Bonus Analysis & Discussion: Jian Ghomeshi

Media Law Class 9 Oct. 28, 2014 UBC Graduate School of Journalism Jon Festinger, Q.C. Centre for Digital Media Festinger Law & Strategy http://videogame.law.ubc.ca @gamebizlaw jon_festinger@thecdm.ca *Based on materials originally prepared by Dan Burnet, Q.C.

http://www.thestar.com/news/canada/2014/10/27/jian_ghomeshi_lawsuit_says_cbc_made_moral_judgment_about_his_sex_life.html

http://www.scribd.com/doc/244688067/Jian-Ghomeshi-lawsuit-against-CBC

Ethics More Important Than Law

Also…

http://www.theglobeandmail.com/globe-debate/the-ghomeshi-question-the-law-and-consent/article21315629/

Threshold Question: What does the contract say? * Union role * Morals Clause

Defamation Cases? 1. Versus ex(es) 2. Versus Torstar 3. Versus CBC

Remind you of: Furlong v. Robinson; Robinson v. Furlong

Basics of Defamation (pre-defences) •  Three Elements: 1. Negative

Statement; 2. Identity; and 3. Publication

•  Purpose is protection of reputation •  Presumption of falsehood (Journalist

move prove truth) •  Presumption of damages

Element 1: Defamatory Meaning •  Defamatory meaning is one which is “to

the plaintiff's discredit” •  Almost anything negative •  Courts look for what a reasonable and

fair person would understand from the words and their natural impressions.

•  Reasonable people do read between the lines but they don’t strain for the worst meaning.

•  But…who is “the man on the Clapham omnibus” today?

THE DEFENCES

•  1. Truth •  2. Fair Comment •  3. Responsible Communication •  4. Privilege •  5. Qualified Privilege •  6. Consent

Responsible Communication •  Canadian Courts have added a defence

called “responsible communication” •  Requires (1) the story must be of public

interest ; and that… •  (2) the story was handled “responsibly”

according to several factors – e.g. putting the allegations to the person affected

•  Focus is on journalistic practises

THE DEFENCES •  1. Truth •  2. Fair Comment •  3. Responsible Communication •  4. Privilege •  5. Qualified Privilege •  6. Consent

Something to think about… Can “Non consensual” be a fair comment or is it necessarily a statement of fact???

Vander Zalm v Times Publishers (1980) 109 DLR (3d) 531 (BCCA)

Cartoonist testified he believed Vander Zalm was a cruel man based upon insensitive public statements he had made. Fair Comment succeeded.

Hunter and Swift v. Fotheringham et al (1986) 360 (B.C.S.C). “Fotheringham wrote that Swift and Hunter, who he said were rising in the pecking order of Vancouver law firms, had been "cementing their connections through the lawn–tennis circuits and wife–swapping brigades.” Fotheringham later apologized for the remarks and said during the trial that the column was humorous and was not intended to defame Swift and Hunter. Peter Butler, lawyer for Swift and Hunter, argued during the trial that the column was defamatory because it suggested his clients were wife-swappers or associated with wife-swappers.”

PRIVACY ACTION v. Torstar?

Mosely wins privacy suit over tabloid video sting

“High Court judge David Eady ruled the News of the World must pay Mosley 60,000 pounds ($120,000) in damages plus legal costs for the story claiming Mosley participated in a sadomasochistic sex romp with a Third Reich theme… Mosley, 68, admits the encounter with sex workers, but says it was private and there were no Nazi overtones… During the hearing, the court was played covertly recorded videos that showed Mosley being bound and whipped, then relaxing naked with a cup of tea. Some of the participants wore striped prison-style uniforms and one dominatrix wore a German Luftwaffe jacket. High Court judge”

http://www.nydailynews.com/entertainment/gossip/motorsport-boss-max-mosley-wins-lawsuit-tabloid-orgy-story-article-1.347722

Wrongful Dismissal v. CBC

(PERSONAL) HISTORY:

http://caselaw.canada.globe24h.com/0/0/british-columbia/supreme-court-of-british-columbia/1990/05/25/davidson-v-westcom-radio-group-ltd-1990-519-bc-sc.shtml

Some Troubling Things 1

Some Troubling Things 2

http://www.tmz.com/2014/09/08/ray-rice-elevator-knockout-fiancee-takes-crushing-punch-video/

Some Troubling Things 3

Some Troubling Things 4

http://www.vox.com/xpress/2014/10/27/7070983/why-gamergate-isnt-about-the-ethics-of-journalism-in-35188-tweets

Consider Two Quotes From R v. Butler (SCC 1992) re Obscenity “To impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, is inimical to the exercise and enjoyment of individual freedoms, which form the basis of our social contract.” “[T]he portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex…Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.”

ALL A MATTER OF PERSPECTIVE (& TIME)

Thanks for Listening

Always include a cat picture