Who’s afraid of ethics in the law?

By
Stephen J. A. Ward

As journalists follow the election campaign, they might not feel the rumblings of a seismic shift that may soon shake the ground rules of Canadian journalism.

The Supreme Court of Canada is reviewing a new libel defence for journalists who practice something called “public interest responsible journalism.” The review concerns a decision last November in the Ontario Court of Appeal, in the case of Cusson v. Quan, a libel suit against the Ottawa Citizen. Justice Robert Sharpe ruled that courts should do a better job of balancing the freedom of expression and the protection of reputations. Libel laws impose a high legal standard on news media and make serious journalism risky. He ruled that libel action against a story might fail even if it turns out to be false. A journalist might be off the legal hook if she could show that she acted ethically. That is, the story was in the public interest and she was as accurate and fair as possible.

The new defence would move Canada towards the greater libel protections that exist in U.S. media law. And rightfully so. Media lawyers have praised the ruling, but, interestingly, others have raised fears that the new defence would actually inhibit the press.

These fears are exaggerated. They also get the significance of the ruling backward and they misunderstand the role of ethics in media law.

Here is why.

One fear is that the new defence would “embed” ethics in law and that is, presumably, a bad thing. It will lead to more restrictions on the press and provide a new weapon for those who want to sue journalists. How justified is this fear? First, the same argument has been used for decades against developing codes of journalism ethics. But the dreaded results — a restricted press and a widespread legal abuse of codes — has not occurred. Second, ethics is already “embedded” in media law. Ethicists, including myself, are called upon to appear in court and talk about standards in journalism.

Also, if you survey major media libel suits over the past decade, you will find copious references by judges to the standards of journalism. Their judgments are based, in part, on ethical considerations, from the fair editing of interviews to whether reporters ignored facts that didn’t fit their story. The new defence would formalize this appeal to standards, while supporting controversial, serious public journalism. What is so bad about that? It is existing libel laws that inhibit journalism; the new defence would assist good journalism.

Courts have always restricted the press. That is not the issue. The issue is whether certain restrictions are valid. What sort of journalism would the new defence not protect? It would not protect journalism that, (a) is untrue, (b) violates standards such as accuracy, verification and fairness and (c) is libelous. But why should we worry about defending that sort of journalism? These bad forms of journalism have always been risky, and so they should be.
    
Another criticism is that it is improper for journalists and journalism associations to get involved in supporting the new defence, or to appear in court to give evidence on standards. “Why should journalists help the courts police journalism?” This is nonsense. Journalists should help the courts understand the issues. They should push for media laws that protect hard-hitting, well-informed journalism. It is no violation of journalistic independence to try to shape this framework, given the public importance of journalism. All professions appear before public tribunals, judges and government committees to explain their standards and methods and to argue for or against certain measures. Why shouldn’t journalists do the same?

Focusing on these fears diverts attention from the important questions that journalists need to face if this shift in media law occurs. Here are some questions: What standards should be used in court when professional practices are questioned by new forms of journalism? What code of ethics represents Canadian journalists? What standards should not be included in court cases? How should the courts interpret contested standards such as balance or objectivity? These are the real, legitimate concerns that journalists need to start discussing.  

Let’s not be distracted by the old bugbear that ethics leads to a muzzled press.

The new defence would persuade more journalists to take ethics seriously. As one writer put it, journalists would have to “dust off the ethics handbooks.” For years, many journalists and members of the public have ridiculed “journalism ethics” as an oxymoron. They dismissed codes of ethics as idealistic and ineffectual. This new defence would make ethics more relevant to daily practice and good journalism. To those who have in the past dismissed ethics as lacking “teeth,” I ask: What is your problem now?  

Here is a chance to give ethics some bite.

Stephen J. A. Ward is the James E. Burgess Professor of Journalism Ethics in the School of Journalism and Mass Communications at the University of Wisconsin-Madison. He is the founding chair of the Canadian Association of Journalists’ (CAJ) ethics advisory committee and former director of the University of British Columbia’s Graduate School of Journalism.