible or not.

Not even the Supreme Court is willing to say definitively which practices are responsible and which are not. For instance, here is what it had to say about the controversial question of confidential sources:

“It may be responsible to rely on confidential sources, depending on the circumstances; a defendant may properly be unwilling or unable to reveal a source in order to advance the defence. On the other hand, it is not difficult to see how publishing slurs from unidentified ‘sources’ could, depending on the circumstances, be irresponsible.” (Para. 115, Grant v. Torstar).

This is a groundbreaking statement from Canada’s highest court that the reliance on confidential sources might be a proper journalistic practice. To date, journalists have had no substantial judicial protection when it comes to refusing to reveal sources. Some lawsuits have been lost as a result, and in some cases journalists have gone to jail for refusing to reveal their sources. But there is still no certainty here. The court is reserving its right to decide this question “depending on the circumstances,” which is what many questions of journalistic ethics tend to revolve around.

Still, I believe an articulated set of standards is far better — and in light of the Supreme Court’s decision, now far more crucial — than nothing at all. It allows readers and viewers the opportunity to see what the news organization’s thinking is when it comes to journalistic methodology. It guards against arbitrary decision-making, and it gives people a basis to complain if they feel the organization has overstepped its bounds.

Whether a formal code exists or not, I believe every news organization should use the Supreme Court ruling as an opportunity to widen the debate about methods and practices. The public at large needs to be drawn into the discussion. And there have to be ways to hold journalists and their organizations accountable both for their guidelines and how journalists put those practices into action on a daily basis.

Many news organizations have seen their credibility plummet in recent years, as people grow tired of journalistic methods they don’t understand or trust. When managing editors or news directors take arbitrary decisions on newsgathering practices, or are vague about explaining their rationale, it only adds to the mistrust. A free-ranging, inclusive, ongoing and transparent discussion would be a healthy development.

Cecil Rosner is managing editor for CBC Manitoba and editor of J-Source’s Investigative Journalism area. He teaches investigative journalism at the University of Winnipeg, and is the author of Behind the Headlines: A History of Investigative Journalism in Canada.

(Image by Joel Mark Witt. Use under Creative Commons license.)