Journalists and the Law: how to get the story without getting sued or put in jail

Dean Tudor is a journalism professor at the Ryerson Polytechnical
Institute and founding editor of the CBRA.

With the publication of Levy’s book, this series is now complete. The series derives from the “Law and the Media” project, sponsored by the Canadian Bar Association through its foundation subsection. The lawyers had a series of workshops for journalists held across the country from October 1983 to November 1984. The publication of these five books written especially for journalists was based, in part, on these workshops. Now that the series and the workshops are completed, CBRA can give the series a proper review.

Co-author Stuart M. Robertson has also served as the series editor. To him must go the kudos and the brickbats, and there are a few of each here. For instance, only one of the books has an index (and that is only of names). There are no bibliographies for further readings, except in Levy’s book; but there are case citations and footnotes that could be followed through by the persistent reader. And the books could be tightened up a little. The package price of $38.00 is all right for a uniform set; in fact, it is a bargain, since there is a lot of detail here. But some of the books are small, and there is some duplication that is unavoidable. Perhaps three books might have been better: one on how the system is supposed to work (civil and criminal procedures), another on defamation, and a third on access to information/privacy acts and the Charter of Rights and Freedoms.

Overall, the good news about each book is that almost every legal point is linked to a recent newsmaking example, a useful approach for the working journalist or for the journalist-in-training. The bad news about each book is that there are many, many amateurish typographical errors, proofreading errors, copyediting errors, and stylistic errors. It is as if the lawyers spoke into a dictaphone or tape recorder, and the tapes were transcribed without checking. For example, in Levy’s book (page 127)he says, “Canada is one of the only common law jurisdictions which … ” Should this be “one of the few” or “the only”? This is important because the text deals with Crown appeals of jury verdicts of those acquitted. On page 47 Levy writes, “Some raids are discrete [sic] and relatively unobtrusive.” Good solid reporting here. Some of the footnotes are awry: pages and dates are missing. And there are quotations that lead nowhere (that is, open quotation marks with no ending). Many other minor items crop up throughout the series, such as turgid writing (what do these lawyers mean, in plain English?) or overlooking that necessary explanation of a background detail (e.g., only on page 133 of Levy’s book do we finally learn what a voir dire is).

As to the books themselves, Proudfoot’s Privacy is a good guide to the law that prevents the disclosure of most types of personal information (but there is still much material out there that is legally accessible). Proudfoot, though, does not give much on how to get back at journalists or how to squelch exposure through the mass media. He does have flowcharts that are useful for checking the progress of requests made under the various information/privacy acts in Canada. Richard and Robertson’s book on the Charter is a bit iffy. Some of it is historical and philosophical, while much of it is speculative. Half of the book is a reprint of the complete Charter of Rights and Freedoms, the older Canadian Bill of Rights, and three declarations of human rights (International, 1976; United Nations, 1948; and European, 1952). It is also one of the earlier books in the series, developed before sections of the Charter even came into force. Thus, it tends to be out-of-date and speculative. Not much of it is “today and now.”

Levy’s book is the biggest and newest of the lot, and it is also the most useful since it does describe the system and how it is supposed to work — but mainly the criminal system (the civil procedures are apparently based on the criminal). The book tells how to deal with court clerks, judges, attorneys, and lawyers; it covers bails, trials, motions, juries, sentencing, appeals, precedents, and the reporting of cases. It has the widest appeal of the five.

The best two books for journalists are Defamation Law and Journalists and the Law. Flaherty’s book is the most practical, but mainly from a publisher’s or editor’s point of view, since they are the ones who deal with libel on a day-to-day basis. It opens with a historical background, covers the role of the courts and of lawyers, and presents typical defamation claims and defences and damages. Many suits stop at the “examination for discovery” stage, and some of the documents tabled here can be useful in future tracking for information.

The Bruser and Rogers book begins with interviews and documents, then moves on to coverage of meetings and court proceedings. It covers much of the same territory as does Levy’s book and Flaherty’s book on defamation. But it also covers writing crime stories, editing errors that can lead to suits, and problems that develop after publication (such as protection of sources). While there is an extended table of contents covering many pages, it would still have been useful to have an index for the alphabetical sequence of the topics. Nevertheless, this is a highly useful book, and it is very much recommended (I made it compulsory reading for my students!).