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Can Rob Ford Respond to Crack Allegations By Suing Media Outlets for Libel?

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.

Comments

  • Rico_Featherbutt

    What else is new with this lunatic? De-amalgamation will happen if this crap continues. 905′s interest in turning Toronto into their highway and parking lot will only go so far. This moron that was voted in, is a complete imbecile.

    • OgtheDim

      Point of order.

      The inner suburbs are NOT the 905. Please do not assume that he is representative of the rest of us within the 416 but not within the boundaries of the old city of Toronto.

      • Rico_Featherbutt

        I’m commenting on the voter map when this guy was chosen. 416 can take care of itself.

        • OgtheDim

          Oh you mean that map put out that uses a winner take all/ first past the post approach to say x or y?

          Misleading.

          BTW, 905′ers do not vote for the mayor of Toronto.

          • Rico_Featherbutt

            You mean the one that decides who is Mayor? Go re-read those articles. We have this goof as mayor because suburban sterile lemmings stomp their feet when they don’t get what downtown wants, then demand downtown react to their needs because their commute time is getting slower.

          • OgtheDim

            AGAIN with the stereotype insults. As bad as the “ur a commie pinko” stuff this.

            But, hey, lets try this again.

            First past the post maps do NOT tell the full story of who votes.

            Up to 25% of some polls in the core voted for Ford.

            Up to 65% of some polls in the inner suburbs voted for somebody other then Ford.

            And, still wondering why you think the 905 votes for the mayor of Toronto.

          • Rico_Featherbutt

            LOL so the maps are completely made up, and YOU have the stats. Riiiight. Up to 25%…so that means >75% of the core DIDN’T VOTE FOR THIS BOOB?

            Have a look at your own “stats” and look at the revealing map, yet again. You will see a big round part, with the bottom part of the ring (kind of like 75% of a hole) demonstrating something: People outside of downtown voted for this guy because they’re a bunch of whiners.

          • vampchick21

            Because he’s operating on the assumption that Etobicoke, Scarborough and North York used to use the 905 area code, which they did not. Also, geography is hard.

          • Rico_Featherbutt

            Hey little girl, I have studied much more complex things than “geography”. I’m twice your age probably as well. Like I said before, you MISSED IT. Now go away. It’s a school night.

          • vampchick21

            Try not being such an utter fucking douchebag.

          • Rico_Featherbutt

            Try to act half your age. Now go away. I’m sure there’s a bridge near you somewhere.

          • jase

            The suburbs do not vote for the mayor of Toronto. Miss. is in Peel the only people that vote in a Toronto election Is Toronto, Scarb, North York etc. Markham and the like have their own Mayors.

        • BJO

          416 sure took care of itself when they elected the lying overspending Liberals. A selfish and greedy bunch of scumbags.

          • Rico_Featherbutt

            Greedy to represent the City? LOL then every commuter into the City is just as greedy. I suggest they all stay at home, or use the subway system the Real Toronto paid for. Back well before a 905.

          • vampchick21

            If you’re going to make an arguement blaming all this on the suburbs, please get the suburbs correct. 905 does not, as other have pointed out to you, vote in municipal Toronto elections. Former suburbs of Etobicoke, Scarborough and North York do vote in municipal Toronto elections, and none of these ‘inner suburbs’ used the 905 area code, they all were part of the 416 area code, both before and after amalgamation. 905 covers Peel, Halton, Vaughn, Durham and a few smaller communities outside of those, none of which vote in Toronto elections. Geography is hard.

          • Rico_Featherbutt

            Spelling is hard. And you also miss a thing called Sarcasm. Might want to look that one up. You completely missed my point, as did others. I guess advanced humour is over the head of the rural community.

          • vampchick21

            Here’s a tip. Get off your high horse. Or shut up. Either way.

          • Rico_Featherbutt

            Here’s a tip. Grow the fuck up and know who voted for this idiot. You his drug pusher? MY high horse is about paying for you morons coming into MY city. Because not a single one of you takes care of our infrastructure. If or when you actually get a job, “vamp chick”, you might start to realize what the value of a dollar is.

            In the meantime, watch your tv, believe the vampires. You are a fine example of why Toronto is being ruined. Idiot.

    • NOYB12345

      Keep in mind that in Canada we usually have 2 options when we vote, $#it or cr@p. It’s easy to make a bad choice.

      • OrdinaryAverageGuy

        Ford was such a bad, bad, bad, bad, bad choice you would have had to have been on crack not to notice.

        • dsmithhfx

          You could also be “on” the Sun.

      • Rico_Featherbutt

        “Choose your poison”. Very true. Carload of farts.

    • RickJay

      If you don’t even know what area code Toronto is, one wonders about your handle on political affairs.

      • Rico_Featherbutt

        Go have another look. Obviously you don’t spend much time downtown with real Torontonians. 905 is indeed a label, and probably applies to you.

        • bjo

          What is a real Torontonian?? They are in a minority now.

          • Rico_Featherbutt

            You got that right. Even in 416, we are quite rare. But at least the reversal of Amalgamation should fix a lot of that. Downtown doesn’t travel to the mall to eat blue popcorn.

  • Keane

    The longer I look at the photo of Ford at the top of this article, the redder his face seems to get.

    • Lloyd_Davis

      And unlike one of those paintings where the eyes follow you, in this case they seem to retreat deeper and deeper into his face.

  • http://www.facebook.com/michael.provost.397 Michael Provost

    Of course he can sue them for libel. He can, and you can bet that for THIS he will. The Star had better be 100% sure about this story or the damages they’ll have to pay from the lawsuit will shut them down for good.

    • Just Say No

      and if it turns out that the “pathological liars” were telling the truth again?

    • dsmithhfx

      But he won’t.

    • Filthy Liar

      Because when someone speaks truth to power the best thing to do is make sure they can never do it again?

    • FinStockton

      Michael, how do you know for certain that the man in the video – who looks like him – isn’t him?

      This fits with his pattern of behaviour. He has a record of erratic behaviour with event staff around town.

    • stacy

      you fool. you sad fool

    • http://twitter.com/neilshyminsky Neil Shyminsky

      Except that if TorStar won the suit – and, based on the information we have, it seems very likely – they’d be likely to win court costs from Rob Ford. So Ford would only be costing himself $$$.

      • majk

        money he could be spending on crack

        • HotDang

          Supposedly crack is pretty cheap.

          • DGM

            More crack! Better prices! Value for the taxpayer! Bang for the buck! Subways! Subways! Subways! Crack! Et Cetera!

    • selonmoi

      The “reality” you inhabit must be truly fascinating.

    • Torontopoly

      It would be great if he sued, the the star would be able to obtain the video for free as it would be subpoenaed for the trial ;)

    • http://twitter.com/josherool josher

      Except he wont, if he was smoking and sues then he will be counter sued. The truth will be revealed, in time.

    • EDMUNDOCONNOR

      Which one of these scenarios is more likely: The video’s owners are part of a massive, well-organized conspiracy of left-wingers and other Ford opponents who have the time, skills, and money to put together such a video. In which case, if it’s so massive and well-organized, why couldn’t it just defeat him in 2010?

      Or:

      Some hustlers got the chance of a lifetime to make big money because some idiotic politician decided that reality wasn’t doing enough for him.

      Occam’s Razor. That’s all I’m saying.

    • Rico_Featherbutt

      Michael, he’s not in a legal position to do so. Slander doesn’t cover this situation at all. Second, if he’s guilty, he should be put in jail longer. How are you related to this boob? You guys go the same Etobicoke mall on the weekend?

  • QClawyer

    Forget the fair comment defence, the Torstar article is very carefully worded to be safely under the truth defence. Two separate reporters watched a video, in that video Rob Ford smokes something that appears to be crack. Absolute defence. Interestingly, truth is NOT an absolute defence in Quebec where true statements — if made “fautivement” (i.e. in a manner that would constitute a civil fault) — can still be grounds for a finding of damages against the party uttering the “defamatory” statement.

  • Filthy Liar

    This is amazing. I am so glad to live in the future I read about when I was a kid. The only way this gets better is if it’s revealed that every person who voted for him supports him regardless. That said, I do hope he gets the help he needs. Crack is a seriously not healthy drug.

    • OrdinaryAverageGuy

      The crack thing explains a lot. He needs to get out of the public eye and get help. What we’ve been watching is the breakdown of a human being played out in the mayor’s office. It’s sad. Get help Mr. Ford.

  • http://www.facebook.com/profile.php?id=28132417 Matt Patterson

    I’m sure the Toronto Star had a team of lawyers all over this article before they published it.

    • dsmithhfx

      Allegedly they were sitting on it until gawker forced their hand.

    • EDMUNDOCONNOR

      The article does seem to suggest that The Star was sitting on the story and making their own enquiries regarding the veracity of the video. The Gawker story essentially forced them to run this before they were ready, in order to prevent them from being scooped on a potentially big story.

      • dsmithhfx

        They were scooped. That didn’t stop them from claiming an “exclusive”.

  • NOYB12345

    Lance Armstrong used the law to protect his lies all those years.

  • Lord Vader

    SPOILER ALERT: Rob Ford’s next 30 days will parallel season 6 plotline of BREAKING BAD: suburban middle class white male spirals into drugworld and ends up doing things he never dreamed he would. LIke coming clean.

    • Torontopoly

      It’s kind of like the wire as well – Sheeeeeeeeeeeeeeeeeiiiit

  • ugh

    divide toronto already. the suburbs aren’t doing the city any good. they elect lunatics.

    • OgtheDIm

      Polls in the downtown had Ford support between 5% and 28%.

      Please do not assume that the inner suburbs are unanimously for him and that the downtown is unanimously against.

      That inability to understand the concerns of the inner suburbs is the sort of thinking that got us Rob Ford. Its why the large pockets of poverty in the inner suburbs supported Rob.

      We are all in this together, and the sooner we stop this us vs. them shite, and start actually listening, the better.

      • HotDang

        David Miller made attempts to solve some of the poverty related issues in the inner suburbs.

        • dsmithhfx

          Too bad about the TCHC…

        • OgtheDim

          Yes, and I had a City Hall Scooby like seat for much of that. It was hamfisted and focused on creating things rather then listening to actual issues. I give the man props personally for listening. But, there was a lot of “what of these options do you prefer?”.

      • Rico_Featherbutt

        LOL all in this together, as long as Toronto covers the cost in many ways. I can’t wait for this love-in to end. Then the real money starts to flow. And the true whining of the burbs start.

  • ExpatTO’er

    He looks like he’s had a lot of experience with tortes. Moreover, if he were a regular crack user he wouldn’t be so fat.

    • Basel

      Two words: Chris Farley (RIP)

  • diogenes

    the most interesting comment by his lawyer was that ‘you can’t tell what’s in that pipe’. Interesting that he didn’t DENY any of it… odd. Almost as if he knows that it is plausible.

    • Rico_Featherbutt

      “You can’t always tell what’s in that needle”

  • http://twitter.com/THINK_Lyndon Think_Lyndon

    Of course, there’s also the issue of whether the claims are false. If the accusations being made about Rob Ford are false, then, presumably he would be likely to win a defamation case [if he is in the video, but not doing what he is accused of].

    • dsmithhfx

      The Star has been pretty cagey about saying ‘what appears to be crack’ [etc], and that the video has not been verified. There’s other stuff that tends to corroborate the allegation though.

    • http://twitter.com/Sean_C2 Sean Curley

      No, that’s incorrect. As the article goes to some length to point out, you can publish false allegations in Canada and be fine, so long as you were diligent in trying to ascertain whether the allegations were true.

    • Rico_Featherbutt

      Not if it’s in light of public representation. Slander laws in Ontario are well defined.

  • Daisee

    He hasn’t even denied it, he just said it was ridiculous, not the same thing. And let’s stop pretending high-brow classism doesn’t exist amongst the progressives in TO. Regarding the msm saying how can you trust drug dealers, well with all the lying/cheating going on by politicians and senators I’m actually more inclined to believe the drug dealers.

  • http://www.facebook.com/profile.php?id=48904447 Chris Orbz

    It’s so cute how you keep calling the digital video a tape!

  • haselcheck

    Toronto should have elected George Smitherman….If they caught him in a bath house packing fudge and doing coke….it would be OK.

    • dsmithhfx

      You know what though? George Smitherman wasn’t elected. He’s a private citizen. No one cares what he does in his private life.

      You should care that Rob Ford, who was elected mayor of a city of 2.5-million people and a $10-billion annual budget, not to mention being a high school football coach, is alleged to be hanging out with crack dealers and smoking their product. And apparently there may be video evidence showing him doing just that. You should care about that, not George Smitherman.

      • haselcheck

        It’s a media scandal…that’s all…there will not be any video…it’s a HOAX…

        • dsmithhfx

          You do realize that one of the Toronto Star reporters (Kevin Donovan) who watched the video and identified Rob Ford in it broke the ORNGE scandal? “I want to tackle the issue of “unproven” allegations. Personally, having done this type of reporting for most of my 29 years at the Star, I have a pretty good track record. When I started investigating ORNGE, the people at ORNGE said I was wrong. They told me I was wrong for more than a year. Then people stepped in and it is clear I was right.”
          http://livenews.thestar.com/Event/Rob_Ford_crack_scandal_Live_chat_with_Kevin_Donovan

  • haselcheck

    It would be even funnier if the video was created to entrap the Toronto media….

  • WarrenPerley

    Torontoist contributor Christopher Bird has oversimplified the 2009 Supreme Court of Canada judgment (Grant v Torstar Corp) pertaining to the media and what constitutes responsible communication on matters of public interest.

    In my view, the Toronto Star comes up short on several counts in its handling of the Rob Ford cocaine controversy, regardless of whether the video ultimately turn out to be authentic or a forgery.

    There are seven factors cited in the 2009 Supreme Court judgment to be considered in determining whether a defamatory communication on a matter
    of public interest has been responsibly made:

    One of those factors is the urgency of the matter. The Supreme Court wrote: “The question is whether the public’s need to know required the defendant to publish when it did” or whether “…a reasonable delay could have assisted the defendant in finding out the truth and correcting any defamatory falsity….”

    By their own admission, the Toronto Star reporters viewed the video on May 3, 2013, but their story was published only on May 16, 2013 after they learned that U.S.-based media outlet Gawker was publishing on this matter that very same day. So it is apparent that the Star’s timing in publication was based on a consideration of competitive advantage versus Gawker; not on the public’s need to know on May 16.

    Another factor cited by the Supreme Court in determining whether a defamatory communication can be considered “responsible” is the status and reliability of the source of the story. “The less trustworthy the source, the greater the need to
    use other sources to verify the allegations,” the court wrote. A judge and jury
    would not likely consider the drug pushers cited in the Toronto Star story to
    be “trustworthy”.

    Interestingly, one of the factors cited by the Supreme Court as to what constitutes responsible communication on a potentially libelous matter would have given the Toronto Star the perfect legal cover to report on the issue: The Star could simply have reported what Gawker published, namely that “he [Ford] smokes crack cocaine.”

    The Supreme Court wrote that a published report concerning a
    matter of public interest, whether it later turns out to be true or not, can be
    repeated by other media outlets if done in a fair manner and attributed to the
    original party reporting the matter. Those outlets repeating the story must
    make clear that the truth of the allegations has not yet been determined; they
    must set out both sides of the dispute, and they must give the context in which
    the original report came out.

    In other words, the fact that another media outlet, such as Gawker, is reporting a potentially libelous statement then becomes the basis for other media outlets to report what Gawker is saying without exposing themselves to being part of a potential libel.

    The Star could have reported what Gawker said and then gone on to say that two of its own reporters had viewed the video earlier and that although it appeared to show Ford holding a glass crack pipe to his mouth, the Star was unable to verify the authenticity of the video and, therefore, did not publish until it became public through Gawker.

    Such an approach would have obviated the need for the Star reporters to twist themselves into a pretzel by writing in the first paragraph of their May 16t story that the video “appears to show Mayor Rob Ford smoking crack cocaine.” By the eighth paragraph, they had dropped the qualifier “appears”, describing
    the person in the video as Ford. And one of the reporters, Robyn Doolittle, clearly said during an interview on CBC’s The National on May 17 that it was Rob Ford in the video she viewed.

    One last fact which could come out at some point is whether the Toronto Star was the Canadian media outlet which one of the drug pushers told Gawker had offered to pay $40,000 for the video, but had been turned down because $100,000 was being sought at the time.

    If it turns out that the Star missed an opportunity to buy the video over price [$40,000 offered, compared with $100,000 asked] rather than principle [some media outlets feel paying news sources is an ethical compromise], it will be one more example of how the Star declined to take the step needed to obtain the video and prove, once and for all, whether it is the real deal or a forgery.

    Knowing whether the video is authentic would make moot all discussion of defamation. For $100,000, the Toronto Star could have had the story to itself and proved to its readers whether their mayor partook of cocaine on this occasion or whether he was the victim of drug-dealing hoaxers.

  • haselcheck

    “I don’t care what your political stripes are; raising money to reward known drug dealers for what amounts to blackmail is just plain wrong. Next time the people of Toronto complain about innocent victims in another drug-related shooting, there are 3000 people who contributed to this campaign that can share in the responsibility. The people in Toronto already have a tool to seek retribution against Rob Ford; they can just not vote for him in the next election”

    • hgushee

      If paying $100K-$200K for a video from alleged drug dealers is wrong, then paying a $172K annual salary to an alleged drug user is wrong. Same alleged, same wrong.

  • higuy

    people should stop trying to sue the interwebz.lollz

  • haselcheck

    Were the Liberals on Crack when they dreamed up the Gas Plant relocation disaster ???

    • vampchick21

      Yeah, cause the two issues are totally tied in together.

  • Concerned

    Just for the record, it is not a ‘tape’, it’s a digital video. :-)

  • soso

    The timing of this video scandal is funny, it appeared right after OLG director that promised to Ford 100M for downtown casino was fired, and Ford pronounced the casino deal dead. Something fishy goes on here…