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OPC Decision Donely vs Star Oct., 2013

OPC Decision Donely vs Star Oct., 2013

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Published by Steve Ladurantaye
OPC Decision Donely vs Star Oct., 2013
OPC Decision Donely vs Star Oct., 2013

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Published by: Steve Ladurantaye on Oct 16, 2013
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Ontario Press Council Decision
 –
October 16, 2013Matter Regarding: Complaint from Ms. Darylle Donley regarding an article published by The Toronto Star, dated May 17, 2013 entitled
Rob
Ford in ‘crack cocaine’ video scandal 
 
1
Matter Regarding
: Complaint from Ms. Darylle Donley regarding an article published by the Toronto Star, datedMay 17, 2013 entitled
Rob Ford in ‘crack cocaine’ video scandal 
  ___________________________________________________________________
 
Background:
 
The Ontario Press Council (‘Council’) received a number of complaints about the Toronto Star article from
individuals across the country. While it focused on one representative complaint, that of Ms. Donley, it also tooksteps to ensure that all of the concerns raised by the complainants were covered in the hearing. This was done bysetting out the issues in advance for the complainant and the newspaper, and by using the opportunity to askquestions in the hearing.Council invited Mr. Ford, the main subject of the article, to participate in the hearing, which is available at no costto complainants. This was to ensure he was aware of the opportunity to be heard. As well, Council recognized thatnone of the complainants was in a position to cont
est or comment upon the accuracy of the newspaper’s account
of their pre-publication attempts to alert Mr. Ford, or to seek his response to the allegations about to bepublished, a key issue for the Council. He did not file a complaint and did not attend the hearing.With respect to the complaint brought forward by Ms. Donley, the Press Council decided it was important to hold apublic hearing in this matter for two reasons:First, the complaints raised important, substantive issues about fairness and balance. The Council only recently setout its view of what constitutes responsible investigative journalism
1
in its decision in Marin v the Toronto Star,
*2011+. Ms. Donley’s complaint provided an opportunity to Council to broaden its analysis and to apply st
andardsit has developed in past decisions. In addition, the Supreme Court of Canada, in Grant v Torstar Corp [2009] SCC61, set out important new guidelines to be considered when determining whether allegations contained in anewspaper article can be justified as responsible communication on a matter of public interest
2
. In the opinion of the Council, this made it important that there be a public discussion of the issues in this case.Second, and equally important, was that the language of the compla
ints and the language of the newspaper’s
response raised the possibility of a fundamental disconnect between the two parties on how to assess the content
of the Star’s article. The complainants, including Ms. Donley, emphasized what they saw as a simple la
ck of fairnessin the way the newspaper accused Mayor Ford of illegal drug usage, based on information and evidence obtainedprimarily from anonymous and allegedly criminal sources and without having in its possession the best possibleevidence in the form of the video itself. For them, it was not possible to consider this article on its own and apartfrom what they saw as a continuing, negative and accusatorial approach toward Mr. Ford by this newspaper. Forthe Star, the article demonstrated the value of investigative journalism in bringing forward relevant informationabout the inappropriate behaviour of an important public figure and thereby furthering a debate on a matter of 
1
In the Marin v Toronto Star, the OPC attempted to define i
nvestigative journalism as involving the attempt to determine `…what the journalist
perceives to be the most credible conclusion to be drawn from an extensive exploration of alleged wrongdoing in business, government or
elsewhere….., by definition, an “investigation” is being conducted, and while no explicit finding may be made, the journalist
is justified inassessing the information received and making his or her judgment on its credibility and weight when preparing the series of stories.`
2
In Grant v Torstar, Chief Justice McLachlin set out the following (although not, according to the court, necessarily exhaustive) questions to beasked in considering whether the newspaper acted responsibly: (1) the seriousness of the allegation; (2) the public importance of the matter;(3) the urgency of the matter;(4) the status and reliability of the source; (5) whether the plaintiff's side of the story was sought and accuratelyrecorded; (6) whether the inclusion of the defamatory statement was justifiable; (7) whether the defamatory statement's public interest lay inthe fact that it was made rather than its truth (reportage).
 
Ontario Press Council Decision
 –
October 16, 2013Matter Regarding: Complaint from Ms. Darylle Donley regarding an article published by The Toronto Star, dated May 17, 2013 entitled
Rob
Ford in ‘crack cocaine’ video scandal 
 
2
significant public interest. It was important that this difference in perception be acknowledged and discussed in anopen hearing.
The Council’s review of this and other complaints it has received has led it to conclude that the robust and
extensive journalistic standards that good newspaper reporting should meet are not well known or understood bythe public. Nor is there clear knowledge about internal codes of conduct, such as the comprehensive one that theStar is guided by and has posted on its web site (entitled:
Toronto Star Newsroom Policy and Journalistic StandardsGuide
).This lack of knowledge is contributing to the disconnect between the parties and should be of some concern to thenewspaper. It is certainly of concern to the Press Council, whose very existence grew out of a desire to establishand promote good journalistic practices and then to hold its members responsible for meeting them.
The Hearing and Issue to be Decided:
A public hearing was held September 9, 2013 attended by Ms. Donley and representatives from the Toronto Star:Michael Cooke, Editor-in Chief, and Kevin Donovan, Investigations Editor and co-author of the story on the video.
3
 
In considering Ms. Donley’s complaint, the other complaints and the newspaper’s response, the Ontario Press
Council determined that the broad issue to be addressed in the hearing was
whether the newspaper had engagedin irresponsible, unethical investigative reporting.
To provide both parties with a better sense of what the Councilfelt needed to be addressed in deciding this question, the Council identified three more specific issues:1.
 
Did the article deal with a matter that is in the public interest?2.
 
Were adequate efforts made to verify the allegations before publishing them?3.
 
Was Mr. Ford given adequate notice of the allegations and a reasonable opportunity to respond, and didthe newspaper include that response in its reporting?
Analysis
What is it that makes a piece of investigative reporting irresponsible or unethical? While the Supreme Court inGrant v. Torstar identified a number of questions to be considered when deciding whether a newspaper has actedresponsibly, in Council's view the three that are set out above are the important ones in this particular case. Thebasic requirement is to balance the constitutionally protected right of freedom of expression against the need toprotect the individual's reputation and privacy. If that is fairly done, deciding to publish a communication thatincludes allegations against someone is defensible. Even if the newspaper making the allegations is unable to
prove that they are “true”, it may legally publish them if all three of these requirements
are met. The capacity fordebate on matters of public interest is essential in a democratic society. One result is that we permitcommunication of facts a reasonable person would accept as reliable, even when absolute proof is lacking.
3
 
A copy of Ms. Donley’s complaint and the Toronto Star’s response
as well as copies of the statements submitted at the hearing by the partiescan be found on the Ontario Press Council website
 
Ontario Press Council Decision
 –
October 16, 2013Matter Regarding: Complaint from Ms. Darylle Donley regarding an article published by The Toronto Star, dated May 17, 2013 entitled
Rob
Ford in ‘crack cocaine’ video scandal 
 
3
The Council believes that these questions are also important ones to ask when deciding if a newspaper has beenboth responsible and ethical when it publishes the results of its investigative reporting. They represent the law;more than that, they reflect the principle that the person being written about must be treated fairly.
The Council has expanded on this fairness requirement and makes reference to “commonly accepted ethicalstandards” when assessing whether a newspaper publication is acceptable. For example, it has rul
ed that an article
may not be “unnecessarily hurtful” to the person against whom allegations are made. Answering the questions set
out by the Supreme Court may be determinative. However, it has also been emphasized in past Council decisionsthat the legal standard is not the only one that is applicable. The member newspapers know this is the case. For
example, the Star’s
Newsroom Policy and Journalistic Standards Guide
goes well beyond what the law wouldrequire.Turning now to the three specific questions identified by the Council:
1.
 
Did the article deal with a matter that is in the public interest?
Several of the complainants asserted that, while the issues reported may interest the public, they are not in thepublic interest. Rather they are the personal and private affair of Mr. Ford, and not relevant to his public role asMayor.
The Star’s article was based on a video that appeared to show the Mayor involved in criminal behaviour (allegedly
smoking what appeared to be crack cocaine).The Council believes the matters described in the article are in the public interest for the following reasons:The Mayor is a senior public servant in a very important elected position. In that capacity he is appropriatelysubject to a greater level of scrutiny than if he was a private citizen. It is, therefore, in the public interest for mediato report on his behaviour where that behaviour appears to be illegal and inappropriate, could impair the carryingout of duties, and involves alleged activity he himself has condemned.
2.
 
Were adequate efforts made to verify the allegations before publishing them?
The question here is whether the Toronto Star was sufficiently diligent in its efforts to verify the allegations. The
complainants’ concern was that the story relied on a video that has only been seen by the reporters, has not been
produced, and may either not exist or have been doctored or faked. In addition, the identities of the persons whowere said to have produced and to be in possession of the video were not disclosed and their backgrounds ormotives were suspect.The allegations against Mayor Ford are serious ones and carry the potential for significant injury to his reputationand career and the reputation of the City over which he presides. The Supreme Court has stated that it is
appropriate to consider the status and reliability of the reporters’ sources.
The Video:
 
The main evidence supporting the assertions of the Mayor’s alleged drug use is a video pro
duced byanonymous sources. The video was shown to the authors of the article on May 3, 2013.
The video is the most important piece of evidence supporting the allegations. The newspaper’s efforts to establish
its authenticity, therefore, are critical in assessing whether the conclusions reached by the reporters arereasonable.

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