How the affair of the crack-smoking mayor Rob Ford underlines the need to reform our libel laws
Published 16/05/2014 | 09:35
The exposure of Canada's bad-boy mayor makes an unarguable case for overhauling the libel laws in Northern Ireland, writes Dean Jobb.
Rob Ford – the profane, crack-smoking darling of late-night television who doubles as mayor of Canada's largest city, Toronto – has been called many things. Here's a new one: poster boy for the reform of libel law in Northern Ireland.
As the province debates whether to join England and Wales in overhauling the libel laws to encourage public-interest journalism and to deter frivolous lawsuits, it might want to consider how revamped defamation laws helped the Canadian media expose Ford's abuse of alcohol and drugs.
Canada inherited Britain's common-law heritage and, along with it, libel laws that often allowed reputation to trump free speech.
As in the United Kingdom, journalists who relied on the defence of truth, or justification, were expected to prove their allegations in court.
The efforts taken to investigate a story, or the public's interest in what was reported, made no difference in the eyes of the law.
This all changed in 2009, when Canada's supreme court wiped out two costly libel verdicts against the media and created a new defence of "responsible communication in the public interest".
As the name suggests, it is modelled on the Reynolds "responsible journalism" defence which the House of Lords championed a decade earlier and which is now enshrined in the Defamation Act 2013 that some in Northern Ireland are hesitant to adopt.
The defence shifts the focus from what was reported to how the story was researched and reported. Journalists who act professionally and responsibly as they investigate issues of public importance, who gather as much information as possible and give the target of the story ample opportunity to comment, or issue a denial, can expect to be shielded from a libel suit – even if there's little solid evidence to support their allegations.
So what has all of this to do with Rob Ford? The mayor's habits had been the subject of gossip for many months, but journalists could find few witnesses willing to discuss his behaviour and none willing to be quoted by name.
Reporters with the Toronto Star newspaper were able to view a video that purportedly showed the mayor smoking crack, but could not obtain a copy.
The Star finally broke the story in May 2013. Toronto's Globe and Mail followed up with an investigation of Ford's past connections with people in the drug trade, but could not entice a single source to go on the record.
The revelations were met with blustering denials from Ford, but he took no legal action to protect his reputation.
Greg McArthur of the Globe and Mail, one of the journalists on the story, recently told the Canadian magazine The Walrus that the responsible communication defence "played a major role" in the media's ability to report the allegations.
"I was definitely comforted by the fact that we had the ammunition. I knew it would provide us with an opportunity to tell the story," he said.
Six months passed before detailed records of a police investigation into Ford and his associates were made public – thanks to other legal precedents that have eased publication restrictions on the Canadian media – and confirmed the existence of the crack-smoking video.
Ford was forced to admit his drug use and his earlier denials were exposed as deliberate lies.
As the Northern Ireland Law Commission begins consultations on the law of defamation and whether to follow the lead of England and Wales, Canada's experience with libel reform would prove instructive.
Reputations are not fair game in Canada. The sky has not fallen in. But investigative reporters have more encouragement and better legal protection as they go about the business of making sure governments act in the public interest – and politicians tell the truth.
Northern Ireland politics may never see the likes of Rob Ford. But should a politician with so much baggage and so ill-suited for high office ever emerge, the media should be free to alert the public – even when conclusive proof of misbehaviour or wrongdoing is elusive.
- Dean Jobb is the author of Media Law for Canadian Journalists (Emond Montgomery Publications, Toronto, 2006). He is an associate professor of journalism and associate director of the School of Journalism at the University of King's College in Halifax, Nova Scotia
The rocky road towards change
The Defamation Act 2013 was enacted to reform the UK's libel laws – widely considered to be among the world's most draconian.
The Act sets out to ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation.
Its supporters claim the legislation reverses the chilling effect previous libel laws had on freedom of expression. It now applies to England and Wales (and, to a lesser extent, to Scotland), but not Northern Ireland after the-then Minister of Finance, Sammy Wilson, withdrew an Executive paper he had prepared on the subject.
Ulster Unionist leader Mike Nesbitt sponsored a Private Member's Bill in the Assembly last year, aimed at bringing Northern Ireland's libel legislation into line with England and Wales's updated laws.
However, Sammy Wilson's successor at the Department of Finance, Simon Hamilton, referred the matter to the Northern Ireland Law Commission, effectively stalling Mr Nesbitt's Bill.
The commission has said a consultation document will be published in the autumn – possibly in early October.
This will be followed by a three-month public consultation.