Wednesday, December 30, 2009

What Exactly is Responsible Journalism?

Now that the Supreme Court of Canada has established a new defence to defamation -- responsible communication on a matter of public importance -- it will be interesting to see how much journalistic consensus develops on exactly what constitutes responsible communication.

There is no question that the court's ruling modernizes Canada's defamation law and provides greater leeway for journalists to probe matters of public importance. But it also places a greater burden on individual journalists and news organizations to debate and constantly perfect methods and principles. This is particularly true when it comes to investigative journalism.

For example, is it responsible for news organizations to use hidden cameras? Some do, others don't. Is it responsible for journalists to misrepresent themselves in the gathering of information? Some do, others don't. What about engaging in the so-called ambush or doorstop interview? Will the courts deem that to be fair game?

Even when it comes to more routine decision-making in the journalistic process, there are differences between organizations. Some city editors and news directors will publish the names of anyone charged with a criminal offence. Others will suppress the names of people accused of sex crimes. Some will publish names of the accused only if they intend to follow up the story to ensure that an eventual acquittal or dropping of charges isn't missed. Which of these approaches is the most responsible one?

And exactly how far should journalists go in exposing every last detail of the Tiger Woods saga?

Not every news organization in Canada has an established code of ethics, and I would suspect that not too many bloggers have one either. The absence of a written policy or set of guidelines can lead to ad-hoc decisions when it comes to determining what is responsible and what isn't. Some journalists tend to make it up as they go along, arguing that their gut is the best test for what feels right.

Even when a written set of journalistic practices exists, there are grey areas. While certain practices are frowned upon, they can be seen as acceptable in exceptional circumstances. Just what those circumstances are becomes a matter of subjective interpretation. It would be hard to imagine an absolute bible of journalistic laws that provided a clearcut answer every time on whether an act was responsible or not.

Not even the Supreme Court is willing to say definitively which practices are responsible and which are not. For instance, here is what it had to say about the controversial question of confidential sources:

"It may be responsible to rely on confidential sources, depending on the circumstances; a defendant may properly be unwilling or unable to reveal a source in order to advance the defence. On the other hand, it is not difficult to see how publishing slurs from unidentified 'sources' could, depending on the circumstances, be irresponsible." (Para. 115, Grant v. Torstar).

This is a groundbreaking statement from Canada's highest court that the reliance on confidential sources might be a proper journalistic practice. To date, journalists have had no substantial judicial protection when it comes to refusing to reveal sources. Some lawsuits have been lost as a result, and in some cases journalists have gone to jail for refusing to reveal their sources. But there is still no certainty here. The court is reserving its right to decide this question "depending on the circumstances," which is what many questions of journalistic ethics tend to revolve around.

Still, I believe an articulated set of standards is far better -- and in light of the Supreme Court's decision, now far more crucial -- than nothing at all. It allows readers and viewers the opportunity to see what the news organization's thinking is when it comes to journalistic methodology. It guards against arbitrary decision-making, and it gives people a basis to complain if they feel the organization has overstepped its bounds.

Whether a formal code exists or not, I believe every news organization should use the Supreme Court ruling as an opportunity to widen the debate about methods and practices. The public at large needs to be drawn into the discussion. And there have to be ways to hold journalists and their organizations accountable both for their guidelines and how journalists put those practices into action on a daily basis.

Many news organizations have seen their credibility plummet in recent years, as people grow tired of journalistic methods they don't understand or trust. When managing editors or news directors take arbitrary decisions on newsgathering practices, or are vague about explaining their rationale, it only adds to the mistrust. A free-ranging, inclusive, ongoing and transparent discussion would be a healthy development.

Thursday, December 10, 2009

Should reporters be deputies for the police?

A ruling by the Manitoba Court of Appeal this week has some important lessons for police and the media, and the troubling tendency on the part of police agencies to use media to further their investigations.

Five years ago, police forces were given a new tool called the production order. Though it bears some similarities to a search warrant, a production order can compel someone who is not the subject of an investigation to turn over documents and video tape to the police.

When a media outlet is served with a production order, a series of important questions touching on freedom of the press are raised. These can be particularly vexing when it comes to investigative journalism, but the principles involved are important for all types of reporting.

In April 2008, RCMP were attempting to arrest Terrence Yellowback following an alleged assault in God's River, Manitoba. Police allege he charged an officer with a weapon, at which point he was shot in the hip.

The weapon turned out to be a table leg. When the officer realized Yellowback wasn't brandishing a gun, she resorted to her Taser to immobilize him.

Later that month, the Manto Sipi Cree Nation called a press conference to criticize RCMP for its decision to investigate the circumstances of the shooting itself. Yellowback also spoke at the press conference, calling for an independent inquiry into the shooting. The press conference was covered widely in the media.

Instead of responding to the call for an independent inquiry, the RCMP decided to ratchet up its own investigation. Police were granted an ex parte hearing before a provincial court judge. The judge issued production orders which would force CBC, CTV, Global and APTN to turn over all their videotaped material from the press conference and the one-on-one interviews that followed.

And everything about these production orders was to remain a secret. Here is the provision as it applied to the CBC:

Canadian Broadcasting Corporation and any employee, servant or agent shall not directly or indirectly disclose or permit disclosure of the content, existence or operation of this order, in any manner, or to any person except as may be necessary for the purposes of compliance with its terms or obtaining the advice or assistance of legal counsel unless otherwise ordered by a Court of competent jurisdiction.

Two other media outlets, Global Winnipeg and APTN, complied with the production orders and turned over their tape to the police. But RCMP still insisted the other stations do the same, hoping they would get additional information from interviews that might appear on the tapes.

The law creating production orders came into force in 2004. Unlike search warrants, they can force people who aren't under investigation to produce documents, or even to prepare documents based on data already in existence, where those materials might pertain to the commission of a crime.

Failing to comply with a production order carries a fine of up to $250,000, or a six-month jail term.

CBC and CTV refused to comply with the orders and took the matter to court, where Justice Glenn Joyal of Manitoba Court of Queen's Bench quashed the orders. He ruled that the production orders constituted an unreasonable search of a media organization pursuant to section 8 of the Canadian Charter of Rights and Freedoms.

The Attorney General of Manitoba and Canada both appealed that decision to the Manitoba Court of Appeal. Earlier this week, the appeal court upheld Justice Joyal's judgment and dismissed the government's appeals.

The original judge's ruling said the RCMP knew about the press conference in advance and could have tried to attend if it wanted to, but chose not to. Instead, it tried to deputize the media after the fact, and use them as part of its investigative machinery.

"Production orders against the media casually given can have a chilling effect on the appearance of independence and on future actions of members of the public and the press," the appeal court ruled. "There may be a resulting loss of credibility and appearance of impartiality."