Caught in libel chill

At the weekend I was startled to see a name I recognized in the newspaper. A woman I met a few months ago on a train to Ottawa, and whose business card I had tucked away on my desk, was one of the main characters in an article called “CBC on Trial.” The big feature in the Globe and Mail was on how the broadcaster had been sued for a 1996 investigative report by the fifth estate about drug approvals and the alleged influence of big pharmaceutical companies.

I was shocked because I’d been keeping the woman’s card with the vague thought that one day I might tell her story. As we sped along the rails beside the shores of Lake Ontario we had fallen into conversation and I heard some incredible information about what went on behind the scenes in the medical establishment. Here was my big scoop. I’d found a mole and had a chance to fulfil the journalist’s dream to expose some deep-seated corruption and set things right. Bob Woodward and Carl Bernstein look out!

Evidently, however, my train companion had already inspired another journalist — the one who had used her as his source for the fifth estate. Now CBC has to pay close to $3 million in damages — reportedly the biggest libel suit in Canadian history — to two doctors who felt their views had been misrepresented in the show. They argued successfully before the trial and appeal courts that their comments had been taken out of context and skewed, and that the journalists had been so hell-bent on creating a sensational story they had acted towards the doctors with malice.

Now this magazine can’t compete with the fifth estate in attempts to do investigative journalism, but the case above does echo some of the dilemmas I face as CCE editor. Of course, all editors, broadcasters and journalists have a duty to represent the facts fairly, and certainly we should allow both sides to tell their story. Evidently, the CBC program did not do that.

However, sometimes the dreaded spectre of litigation hovers before we get out of the blocks. The result only too often — and perhaps increasingly so after this case — is libel chill. Journalists will shy away from investigating controversial subjects because they fear being sued. At best that kind of trend will produce bland journalism. At worst it will result in the stifling of truth.

I’ve already experienced a type of libel chill. In one instance the manufacturer of a fire protection product got wind that the magazine planned to run an article that favoured the environmental benefits of a rival product. The manufacturer immediately started bombarding me with contrary scientific evidence that their product was superior. The original article was by an independent expert who stood by his conclusions based on his own scientific evidence, but after weeks of wrangling, and with signs that this multi-national company was serious about pitting its heavyweight resources against any press that could damage sales of its product, we decided the stakes were too high. We ended up pulling the article, and as far as the debate on this product is concerned, you the readers were left in the dark.

Consulting engineers are no strangers to the threat of litigation. Indeed, as David Waterhouse points out in Engineers & the Law (page 57), almost every consultant will be subjected to at least one suit of negligence in their careers, and you certainly don’t have to be a poor engineer to be caught up in the legal merry-go-round that increasingly characterizes our world.