Supreme lessons in journalism

According to their curricula vitae, not one of Canada's top judges has ever worked as a journalist.

Nevertheless, without experiencing life in a newsroom, the current members of the Supreme Court of Canada have undoubtedly raised the bar for standards of ethical journalism in this country.

The high court's decision last month created a new defence against libel lawsuits for journalists called "the defence of public interest responsible communication." It should be mandatory reading for all working journalists.

In writing for the unanimous panel, Chief Justice Beverley McLachlin has written what may be the best text I've read on how to do ethical and excellent journalism that matters. And, lest anyone think a Supreme Court decision might be filled with dense legal mumbo-jumbo, McLachlin's writing is eloquent and accessible – a model of the journalist's goal to make hard facts easy reading.

In defining the criteria for "responsible" journalism, the Supreme Court addresses the obligation of those who report the news to be diligent in verifying information – the essence of reporting excellence. It impels journalists to be fair, to seek both sides of a story, to thoroughly assess the reliability of sources and to carefully consider the use of anonymous sources. And it makes it quite clear to deadline-driven journalists that the desire to get a "scoop" is not an excuse for irresponsible reporting.

The "responsible communication" defence gives writers, broadcasters and bloggers greater legal protection in reporting on matters in the public interest – even if they can't prove the truth of allegations against individuals who believe their reputation has been harmed by that reporting.

Until now, libel lawsuits required the media to prove the truth of whatever they published. The court ruled that traditional libel defences do not reflect Canada's Charter right to free expression.

Despite concerns that the new libel defence would allow reporters to "publish with impunity" untrue information, the court stated that the right to free expression "does not confer a licence to ruin reputation." Thus, the new defence is only available to those who report fairly and responsibly on issues in the public interest. Further, it puts the onus on journalists to prove they reported responsibly.

"Freedom does not negate responsibility. It is vital that the media act responsibly in reporting facts on matters of public concern, holding themselves to the highest journalistic standards."

The Supreme Court decision resulted from an appeal by the Toronto Star of a $1.45 million damage award for a 2001 article about Ontario developer Peter Grant, who had applied to expand a private golf course. Grant, a friend and supporter of former premier Mike Harris, sued the Star over the report, which quoted local residents' concerns that the golf course on his lakeside property was already a "done deal" given Grant's Tory ties.

Journalists have rightly lauded the landmark ruling. Though it holds us to high standards, it provides greater freedom to publish important information we believe the community has a right to know, even when the absolute truth of that information cannot be verified. In essence, as was stated in the Supreme Court hearing, the defence provides journalists with "the right to be wrong."

The ruling is "a triumph of press freedom" says Torstar Corp. chairman John Honderich, the Star's publisher when the article was published. It's also a historic and vital victory for this news organization. "The most important libel decision ever released by the Supreme Court," says lawyer Paul Schabas, who argued the Star's case before the top court.

For lawyer Bert Bruser, who has long worked closely within the Star's newsroom in preparing important stories for publication, the decision is "a game changer" that will "greatly expand" the Star's ability to do investigative work.

Bruser briefed the newsroom's management team this week on the journalistic implications of the ruling. Although the standards expressed by the court are those the Star has long strived to meet, Bruser made it clear that the defence puts the focus on the conduct of journalists in gathering and presenting information: "The higher the standard of diligence in verifying information, the better."

He told editors they have a responsibility to ascertain the credibility of reporters' sources and to know the identity of any confidential sources: "Who is the source, what is his track record, does he have an axe to grind?"

He also reminded editors of "the essential sense of fairness" the court expects in compelling journalists to give those reported on a chance to tell their side of the story. "Nothing is less fair than not trying to get the other side."

It will likely take a decade at least to know the impact on both journalism and the law of this historic ruling. But the evidence at hand is supremely clear: standards of journalism in Canada can only rise.

publiced@thestar.ca