SCC veers away from the ledge on source protection

Canada’s Supreme Court has spent much of 2010 thinking about the rightful place of the media in our society. First came the decision about whether or not a case could be made for “responsible journalism” resulting from Justice Sharpe’s decison, of the Ontario Appeal Court, to tuck the concept into his ruling regarding the libel suit known as Cusson v. Quan.

The challenge with the notion of granting journalists “source protection” rights is quite straightforward in my mind. Journalists are, by nature, as falliable as the rest of society.

The idea that every single media piece, investigative or otherwise, deserves the same standing as Watergate is preposterous, even if the specific SCC case involved the unusual circumstance of the police seeking information from a journalist.

The import of the Supreme Court’s decision appears to be more far reaching, at least to media defence lawyers and the Toronto Star’s editorial board. According to them, at least, journalists deserve special standing before the courts.

Here’s the challenge with that premise. They are human. They have, for decades, shown all of the similar human tendancies as those who drive TTC buses, pass laws in Parliament, or work at Wall Street investment banks.

In the United States, for example, three major national newspaper outlets (The New York Times, The Washington Post and USA Today) have all had to face the fact that high profile and even Pulitzer Prize award-winning journalists on their staff have lied about their published work, their sources and the research allegedly supporting same.

In the case of The New York Times and USA Today, for example, the two journalists in question (Kelly and Bragg) had been recipients of many awards, including the Pulitzer Prize. The headlines associated with those events included: “Reporter fabricated stories, USA Today finds”, Associated Press, March 20, 2004; “USA Today Finds Fabrications in Star Reporter’s Stories”, Washington Post, March 19, 2004; “Fear and Lying at USA Today”, Washington Post, January 11, 2004; “Jayson Blair scandal: NYT top editors quit”, Reuters, June 6, 2003; “Suspended NYT reporter Bragg says he’ll quit in a few weeks”, The Washington Post, May 27, 2003; “CORRECTING THE RECORD; [New York] Times Reporter Who Resigned Leaves Long Trail of Deception”, The New York Times, May 11, 2003; “Witnesses and Documents Unveil Deceptions In a Reporter’s Work”, The New York Times, May 11, 2003.

Fom the United Kingdom comes the stark reminder that media outlets themselves can be misled by “trusted confidential sources” with their own agenda to advance, particularly if the media outlet in question is so driven by the desire for “a scoop” that they don’t take the necessary steps to corroborate a 2004 story: “Fake abuse photos: Editor quits”.

We’ve also seen plenty of examples in Canada. There were the two National Post reporters who were forced to resign over separate cases of plagiarism. There was the recent case of the New Brunswick newspaper Publisher who stepped down after incorrectly publishing a story about the Prime Minister not accepting a host in a Catholic Church; initially, he trusted his source, too. Stevie Cameron famously got caught misleading everyone about being a source for the RCMP herself; an unusual role reversal.

The Financial Post suffered a terrible black eye when it had to apologize for defamation when Theresa Tedesco relied on a single source for a negative story about an Ontario Securities Commission witness scheduled to testify at an upcoming hearing; the source for her story? The defence attorney trying to undermine the OSC’s witness in an effort to save his client.

Over at the Globe and Mail, they were recently defending themselves against a powerful libel suit from Montreal’s Saputo family when it was discovered that the media’s source completely made up his version of events about the family’s U.S. and Italian mafia links. There was no truth to the original claim, and the media didn’t work to get sufficient evidence to warrant running the story. But it ran, nevertheless. Thus is the competitive world we live in today.

It was only because the media’s source was probed in Italy that his original ruse was uncovered.

That’s the thing. If you can’t probe it, how can you ever determine if the source actually knew what he/she was talking about, and that they weren’t motivated by malice against the target of the story?

Year in, year out, the international newsgathering system reminds us how falliable it is. Why then, would we ever pretend otherwise?

If the source(s) won’t stand behind their claims down the road, then the story shouldn’t run in the first place.

MRM