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    ROB FORD AROUND THE WORLD

    Samantha Fernandes and Amanda KlineJN8107: Standards of Journalists Care

    Ryerson University

    Final Revision: January 20, 2014

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    These headlines have something in common: Toronto Police receive video of Mayor taking

    cocaine,Toronto mayor crack-smoking video in police hands,Crack-smoking Torontomayor urged to speak. They were all published by international news organizations, and they

    are all libelous.

    Since Gawker.comand the Toronto Starreleased stories on May 16 and 17, 2013, alleging tohave 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. Fordsappearance 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 BBCs global news website.

    Our research discusses how Ford coverage has varied around the world, including in countrieslike 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 theaid of legal experts, and offer advice for journalists from leading investigative reporters from the

    United Kingdom and the United States.

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    Rob Ford around the worldIn 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 May2013, 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 ofthis coverage contained errors, raising questions about concern for international libel law and therepercussions 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 lookat 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 Todayhad 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 TorontoStar, and have been a mix of serious reports and comediccommentary 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 PressEscalating 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 includecoverage of the mayor in their International section, their primary focus was on opinion

    columns written by Jennifer Preston and blogs by Robert Mackay.

    Gawkers coverage has been purely satirical since publishing that they had viewed the video ofthe 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 outof 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 Fairmagazine has published five small stories on their website in relation to Rob Fordsince May of last year, starting on May 17, 2013. Their coverage has been mainly comedic and

    sarcastic, and frequently cites USA Todays coverage. In an onlinearticle from Oct.31, the ledeof 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 Britains national public broadcaster and most-watched news channel, headquartered

    in London. Their coverage of Ford has been multi-platform, including online, radio and TVbroadcast, and they produced 26 stories related to Ford between May 2013 and Nov.8, 2013,

    with the first articleappearing on May 17, the same day the Toronto Starprinted their storyabout viewing the video allegedly showing Mayor Ford smoking crack cocaine.

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    BBCs coverage of Ford has been consistent, original and up-to-date as news has broken.Headlines are accurate and clips from Fords press conferences are often included as a video

    addition to the written articles. BBC Washington correspondent Rajini Vaidyanathan was evensent to Toronto to cover the story. In her BBC World broadcast piecefrom Nov.7, Vaidyanathan

    emphasized the international-scope of the story, saying that, Canadian politics rarely registers

    internationally, but Toronto Mayor Rob Fords admission that he smoked crack cocaine changedall that.

    Like the BBC, theGuardian, a British national daily newspaper, also produced 26 stories onFord 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 comedicand opinion-oriented

    articles created a markedly different tone to the narrative displayed by BBC, and includedcomparisons 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 StarcolumnistHeather MallickandToronto StarreporterRobyn Doolittle, who explained the

    scandal and the effect on Torontonians in their own words.

    While coverage by BBC and theGuardianwas accurate and frequent, the Scottish daily paperThe Scotsmanerred 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 thevideo. (Across the Irish Sea in Cork, anIrish 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 theAssociated Press, although the few original articles in News.com.au and the Sydney Morning

    Heraldincluded a significant amount of context about the mayor and the history of hisbehaviour. 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 quotationmarks, 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 inFrench and English, but the ones pertaining to Ford only appeared in English. In the worlds

    leading French newspaper,Le Monde, coverage of Rob Ford was ignored until the mayorsadmission 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 NouvelleRpubliquepublished their only article relating to Rob Ford on Nov. 11, which was a news-hit

    about the most recent video purchased by the Star.

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    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 otherwisedefensible. 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 statementhas disparaged the reputation of the individual, corporation or organization.

    While these allegations may be difficult to contradict, the media can rely on a variety ofdefences. These defences include truth, fair comment (statements of opinion on matters of public

    interest), qualified privilege (a defence protecting some reports on public proceedings), andvarious 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 undertheir 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. Inthe case of a company, that means serious financial harm attributable to the libel.

    Thats 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 Torontomedia 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 defenceunderBritish common law, although theReynolds casewas subsumedby a later high court ruling,

    Jameel v. Wall Street Journal.

    David Leigh, former investigations executive editorat the Guardianand author of Wikileaks:Inside Julian Assanges 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 withouthaving 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 anumber 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 thecompany, 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 andapplied at the state level.

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    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 theFirst Amendments 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 theNew York Times Co. v. Sullivansignificantly altered libel and defamationlaw 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 trueand published it anyway, or they were reckless with regard to its truth or falsity.

    Britains 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 astoryrevealing 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 youve got aReynolds 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 didnt 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 onpublishing details about public figures and if they werent public figures his lawyer said hed

    have a big problem.

    In France and Quebec, torts such as libel do not rely on the (judge-made) common law but onlegislation 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 lawsmake 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 thatthere 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 failedto meet professional standards of conduct.

    Public interest can be factor, but its not sufficient. Truth can be factor, but its not sufficient,

    said Rogers.

    Its about the relationship between the pursuing party and the defendants and the nature of thepublication involved.

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    The case of the Irish libelIn 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 IrelandsIrish Examineron Nov.1, 2013. It has still not beenconfirmed that Ford was smoking crack-cocaine in the video, although he admitted on Nov. 5that 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 theExaminerprior to hisNovember 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. TheInternet 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 thecountry 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, welltheIrish Examinerhas readers in Canada, sometimes thats veryhard to prove, said Glasser.

    Not in this case. A quick Internet search revealed that theIrish Examiners story was published

    onBreakingnews.ie, a breaking news site owned by Landmark Digital, an Irish media companythat runs both sites. On Nov.1, 2013, the story was posted with the same defamatory headlineon

    the Vancouver Stars website, an online Vancouver news site, with attribution toBreakingnews.ie--creating a direct connection to Canadian readers and potentially strengthening

    Fords case. Republication is also not a defence in Canada, making the Vancouver Star liable forthe 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 whenplaintiffs 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-lawstrict-liability tort can be more rigorous than U.S. and Civil Code suits.

    Americas so-called SPEECH Actis designed to discourage suits in foreign courts by requiring

    First Amendment principles to be applied before enforcing a foreign courts libel judgment. Andthe United Kingdoms 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 forlibel tourism. Meanwhile, Ireland, another common law jurisdiction, is one of the most plaintiff-

    friendly libel jurisdictions in the world, according to Rogers.

    Although Fords admissionon Nov.5, 2013, to smoking crack-cocaine complicates and weakenshis case as a plaintiff in either Ireland or Canada, it does not make it impossible.

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    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 toprove 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.

    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 laterrevelation of truth is not a defence.

    So in this [Irish] example, had it been a French website, [Ford] couldve killed them, said

    Glasser.

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

    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. Dont be in a rush to get itwrong

    It doesnt matter whether youre in Germany, France, Switzerland or Swaziland, if its true, if

    its fairly written, if its in the public interest, youll be fine and youll take your chances in anyfair court.

    That said, Canadas 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 theircountry under that law, he said.

    While awareness of the law is important, Richard Tofel, president ofPro Publicaand former

    assistant publisher of The Wall Street Journal, advised journalists to seek professional legaladvice.

    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 dont encourage people here or anywhere elseto 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 its going to become a problem in the future, I dont know, said Leigh.

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    Youve got to be aware of the different libel laws in different jurisdictions because if you are

    going to publish in different jurisdictions then youve 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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