The Globe and Mail recently carried a story by Margaret Wente about two defamation judgments against the fifth estate,most recently one by Mr. Justice Douglas Cunningham of the Ontario Superior Court.
The CBC has filed notice that it will appeal this judgment, which could have a dramatic effect on Canadian journalism.
Our story, The Heart of the Matter, dealt with Health Canada's Health Protection Branch and questions about a medication called nifedipine. It followed previous fifth estate stories about questionable practices at the Branch.
No one from Health Canada or the drug's manufacturers sued the CBC, although the program focused on them. The two doctors who did sue came into the story only because of their participation at a Health Canada committee meeting.
We recognize that investigative journalism carries risks -- making mistakes, causing offence even in the absence of mistakes, unfavourable court judgments. We try hard to keep such setbacks to a minimum, but we also seek out their lessons and implications.
Our lawyers and senior journalists have analyzed the implications of Judge Cunningham's judgment and found important questions whose answers could have serious implications for every journalist in Canada. Among the concerns:
How do journalists report on conflict of interest? We believe that the legal and popular usage of the term "conflict of interest" is clear, and that an allegation of conflict does not imply actual dishonesty or corruption. The judge's finding to the contrary may have grave implications for the media's ability to report on conflict of interest. The judgment can be read as favouring a circumscribed "he-said/she-said" formula, with no journalistic analysis applied.
How do journalists prove their sincerity? Despite their testimony, the judge ruled that none of the respected journalists involved in The Heart of the Matter could possibly have believed in the truth of their story.
How is urgency measured? In arguing qualified privilege as a defence, journalists must demonstrate an element of urgency in what they are reporting. The time the program took to research and prepare a complex story was held against it.
How does management supervise journalists? This judgment can be read as prescribing that managers must make themselves privy to the contents of conversations among journalists. The judgment suggests that the freelance producer, who brought the story to the program, was left entirely unsupervised to conduct a reckless tirade. This is contrary to the evidence of all the CBC employees who testified about how the program was, in fact, prepared.
The court effectively decided on its own version of "industry standards" without the benefit of any evidence from individuals with expert knowledge of the practice of journalism or, indeed, without any other objective support.
It is also certainly not the case that "one whistle blower" was the foundation for the fifth estate's story. A team of journalists conducted research over several months, many dozens of people were contacted, cross-checked and interviewed. Many of them appeared in our broadcast, and thousands of documents were scrutinized.
The notice of appeal asks the court to review Judge Cunningham's interpretation of the facts, particularly with reference to the documentary evidence and the uncontradicted testimony of witnesses, concerning the truth of certain facts stated in the program and the journalistic and editorial standards followed in its production. The CBC is also challenging the judgment's finding of malice.
This decision flies in the face of the reputation the fifth estate has earned over 25 years. Its most recent season, one of its best, was highlighted by several stories any journalist would have been proud of, including the previously untold story behind the shootings at Montreal's École Polytechnique (which was awarded the Canadian Association of Journalists award for long-form investigation) and two stories about the controversial leadership of the Toronto police union.
As well, the fifth estate won four prizes at television's most recent Gemini awards -- the most for any information program.
The CBC is sensitive to the cost and delays involved in prolonging litigation. But the legal issues raised by this judgment must take paramount importance to the CBC as a public broadcaster. Tony Burman is executive director of CBC Television News, current affairs and Newsworld.