Ontario Press Council Decision October 16, 2013 Matter 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

Matter 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 ___________________________________________________________________

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 took steps to ensure that all of the concerns raised by the complainants were covered in the hearing. This was done by setting out the issues in advance for the complainant and the newspaper, and by using the opportunity to ask questions in the hearing. Council invited Mr. Ford, the main subject of the article, to participate in the hearing, which is available at no cost to complainants. This was to ensure he was aware of the opportunity to be heard. As well, Council recognized that none of the complainants was in a position to contest or comment upon the accuracy of the newspapers account of their pre-publication attempts to alert Mr. Ford, or to seek his response to the allegations about to be published, 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 a public hearing in this matter for two reasons: First, the complaints raised important, substantive issues about fairness and balance. The Council only recently set 1 out its view of what constitutes responsible investigative journalism in its decision in Marin v the Toronto Star, *2011+. Ms. Donleys complaint provided an opportunity to Council to broaden its analysis and to apply st andards it has developed in past decisions. In addition, the Supreme Court of Canada, in Grant v Torstar Corp [2009] SCC 61, set out important new guidelines to be considered when determining whether allegations contained in a 2 newspaper article can be justified as responsible communication on a matter of public interest . 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 newspapers response raised the possibility of a fundamental disconnect between the two parties on how to assess the content of the Stars article. The complainants, including Ms. Donley, emphasized what they saw as a simple la ck of fairness in the way the newspaper accused Mayor Ford of illegal drug usage, based on information and evidence obtained primarily from anonymous and allegedly criminal sources and without having in its possession the best possible evidence in the form of the video itself. For them, it was not possible to consider this article on its own and apart from what they saw as a continuing, negative and accusatorial approach toward Mr. Ford by this newspaper. For the Star, the article demonstrated the value of investigative journalism in bringing forward relevant information about 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 investigative 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 in assessing 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 be asked 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 accurately recorded; (6) whether the inclusion of the defamatory statement was justifiable; (7) whether the defamatory statement's public interest lay in the fact that it was made rather than its truth (reportage).

Ontario Press Council Decision October 16, 2013 Matter 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

significant public interest. It was important that this difference in perception be acknowledged and discussed in an open hearing. The Councils 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 by the public. Nor is there clear knowledge about internal codes of conduct, such as the comprehensive one that the Star is guided by and has posted on its web site (entitled: Toronto Star Newsroom Policy and Journalistic Standards Guide). This lack of knowledge is contributing to the disconnect between the parties and should be of some concern to the newspaper. It is certainly of concern to the Press Council, whose very existence grew out of a desire to establish and 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: 3 Michael Cooke, Editor-in Chief, and Kevin Donovan, Investigations Editor and co-author of the story on the video. In considering Ms. Donleys complaint, the other complaints and the newspapers response, the Ontario Press Council determined that the broad issue to be addressed in the hearing was whether the newspaper had engaged in irresponsible, unethical investigative reporting. To provide both parties with a better sense of what the Council felt needed to be addressed in deciding this question, the Council identified three more specific issues: 1. 2. 3. Did the article deal with a matter that is in the public interest? Were adequate efforts made to verify the allegations before publishing them? Was Mr. Ford given adequate notice of the allegations and a reasonable opportunity to respond, and did the 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 in Grant v. Torstar identified a number of questions to be considered when deciding whether a newspaper has acted responsibly, in Council's view the three that are set out above are the important ones in this particular case. The basic requirement is to balance the constitutionally protected right of freedom of expression against the need to protect the individual's reputation and privacy. If that is fairly done, deciding to publish a communication that includes 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 for debate on matters of public interest is essential in a democratic society. One result is that we permit communication of facts a reasonable person would accept as reliable, even when absolute proof is lacking.

A copy of Ms. Donleys complaint and the Toronto Stars response as well as copies of the statements submitted at the hearing by the parties can be found on the Ontario Press Council website

Ontario Press Council Decision October 16, 2013 Matter 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

The Council believes that these questions are also important ones to ask when deciding if a newspaper has been both 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 ethical standards 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 decisions that the legal standard is not the only one that is applicable. The member newspapers know this is the case. For example, the Stars Newsroom Policy and Journalistic Standards Guide goes well beyond what the law would require. 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 the public interest. Rather they are the personal and private affair of Mr. Ford, and not relevant to his public role as Mayor. The Stars 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 appropriately subject to a greater level of scrutiny than if he was a private citizen. It is, therefore, in the public interest for media to report on his behaviour where that behaviour appears to be illegal and inappropriate, could impair the carrying out 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 who were said to have produced and to be in possession of the video were not disclosed and their backgrounds or motives were suspect. The allegations against Mayor Ford are serious ones and carry the potential for significant injury to his reputation and 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 Mayors alleged drug use is a video pro duced by anonymous 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 newspapers efforts to establish its authenticity, therefore, are critical in assessing whether the conclusions reached by the reporters are reasonable.

Ontario Press Council Decision October 16, 2013 Matter 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

In the article, the Star acknowledged that they had no way to verify the authenticity of the video. In the hearing the Star stated that notwithstanding the general prohibition on paying for news in the Stars policy and journalistic standards guide, there were extensive discussions at senior levels about whether to pay for the video so that it could be produced as concrete evidence. Ultimately the decision was made to continue to try to obtain the video without paying for it. The Council believes this was a reasonable position to take. The Star took a number of precautions to satisfy itself that the cell phone video was of the Mayor. These included: the reporters watched and listened to the video three times; they were allowed to pause the video; they asked questions of the men who showed them the video about the circumstances in which the video was shot; after watching the video, the reporters separately made written notes of what they had seen and heard; one of the reporters, Ms. Robyn Doolittle, regularly covers City Hall and is familiar with the mayors mannerisms; the other reporter, Mr. Donovan, heads up the Stars investigative unit and occa sionally covers City Hall; both reporters studied numerous city-hall-related videos of Mayor Ford; the reporters separately concluded that the man in the video was Ford; with respect to the quality of the video and whether it could have been manufactured, the Star noted the video was clear and distinct, not blurry or shaky, with the mayors face clearly visible; the reporters saw the video two weeks before the article was printed and had the time to consult with technical experts who advised that it would be very difficult and costly to create a credible, fake video that could have led the reporters wrongly to believe it was the mayor.

Council is of the view that the Star reporters were thorough in analyzing the video and came to a reasonable conclusion in deciding that it was a video of Mayor Ford. Use of Anonymous Sources: The right to use anonymous sources is set out by the Supreme Court in Globe v Groupe Polygone [2010] SCC 41 and National Post v The Queen [2010] SCC 16 where Justice Binnie stated: The public also has an interest in being informed about matters of public importance that may only see the light of day through the cooperation of sources who will not speak except on condition of confidentiality. The role of investigative journalism has expanded over the years to help fill what has been described as a democratic deficit in the transparency and accountability of our public institutions. There is a demonstrated need, as well, to shine the light of public scrutiny on the dark corners of some private institutions. At the Council hearing, other examples were given of important news stories in the public interest that relied to a greater or lesser degree on confidential sources. Use of confidential sources, however, is not an absolute right. Both the Supreme Court and the Council have determined that while it may be responsible to rely on confidential sources, the fact that they have been relied upon should be taken into account in determining the credibility and weight of the allegations that are contained in a publication. The reason why the newspaper is unwilling or unable to name a source is a relevant consideration. Ultimately, the question is still whether the investigative reporting as a whole and the evidence gathered by the reporters justifies reporting on the conclusions they have reached. In the article, the Star did not name the individual who allegedly filmed the video, nor did it name those who attempted to sell it and arranged for the reporters to view it. The Star submitted that this was understandable

Ontario Press Council Decision October 16, 2013 Matter 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

when the sources of the story were themselves potentially involved in criminal behaviour. For the reporters, senior leadership at the Star, and the newspapers lawyers, this was a reason why the newspaper was not prepared to move forward without an opportunity to watch the video. The Council believes the Stars reliance on the video as the primary evidence, the efforts it made to authenticate its contents and the decision to rely on anonymous sources to support the conclusions reached by the reporters, are all reasonable and credible in this case. Council does not agree with the position that the story could not be written unless the newspaper had the video in its possession or that it could not publish without naming its sources. Therefore it finds that the Star made adequate efforts to verify the allegations before reporting them. 3. Was Mr. Ford given adequate notice of the allegations and a reasonable opportunity to respond, and did the newspaper include that response in its reporting?

The requirement to treat fairly the individual who is the subject of investigative reporting includes informing him of the allegations being made and reporting his response in the article. This was well laid out in Grant v Torstar [2009] as part of the responsible communications defence in law. While the complaints received by Council did not express a concern on this matter, the complainants did express the view that the Star had an agenda to denigrate and demean Mr. Ford and seemed to suggest that the Star did not give enough credence to the Mayors denials. In describing its efforts to fulfill its responsibility to give Mr. Ford the opportunity to respond, the Star noted that it had not planned to publish until later, but decided to do so when the Gawker website published an on-line article at 8:28 p.m. Thursday May 16, 2013. The Gawker story was an account of its editor watching the video of Mayor Ford the previous week and so the primary allegation in the story the Star was planning to publish was now public. The Stars attempts to contact Mr. Ford, his staff and lawyer occurred between 9:04 p.m. and 10:30 p.m. the th evening of May 16 . The Star noted that CNN had already contacted the mayors office for reaction to the video. The Stars efforts included: a call to the Mayors chief of staff Mr. Towhey. They stated he would not listen to questions and hung up the telephone; calls to the Mayors press secretary that went unanswered; calls to Mr. Fords city hall office as well as his home that went unanswered the calls included messages asking him to comment on the Gawker story and informing him Star reporters had seen the video; at the hearing, the Star noted that the Mayor has a policy of not speaking to the Toronto Star, so its calls to him for comment go unanswered; visits to Mr. Fords home where knocks to the door and notes left in the mailbox went unanswered; a telephone conversation with Mr. Fords lawyer, Dennis Morris, seeking comments on the Gawker story posted earlier that evening. Mr. Morris challenged the veracity of the video and its content and called the allegations false and defamatory.

Early in the article, the Star included the comments from Mr. Morris regarding the Gawker story and reported that Mr. Towhey hung up the phone without answering any questions. The story did not mention the other efforts the Star made to reach the Mayor. Council believes it would have been wise for the Star to inform their readers of these additional efforts.

The concerns of the anonymous individuals is forcefully recognized by Justice Binnie in the National Post case, where he states: "When investigative reporting strikes at those in power it would not be unexpected that those in power, including the police, may wish to strike back."

Ontario Press Council Decision October 16, 2013 Matter 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

Given that the existence of the video had been made public by an on-line organization, Council agrees that the Stars decision to publish in a timely fashion the results of their more extensive investigation into the matter w as appropriate. Because of the fulsome efforts it made that evening, and the fact that it did obtain and report on Mayor Fords denial of the allegations through his lawyer, the Council is of the view that the Star did meet the requirement of good investigative reporting that affords the subject of the story the opportunity to be informed and respond. The Council has also considered whether there are other ethical standards that have been violated in this case. The only other issue raised by the complainants is whether this article, when considered in light of the Stars other reporting on Mayor Ford, demonstrates an improper motive on the part of the Star that has led it to publish the allegations here only because of what they saw as a dislike of the Mayor and his policies. This was strongly denied by Mr. Cooke and there is nothing in the article and the other material before the Council to support this allegation. No other issues of fairness were raised and the Council did not see any others in its review of the material and the submissions. Decision: For the reasons outlined above, the Council dismisses the complaint in this case Conclusion: The Council appreciates both the willingness of concerned citizens to submit their complaints about the Star article and the attention the Stars most senior officers gave to providing a full and considered response to the complainants concerns. The issues raised in this complaint are similar to a related complaint heard on the same day by the Council: 5 Harrison v Globe and Mail . These two matters have enabled the Council and others to consider both the important benefits and the potential risks associated with investigative journalism. The opportunity to address this issue in a public forum, at no cost to the complainants, is perhaps the best illustration of the reason why those who established the Council saw it as a means of deepening our collective understanding of the importance of responsible communication. The primary issue in these cases is whether an appropriate balance has been struck between the freedom of the press and the need to safeguard personal reputation and privacy. The complainants primary focus has been on what they saw as a lack of fairness in the way the newspapers treated their subject. The newspapers saw themselves as exposing questionable activities on the part of an influential public figure and thereby serving the public interest. The Council believes the principles underlying both perspectives are not inconsistent. Ultimately the question is how to promote and support good journalism that serves the public interest, without losing sight of the commonly accepted ethical standards that apply to all newspaper reporting. At the heart of those standards is the requirement of fairness.

Complaint from Ms. Connie Harrison regarding an article published by The Globe and Mail, dated May 25, 2013 entitled Globe Investigation: The Ford familys history with drug dealing

Ontario Press Council Decision October 16, 2013 Matter 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

Council hopes that this and the companion decision of Harrison v. Globe have helped to reaffirm that freedom of expression and freedom of the press are fundamental principles of Canadian democracy, as are individuals' Charter rights and expectations of fair treatment by powerful societal institutions. The complaints have also served as a reminder that the onus is on the press to demonstrate that it does balance those interests as it seeks to foster full and open discussion on matters of public interest and to do so in a manner that is transparent to its readers.