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B.C. case will test libel law

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Late last month, Vancouver weekly newspaper the Georgia Straight published a story by journalist Laura Robinson that contained allegations John Furlong, former head of Vancouver's Olympic organizing committee, verbally and physically abused aboriginal students more than 40 years ago while a teacher in Burns Lake, B.C. The fallout from that article has been threatened defamation suits and countersuits. The promised lawsuits reflect the gravity of the allegations against Mr. Furlong. But they also reflect a sea change in Canada's defamation law crafted by the Supreme Court of Canada in late 2009.

After the Georgia Straight article was published, Mr. Furlong responded swiftly. He called a press conference, categorically denied all allegations of student abuse and lambasted the ethics of both Ms. Robinson and the newspaper, and announced that he would sue.

In an astonishing public response, Ms. Robinson challenged Mr. Furlong's attacks on her journalistic integrity. She announced she'll countersue him for defamation, for his accusing her of a "shocking lack of due diligence" and carrying on a personal vendetta against him. She also stated the article is supported by eight sworn affidavits of witnesses to, or victims of, the abuse.

Mr. Furlong riposted with a further public statement denying the alleged abuse and reiterating legal action was pending.

This isn't the way defamation suits normally play out in Canada.

Traditionally, an alleged defamer was best advised to keep his or her mouth shut about the complained-of statements until a court ruled on them. The author of an alleged libel -- defamation that's printed or permanently recorded, as opposed to slander, which is merely orally stated -- who publicly yammers on about it risks inviting further legal action or a higher damages award. The modern trend is for courts to consider an alleged libeler's conduct right up to the court's verdict. Repeating a libel can multiply the damages award, or result in a separate award for punitive or exemplary damages for comments made after the initial libel.

But Ms. Robinson and the Georgia Straight jettisoned that time-tested legal strategy, likely emboldened by the Supreme Court of Canada's newly minted legal defence to a defamation claim -- "responsible communication."

The defence protects journalists (and their publishers) who write on matters of public interest from liability for defamation even if they get some facts wrong, provided reasonable steps were taken to ensure the story was fair and accurate. Reasonable steps, the Supreme Court has said, means the author and publisher diligently attempted to verify all defamatory allegations before disclosing them.

Reasonable is an elastic legal word. What's reasonable depends on the circumstances. The Court, however, suggested several factors be considered including the seriousness of the allegation, the public importance of the matter, the degree of urgency, the status and reliability of the source, and whether the defamed person's side of the story was sought and fairly reported.

Whether Mr. Furlong was given opportunity to respond to the allegations before they were published is already contested.

Ms. Robinson says she tried to reach Mr. Furlong through his lawyer. Mr. Furlong says he sent numerous written cautions to Ms. Robinson about her investigations. He also states the Georgia Straight didn't place a single call to him to verify the published story.

However, the fact that Robinson took the precaution of taking sworn statements is helpful to her defence. Presumably they were taken with one eye on a defamation claim. Accordingly, she and the newspaper can argue they got the best evidence available before going to print.

The case will likely be a shakedown cruise for the new responsible communication defence, a defence expressly tailored by our highest court to deter libel chill. But just how well the defence warms up the environment for investigative journalism awaits the outcome of this case, and others like it.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition October 10, 2012 A10

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