Rob Ford Around the World. What international coverage spotlighted about differences in media law

By Samantha Fernandes and Amanda Kline

  1. These headlines have something in common: “Toronto Police receive video of Mayor taking cocaine,” “Toronto mayor crack-smoking video in police hands,” “‘Crack-smoking Toronto mayor’ urged to speak”. They were all published by international news organizations, and they are all libelous.

     

    Since Gawker.com and the Toronto Star released stories on May 16 and 17, 2013, alleging to have witnessed a video of Mayor Rob Ford smoking an illegal substance, international media have followed the story and have propelled the Mayor into the international spotlight. Ford’s appearance in international headlines has in turn become a story in itself here in Canada.

     

    When Toronto Police announced they had possession of the video, the story was the second most-read item on the BBC’s global news website.

     

    Our research discusses how Ford coverage has varied around the world, including in countries like the United States, the United Kingdom, Australia, France and the Republic of Ireland, highlighting differences in these countries’ libel law. We will describe these differences with the aid of legal experts, and offer advice for journalists from leading investigative reporters from the United Kingdom and the United States.  


    Rob Ford around the world

    In order to investigate the types of international coverage on Rob Ford, we looked at the accuracy and language used in online articles and broadcasts published about Ford from May 2013, to Nov. 8, 2013, in the United States, the United Kingdom, Australia, and France.

    Overall, there has been a large variety in the scope, tone and depth of this coverage. But some of this coverage contained errors, raising questions about concern for international libel law and the repercussions for these publications if Ford had pursued action. We selected particular publications in each country to reflect a variety of media and types of viewership. Here is a look at the coverage by those publications in each country:

     

    The United States:  

    American coverage of Rob Ford, while frequent, has been mostly satirical, comedic and opinion-based. Out of the sources we assessed, national daily paper USA Today had the most frequent coverage of Rob Ford, publishing 28 stories related to Ford between May 2013, and Nov.8, 2013. Their reports were mainly from the Associated Press or frequently cited Canadian publications, such as the Toronto Star, and have been a mix of serious reports and comedic commentary on the saga.

     

    The New York Times’ coverage of the Rob Ford scandal began before it was a scandal. It was Ian Austen who wrote the first article regarding the mayor on May 7, 2013, “Mayor Feud with Press Escalating in Toronto.” The coverage then began to focus on recent developments of the scandal, for a total of 15 articles, op-eds and blogs up until Nov.8. While the newspaper did include coverage of the mayor in their ‘International’ section, their primary focus was on opinion columns written by Jennifer Preston and blogs by Robert Mackay.

     

    Gawker’s coverage has been purely satirical since publishing that they had viewed the video of the mayor allegedly smoking crack cocaine. This is evident in headlines such as “The Assassination of Canada by the Coward Rob Ford,” saying that, “Rob Ford should be kicked out of Canada, right into that immense freezing lake that has for so long kept the vulgar Americans out of the nice part of North America.”

     

    Vanity Fair magazine has published five small stories on their website in relation to Rob Ford since May of last year, starting on May 17, 2013. Their coverage has been mainly comedic and sarcastic, and frequently cites USA Today’s coverage. In an online article from Oct.31, the lede of the post calls the video of Ford “the most anticipated film of the year.” The magazine even created a ringtone out of the audio from the video of Rob Ford threatening to murder someone.

     

    The United Kingdom:

    The BBC is Britain’s national public broadcaster and most-watched news channel, headquartered in London. Their coverage of Ford has been multi-platform, including online, radio and TV broadcast, and they produced 26 stories related to Ford between May 2013 and Nov.8, 2013, with the first article appearing on May 17, the same day the Toronto Star printed their story about viewing the video allegedly showing Mayor Ford smoking crack cocaine.

     

    BBC’s coverage of Ford has been consistent, original and up-to-date as news has broken. Headlines are accurate and clips from Ford’s press conferences are often included as a video addition to the written articles. BBC Washington correspondent Rajini Vaidyanathan was even sent to Toronto to cover the story. In her BBC World broadcast piece from Nov.7, Vaidyanathan emphasized the international-scope of the story, saying that, “Canadian politics rarely registers internationally, but Toronto Mayor Rob Ford’s admission that he smoked crack cocaine changed all that.”

         

    Like the BBC, the Guardian, a British national daily newspaper, also produced 26 stories on Ford between May 2013 and Nov.8, 2013, however, their coverage was a mix of Associated Press copy, stories by Toronto-based and U.S.-based reporters, as well as some satirical columns. While coverage was frequent and up-to-date, the inclusion of comedic and opinion-oriented articles created a markedly different tone to the narrative displayed by BBC, and included comparisons to U.K. politicians, like London Mayor Boris Johnson. But whereas BBC coverage was by BBC reporters, the Guardian included opinion pieces by Canadians, like Toronto Star columnist Heather Mallick and Toronto Star reporter Robyn Doolittle, who explained the scandal and the effect on Torontonians in their own words.

     

    While coverage by BBC and the Guardian was accurate and frequent, the Scottish daily paper The Scotsman erred in a headline published on Nov.2, which said, ,“Toronto mayor crack-smoking video in police hands”, when it was not yet proven that Ford was taking cocaine in the video. (Across the Irish Sea in Cork, an Irish Examiner story on Nov.1, 2013 had similarly stated: “Toronto Police receive video of Mayor taking cocaine.”.)

     

    Australia:

    Australian coverage of the Rob Ford scandal began on May 18, 2013 with an article published on News.com.au. The majority of articles published during this time were courtesy of the Associated Press, although the few original articles in News.com.au and the Sydney Morning Herald included a significant amount of context about the mayor and the history of his behaviour. Some headlines were problematic, such as a headline by Fairfax Media on May 28, 2013: “‘Crack-smoking Toronto mayor’ urged to speak.” Although the allegation is in quotation marks, that would be no defence given the absence of clear evidence that Ford was smoking crack.

    France:

    Coverage in France has been limited to breaking news. This is demonstrated in Herald De Paris, where coverage was frequent, but consisted only of wire copy. The website published stories in French and English, but the ones pertaining to Ford only appeared in English. In the world’s leading French newspaper, Le Monde, coverage of Rob Ford was ignored until the mayor’s admission to smoking crack cocaine on Nov. 6, 2013. 20 Minutes France had five articles written by their reporters, relying heavily on Agence France-Presse wires.  La Nouvelle République published their only article relating to Rob Ford on Nov. 11, which was a news-hit about the most recent video purchased by the Star.

     

     

    Libel law around the world

    In Commonwealth countries including Canada, the United Kingdom and Australia, the onus is on a libel defendant to prove that a reputation-harming statement is either true or otherwise defensible. According to media lawyer Brian Rogers, in order to initiate a claim, the plaintiff must prove only that the statement was made to a third party, that the statement was made specifically about the individual, corporation or organization in question, and that the statement has disparaged the reputation of the individual, corporation or organization.

     

    While these allegations may be difficult to contradict, the media can rely on a variety of defences. These defences include truth, fair comment (statements of opinion on matters of public interest), qualified privilege (a defence protecting some reports on public proceedings), and various versions of a special media defence for responsible journalism or, as it is known in Canada, responsible communication on a matter of public interest. In the latter type of defence, defendants need to satisfy the court that they conducted their reporting with a concern for accuracy and fairness.

     

    Up until recently, Canada and the United Kingdom have been running on parallel paths under their shared legacy of common law, but the United Kingdom has now passed a new Defamation Act, effective 2014, that will bar any defamation claim that does not involve “serious harm.” In the case of a company, that means serious financial harm attributable to the libel.

    “That’s a high barrier and will, I think, be a means to cut-off a lot of litigation early by defendants objecting to the claim as being just too insignificant to merit a suit,” said Toronto media lawyer Brian Rogers, who has represented newspapers, magazines, broadcasters and writers.

     

    The Defamation Act 2013 greatly extends and strengthens what already exists in common law, but only in clear cases would it be possible to have the case dismissed for insignificance. This new act has put into statutory form what is still often known as the Reynolds defence under British common law, although the Reynolds case was subsumed by a later high court ruling, Jameel v. Wall Street Journal

     

    David Leigh, former investigations executive editor at the Guardian and author of Wikileaks: Inside Julian Assange’s War on Secrecy, said he has been relying on the Reynolds defence in his work for several years.

     

    “What the Reynolds defence does is commits British publishers to publish material without having to prove its truth to legal standards provided they engage in responsible journalism,” said Leigh.

     

    Australia has also gone through some important changes through statute, such as introducing a number of important restrictions on the use of libel litigation. Australia prohibits businesses with more than 10 employees from suing for libel; however, executives, or people involved in the company, are still able to sue individually. Australia, like Canada, is a federal jurisdiction, and had to introduce defamation legislation at the federal level that could then could be adopted and applied at the state level.

     

    Similarly to Commonwealth countries, U.S. law stems from English common law. However, this changed in the early 1960s when the Supreme Court constitutionalized libel law, applying the First Amendment’s protection of free debate and discussion. As a result, plaintiffs had to show that the alleged defamation was false--shifting the onus of proof from the defendant.

     

    The U.S. court case the New York Times Co. v. Sullivan significantly altered libel and defamation law concerning public figures. Plaintiffs who are public figures are only required to prove that the defendants acted with actual malice, meaning that the defendant either knew it was not true and published it anyway, or they were reckless with regard to its truth or falsity.

    Britain’s Leigh says he has faced differences in libel law when reporting on public figures when working with the International Consortium of Investigative Journalists in the United States for a story revealing the owners of offshore accounts. Leigh was required to operate under British legal advice, while his U.S. counterparts were given different advice.

     

    “Our legal advice was you have to trace these people and put it to them so that you’ve got a Reynolds defence, but lawyers in the U.S. had a different set of parameters,” said Leigh.

     

    “The lawyers told Gerard Ryle [Director of the ICIJ], he didn’t have to worry about libel in the same way as in Britain, but to get the protection of free speech laws he needed to concentrate on publishing details about public figures and if they weren’t public figures his lawyer said he’d have a big problem.”

     

    Listen to Leigh describe how libel laws affect his reporting, locally  and internationally: 


     


  2. In France and Quebec, torts such as libel do not rely on the (judge-made) common law but on legislation within the French civil code, which traces its origins back to the Napoleonic Code established in 1804.

     

    While freedom of expression is generally protected in France, strict defamation and privacy laws make it easy to sue for defamation. Losing a libel case against a public official carries a high fine of €45,000, as opposed to libel against a private individual, which carries a fine of €12,000, chilling public interest criticism of politicians and government officials.

    In 1994, the Court of Appeal of Quebec held that defamation in Quebec must be governed by a reasonableness standard and not strict liability. It is therefore required that the plaintiff show that there was a fault committed by the defendant (a wrongful act or existence of an injury).

    In the case of professional journalists, therefore, the plaintiff must show that the journalist failed to meet professional standards of conduct.

     

    “Public interest can be factor, but it’s not sufficient. Truth can be factor, but it’s not sufficient,” said Rogers.

     

    “It’s about the relationship between the pursuing party and the defendants and the nature of the publication involved.”

     


    The case of the Irish libel

    In our research of international Rob Ford coverage, we came across headlines making then-unproven statements, such as, “Toronto Police receive video of Mayor taking cocaine,” published online by the Republic of Ireland’s Irish Examiner on Nov.1, 2013. It has still not been confirmed that Ford was smoking crack-cocaine in the video, although he admitted on Nov. 5 that he had in fact smoked the substance at some time in the past year or so.

    According to Rogers and U.S. lawyer Charles Glasser, former Global Media Counsel for Bloomberg News, Ford could have succeeded in a legal action against the Examiner prior to his November confession. 

     

    But where would he have launched such a suit? That depends. Any person can sue in the jurisdiction where the alleged tort took place or where the defendant is, explained Rogers. The Internet has complicated matters, since publication can occur all over the world. But in most cases, the defendant only has to establish the basic requirements of the defamation law in the country where it was published.

     

    “Ford might have sued in Canada or might have sued in Ireland. You can sue where the harm is, and Ford could argue, well…the Irish Examiner has readers in Canada, sometimes that’s very hard to prove,” said Glasser.

     

    Not in this case. A quick Internet search revealed that the Irish Examiner’s story was published on Breakingnews.ie, a breaking news site owned by Landmark Digital, an Irish media company that runs both sites. On Nov.1, 2013, the story was posted with the same defamatory headline on the Vancouver Star’s website, an online Vancouver news site, with attribution to Breakingnews.ie--creating a direct connection to Canadian readers and potentially strengthening Ford’s case. Republication is also not a defence in Canada, making the Vancouver Star liable for the content on their site.

     

    The ease of publishing stories that can reach an international audience has opened up the opportunity for plaintiffs to engage in something known as ‘libel tourism,’ which is when plaintiffs choose to pursue libel suits in countries based on their defamation laws. England and Wales have been known as the libel tourism hotspots of the world because the common-law strict-liability tort can be more rigorous than U.S. and Civil Code suits.

     

    America’s so-called SPEECH Act is designed to discourage suits in foreign courts by requiring First Amendment principles to be applied before enforcing a foreign court’s libel judgment. And the United Kingdom’s new Defamation Act will make it harder for foreign plaintiffs to pursue action because of a new “serious harm” test, making Canada and Australia likely new targets for libel tourism. Meanwhile, Ireland, another common law jurisdiction, is one of the most plaintiff-friendly libel jurisdictions in the world, according to Rogers.

     

    Although Ford’s admission on Nov.5, 2013, to smoking crack-cocaine complicates and weakens his case as a plaintiff in either Ireland or Canada, it does not make it impossible.

     

    Many “bold plaintiffs” have successfully sued over true allegations, even though truth is an absolute defence in common law, according to Rogers. Since the onus is on the defendant to prove that the statement is true in common law, and proving admissible evidence in court is often difficult and very expensive, plaintiffs sometimes sue hoping the defendant will issue an apology to avoid the expense of litigation.

     

  3. Brian Rogers: How even truth can't guarantee a win for libel defendants
  4. In theory, though, the truth of an allegation is an absolute defence under the common law, whether or not the defendant knew the truth at the time of publication. But in France, the later revelation of truth is not a defence.

     

    “So in this [Irish] example, had it been a French website, [Ford] could’ve killed them,” said Glasser.

     

    “Even if he confessed, later, if they did not have the confession at the time of the publication, the French newspaper or French website could not introduce his confession as evidence of truth.” 

  5.  
    What journalists’ should understand about international libel

    Being aware of international libel law and practising good journalism are the key ingredients for avoiding international, and local, defamation lawsuits, according to the experts we interviewed.

    “Look: get it right,” said Glasser. “Be fair. Be clear. Be precise. Don’t be in a rush to get it wrong…

     

    It doesn’t matter whether you’re in Germany, France, Switzerland or Swaziland, if it’s true, if it’s fairly written, if it’s in the public interest, you’ll be fine and you’ll take your chances in any fair court.”

     

    That said, Canada’s Rogers recommends seeking advice from locals who understand the libel law in the originating country of the person or story you are covering.

     

    “You have got to be aware that they could apply the law in their country and sue you in their country under that law,” he said.

                

  6. Brian Rogers' advice for journalists
  7. While awareness of the law is important, Richard Tofel, president of Pro Publica and former assistant publisher of The Wall Street Journal, advised journalists to seek professional legal advice.

     

    “Nothing good happens when journalists try to pre-censor themselves and try to play amateur lawyer getting ahead of the law,” said Tofel. “So I don’t encourage people here or anywhere else to do that.”

     

    But David Leigh, former investigations executive editor at the Guardian, says international libel will become a growing concern. “With publishing online, everything is available internationally, maybe it’s going to become a problem in the future, I don’t know,” said Leigh.  

     

    “You’ve got to be aware of the different libel laws in different jurisdictions because if you are going to publish in different jurisdictions then you’ve got to be aware that the laws are different.”

     

    So far, Rob Ford has sued no one, whether in his own country or abroad. Whether or not he decides to do so in the future, one thing is for sure: the world will be watching.

     


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