Gawker and the Toronto Star both say they've seen a video in which Rob Ford appears to be smoking crack cocaine. Can he sue them for publishing about it?
Given that Gawker has claimed that they have seen a video of Rob Ford smoking crack, and further that Toronto Star reporters have confirmed they saw what seems to be the video weeks ago, and their descriptions of it corroborate Gawker’s story, this is as good a time as any to discuss libel in Canada versus libel in the United States, because major American media and Canadian media organizations have just alleged that Rob Ford potentially smokes crack. (And let us be clear: Torontoist is not alleging this.)
Canada is a very friendly jurisdiction to libel plaintiffs. Defamation (which encompasses both libel, i.e. defamation with a permanent record, and slander, which is usually spoken-word defamation) is a strict liability tort, which means that all the plaintiff has to prove is that the defaming comment was made, and the defamer is then liable for the tort.
The defaming party, however, then has defenses against the tort. The most common defence against a defamation claim is that the statement is true: if you can prove the “defaming” statement is the truth, that is an absolute and total defence against a defamation claim.
The other important defence against defamation, in this journalistic context, is the “responsible communication on matters of public interest” defence. This defence was outlined by the Supreme Court in Grant v. Torstar Corp in 2009; essentially, it allows journalists (and other individuals who disseminate information, such as bloggers) to publish potentially defamatory information, even if it is untrue, on the basis that it is in the public interest for media outlets to be able to report the news, and sometimes that means getting something wrong in order to report the news in a timely fashion.
However, in order for this defence to apply, the party making the defamatory statement has to prove two things: first, that the matter about which the statement was made was one of public interest, and second, that the statement-maker acted responsibly and diligently to check the reliability of their sources and attempted to get the other side of the story.
So, how does this apply to the current situation? The answer for Gawker is “not at all, really” because they aren’t Canadian. They’re American, and defamation judgements made against Americans in foreign jurisdictions are not collectible in the United States. Rob Ford would have to bring his case against Gawker in American court, where in order to prove defamation you typically have to prove that the defaming party acted “maliciously”—for instance, that they knew it was false or recklessly disregarded whether it might be false. It is much harder to win a defamation lawsuit in the United States than in Canada.
(Some commenters on Twitter have suggested that Gawker published the story expressly because they wanted to entice Rob Ford into suing them, which would allow them to subpoena the video and therefore produce the video in the process. This is not technically incorrect, but that strategy would rely on (a) Ford electing to sue Gawker in the first place and (b) the tape-holder or any tape purchasers not destroying all copies of the video.)
Within Canada, Toronto Star also report that they have seen the tape, and their account corroborates Gawker’s description of it for the most part. (The Star’s description is in fact far more detailed.) Would Ford win if he sued the Star for libel over their story? Well, let’s go back to the responsible communication defence outlined above. Clearly, whether the mayor of Toronto is indulging in illegal drugs falls within the purview of “the public interest,” particularly after a wave of drug-related gang crime over the past year. And one would expect the Star to take reasonable steps to check the veracity of the video, as well as reach out to Rob Ford himself for comment. They did both: their story explicitly states that they sought comment from the mayor’s office, that they refused to pay for the tape (as the video-owners requested), that two reporters took notes on the tape independently of one another, that they saw this tape on May 3 (the inference being that they were making efforts to get more information and Gawker forced their hand by publishing first), and they give as much detail as possible about their sources and about the video itself (not just its content but how they viewed it, how it appeared, et cetera).
Of course, I write as someone who has not seen the tape himself. But on balance, even if the tape is a fabrication, a successful libel lawsuit seems unlikely at this point, because the tape exists, and it is responsible journalism to report on that fact.