The Wild West of Journalistic (and Blogistic) Ethics

In previous posts ( here and here ), I wrote about the recent decision of Grant v. Torstar Corp., 2009 SCC 61 [2009] 3 S.C.R. 640, (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 (“Quan”), where the Supreme Court of Canada incorporated the “Defence of Responsible Communication on Matters of Public Interest” (also referred to as the “responsible journalism” defence ) into the law of defamation in Canada. The “responsible journalism” defence was held to apply to both traditional news journalists and non-journalist bloggers alike:
“[T]he traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree …that the new defence is “available to anyone who publishes material of public interest in any medium”…

[97] A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.” [emphasis added]

Reading the Grant and Quan judgments begs the question to what “established journalistic standards” the Court refers when creating the new “responsible journalism” defence. Admittedly, this is an important starting point in providing guidance to non-journalist bloggers who need to avoid legal liability for publishing defamatory statements online, or, intermediary liability for hyperlinking to a story or comment that is otherwise defamatory: (see my post: Supreme Court of Canada grants leave in internet hyperlink defamation case: Crookes v. Newton).

So, with aplomb I read the Court’s decision in R. v. National Post 2010 SCC 16 on the scope of journalist-source confidentiality and journalistic privilege. The legal issues are significant and I commend readers to Cris Best’s analysis over at thecourt.ca: R v. National Post: Journalist-Source Confidentiality on a Case-by-Case Basis). My focus  here is on the Court’s analysis on journalistic standards.

Much to my chagrin, the R. v. National Post decision left me scratching my head. Apparently, Justice Binnie’s view is that there are no established professional journalistic standards:

“…[there are an] immense variety and degrees of professionalism (or the lack of it) of persons who now “gather” and “publish” news said to be based on secret sources. In contrast to the legal profession there is no formal accreditation process to “licence” the practice of journalism, and no professional organization (such as a law society) to regulate its members and attempt to maintain professional standards. Nor, given the scope of activity contemplated as journalism in Grant v. Torstar, could such an organization be readily envisaged.” (at para. 43).

Citing Grant v. Torstar Corp., Binnie, J. basically lumps “traditional media” together with “everyone” (in the words of s. 2(b) of the Charter) who chooses to exercise his or her freedom of expression on matters of public interest whether by blogging, tweeting, standing on a street corner and shouting the “news” at passing pedestrians or publishing in a national newspaper.” (at para. 40)

Is “licensing” really the issue? Most mainstream journalists, or even freelance journalists, write for well-established media outlets, newspapers, websites or blogs that are recognized as credible news gathering sources. A Google search for “journalistic standards Canada” yields 2,230,000 results. Here are the top five:

The Canadian Association of Journalists (CAJ)- Statement of principles and ethics guidelines – Investigative journalism

Government of Canada- Workshop on Investigative Journalism and Ethical Standards

CBC/Radio-Canada Journalistic Standards and Practices

Communications, Energy, and Paperworkers Union of Canada (CEP) Code of Ethics

Perhaps it’s high time for bloggers to unite and draft a “Universal Declaration of Blogging Ethics and Standards” and post them conspicuously on their blogs and websites. Better yet, let’s hope the Court clarifies the role of non-journalist bloggers in the context of emergent new media platforms and anachronistic libel laws.

2 Responses to “The Wild West of Journalistic (and Blogistic) Ethics”

  1. Elizabeth Miles Says:

    Do you have a proposed set of such standards, or a favoured starting point drawn from the journalistic standards you mentioned?Would the standards be different for those blogging within a professional/business/association context rather than as private individuals?

  2. The Trial Warrior Says:

    Great question, Elizabeth. In my view, the CAJ standards (see link) provide a good framework for a Blogistic Code of Conduct. The blogging standards should be different when blogging in the investigative/public interest context , as opposed to personal blogging. However, as I suggested in my previous blawg post "Are We Curators or Duck Hunters: The Emerging Role of Blawgers as Legal Journalists", the line remains blurred.P.S. Thank you for the wonderful catalogue containing the Elizabeth I sword photo. I shall read the biography with great interest and have mailed a letter thanking you in more traditional format.Antonin

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