Thursday, May 23, 2013

Why hasn’t mayor sued the Star?

The most puzzling thing about the video purporting to show Rob Ford smoking crack and the Toronto Star’s coverage thereof is Ford’s apparent reticence in suing the Star for defamation. The Star coverage has Ford cavorting with criminals and smoking crack. It’s hard to imagine a more serious defamation of our law and order mayor.

Suing the Star should be an easy task. If sued, the Star would have the onus of establishing one of two defences: truth or responsible communication. Truth would be a tough defence to pursue without the video and a thorough forensic analysis of it. While the Star might get its hands on the video in the future, it currently doesn’t have the video and can’t establish its authenticity. It’s doubtful anybody would be willing to testify under oath they supplied drugs to Ford or were present when Ford smoked crack.

For now, that leaves the Star with the responsible communication defence. Responsible communication is a relatively new defamation defence, made available in 2009 courtesy of 2 Supreme Court of Canada decisions, one of which coincidentally was a defamation lawsuit against the Star. The responsible communication defence is available when reporting on items of public interest, something about which the public has some substantial concern. Clearly any report on the mayor of Toronto engaged in criminal activity is a matter of very substantial public concern.

However before applying the responsible communication defence the court will review a list of factors to determine if the defendant acted responsibly. Given the seriousness of the allegations made against Ford the required level of diligence necessary to verify the allegations and show responsible communication would be significant. Viewing a video without taking any steps to authenticate the video or its source would likely fail to achieve the required level of diligence.

The court will also examine the urgency of the matter and ask whether a delay in publication could have assisted a search for the truth or whether the public’s need to know required the early publication. Clearly there was no urgency to publish. The fact that a foreign website had broken the story doesn’t justify the Star’s rush to publish.

Next, the court will examine the status and reliability of the sources. Here again the Star would lose out as its sources could hardly be deemed trustworthy, in addition to their anonymous status.

One of the most important factors in the use of the responsible communication defence is whether comment was sought on a timely basis and adequately reported. Again the Star falls short as no effort was made to obtain comment until the evening prior to publication. On the other hand, the Star did report Ford’s response quickly and prominently as soon as the response had been made.

Another significant factor is the language used and whether the Star reported the defamatory statements, not to establish their truth, but rather to report merely on the controversy of the existence of the video. Here again the Star falls short. True, the reports are replete with cleverly worded disclaimers. For example the Star reports that the video “appears” to show Ford smoking crack and the Star “was not able to verify” claims made by its source concerning the supply of drugs to Ford. But notwithstanding the clever use of disclaimers the overall tone of the coverage is clear: Ford was observed smoking crack.

Then there’s the matter of malice. Responsible communication will fail as a defence if the defendant has acted with malice. Certainly there’s enough bad blood on both sides for this to be a lively argument.

The Star has taken a calculated risk in rushing to publish and it seems the Star’s defences would fail and Ford should win. So why hasn’t he sued? The answer likely lies in the fact that as between Ford and the Star, only Ford knows if he has smoked crack and if there might be an authentic video. If he sues and the video surfaces and is authenticated, he’d lose and be stuck with a fortune in legal fees. But if the video is a fake Ford should win a large award.

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