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Mediacheck

Furlong Libel Case a Big 'Test': Tyee Master Class Leader Leo McGrady

Media law is fast shifting. A few seats remain for this Saturday's crash course.

By David Beers 23 Oct 2012 | TheTyee.ca

David Beers is editor of The Tyee. To find out about three Tyee Master Classes being offered this fall, click here.

When John Furlong declared he would be suing the Georgia Straight and freelance journalist Laura Robinson for their story alleging he verbally and physically abused students when he was an 18-year-old physical education teacher in Burns Lake, B.C., I had a lot of questions, and fortunately, on speed dial, the perfect person to answer them -- Leo McGrady, Q.C.

The Tyee is fortunate to have as legal counsel McGrady's Vancouver firm, which specializes in libel law as well as labour law, human rights, class actions, and intellectual property.

McGrady has argued cases at all levels of Court in B.C., Alberta, and the Territories, and has been counsel on a number of leading libel cases. Were you to walk in off the street, settle into his office chair and seek his advice, you’d have to be ready to write a serious cheque.

Your happy alternative is to attend the Tyee Master Class this Saturday, during which McGrady will put you miles ahead in your knowledge of fast changing media law in the digital era. It's vital info not just for journalists but anyone who communicates in the public sphere.

If you think you're smart enough to risk not knowing what McGrady has to teach, let me ask a few questions:

Libel: Just what is it in 2012? Are we still the common law backwater?

What is the new defence of responsible communication on a matter of public interest?

Hypertext links: Are you liable for using these?

Electronic discovery in libel cases: Do you have to produce your hard drive?

Can you be sued for libel in another country with different laws?

How much protection, really, can you promise your sources?

Why has copyright law changed profoundly regarding journalists?

McGrady will intellectually defuse these and more landmines that could cost you a whack of dough if you're not in the know. And we think the price is a bargain, just $95, with lunch and a refreshment derived from grapes decantered.

But don't dally. There are fewer than ten seats left. Click here for info.

Meantime, I got in touch with McGrady to pose questions related to the Furlong case that had been on my mind. Here's that conversation.

DB: As an expert observer, what are your thoughts as John Furlong and the reporter who published allegations against him now vow to sue each other for libel?

LM: "My first thought was that the case will be a significant test of the new 'responsible communication' defence. There have been over 30 decisions applying the defence since its creation by the Supreme Court of Canada in 2009. However none of these involved such a high profile figure as Mr. Furlong, nor such an accomplished, highly regarded journalists as Ms. Robinson."

Some have offered the opinion that truth need not be Robinson's defence, given recent court rulings, and that all she need do is show a diligent attempt to attain the facts even if they can't be proven without a doubt. Do you agree?

"I agree that truth need not be her defence. If she succeeds with the responsible communication defence, she may be dead wrong on the facts still not liable for defamation. However, she will have to show much more than a diligent attempt. There are eight factors the Court will consider in assessing the defence."

In calling a press conference and declaring the story to be totally false, has Furlong closed any doors? Did he open certain doors for media to discuss the case?

"I don't believe he has closed any doors. Holding a press conference may be taken as an invitation to discuss and comment on the events. It certainly contributed to the further publication of the material. I first heard about the material from the media following his press conference.

"On the other hand, it was probably untenable for such a high profile figure to remain silent in the face of such serious accusations."

The Georgia Straight's story is based on signed affidavits by the sources. Do affidavits carry more weight with a judge than, say, a taped interview? If so, when should journalists be seeking signed affidavits and what are the best -- most solid -- conditions under which to get them?

"Both of course is better. Generally affidavits are superior, because they are under oath. But it should be pointed out that neither will generally be admissible for the truth of the contents unless the originator testifies in Court."

How will Furlong go about measuring damages in monetary terms, do you think? How high might they go?

"The highest Canadian award I'm aware of was $1.6 million. The average is between $70,000 and $100,000. Damages could be at the upper range, between one and two million if he was found to have been libeled. Jury awards are generally higher than awards by Judges alone."

How will Robinson? How high might they go?

"The damage to Ms. Robinson if Mr. Furlong is found to have libeled her would also be significant -- over $100,000."

If it's true that Furlong's lawyer and publisher rebuffed the journalist asking for an interview, will that hurt Furlong's case?

"There is no obligation for either to speak to the media. That decision is always difficult to make. Probably a vigorous denial prior to publication would have helped Mr. Furlong."

Given the new court interpretations on libel in Canada, do you think we'll see more or fewer libel cases?

"That's difficult to say. I think it may reinvigorate the tradition of investigative reporting that flourished post-Watergate, until it was deadened by a passive, commercially driven traditional press."

Laura Robinson is a seasoned free-lancer and was published by an established publication. But allegations can be floated in personal blogs, or even tweets. What are the libel risks there? Put another way, what is the lesson in this case for "citizen journalists" or anyone participating in the public conversation via social media?

"There is much for citizen journalists to learn from the case. The most important lesson is to be familiar with libel law, particularly with this new defence, and use it as a guide while engaging in aggressive reporting and writing."

In listening to all the discussion of this case in the past couple of weeks, what's the main point you think has been mostly missed, or lesson most important to take away?

"That Canadian libel law is moving away from its reputation as 'the place to go' to sue for libel. It is no longer the most plaintiff-friendly, reputation protecting English-speaking jurisdiction in the world, applying laws originating in centuries past, designed to preserve the reputation of British gentry."  [Tyee]

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