It’s been 12 years since the release of the first data from the first phase of the Iowa Libel Research Project. Two professors of journalism and a professor of law collaborated to explore what makes libel plaintiffs sue the media and whether the plaintiffs get what they want. The first results were published in the California Law Review (74 Calif.L.R. 789) in May of 1986. Almost immediately, media lawyers used the statistics and the profiles to hone strategies and tactics to avoid or deflect claims. How well has this worked? What lessons, bitter or otherwise, have the media learned?

The professors (Bezanson (Law), Cranberg and Soloski (Journalism)) must have used an army of students to do their study. First, they assembled all American libel decisions against the media over a 10-year period. Second, they reviewed a larger population of claims which were settled or dropped, which they obtained from a media-libel insurer. Third, they selected 164 cases and conducted structured interviews with the plaintiffs and the media defendants. Fourth, they surveyed or interviewed editorial staff from over 170 newspapers and lawyers on both sides.

Two points need making. First, if you’re even a little bit skeptical, you’ll suspect that nearly anything can be proved with statistics, especially in the hands of professors, and there is a risk that results confirm the initial biases of the academics or reflect the flaws in their methods. Second, this brief column does not address more than, say, one or two percent of the findings.

The results:

• Most plaintiffs who went to trial lost
• Of the 164 selected decisions, the plaintiff lost in over 150 cases. This high percentage may need to be adjusted for the different onus and constitutional context in Canada. However, even in Canada, a good proportion of plaintiffs lose their libel claims.
• Winners, aside from two high-dollar decisions, received a very small dollar recovery by US standards, averaging $20,600 from which legal fees for trial would be deducted.

• Hill v. Church of Scientology - $1,600,000
• David Baines - $875,000
• Eagleson - $700,000
• Botiuk - $465,000
• Norman v. Westcom - $300,000 (approximately)

The Canadian experience is similar to, but less extreme than, the American experience. Canadian plaintiffs who go to trial have, on average, a better chance of "winning" than Americans, who only stand an 8% chance of winning, a 6% chance of winning any money at all, and a 1.2% chance of winning a monetary award that exceeds costs by any appreciable amount.

Canadian law is very unfriendly to most libel plaintiffs. US law is very, very unfriendly. What can we learn from the comparison? One point is that the unfriendliness does not appear to reduce the per capita number of libel trials against the media, as much as might be expected. Even with a 98.8% chance of a negative economic result, US plaintiffs still seem to go to trial against the media almost as frequently as Canadians, on a per capita basis. This suggests (to me) that economics is not the primary motive. Further, it suggests that many of our claimants would still be suing, even if advised that success was very unlikely, even if Canadian law were as unfriendly to plaintiffs as American law.

You might discount these conclusions on the basis that Americans are more litigious or that US lawyers may not have told their clients about the daunting odds. However, there is no reason to believe that Canadian lawyers are any more realistic than their American counterparts. In any event, the Iowa study finds that 86.5% of US plaintiffs would sue again if faced with the same situation. Only 12.5% would seek a better lawyer, amazingly low, considering that over 90% lost their cases and only 1.2% received any appreciable financial recovery.

Since it’s not money, the researchers assessed why plaintiffs sue the media. The major motivating factors were:

1. restoring reputation;
2. correcting what plaintiffs viewed as falsity; and
3. vengeance.

1. reputation defended – 41%
2. support from family and friends – 9%
3. further publicity stopped – 40%
4. media punished – 10%

1. through a complaint to BC’s Press Council (at the time of the Iowa study only Minnesota had a Press Council among all US states); or
2. if the media immediately entertained:

1. a clarification;
2. a retraction;
3. a correction;
4. an apology; or
5. expression of opposing opinion and criticism of the original journalism.

Seasoned editors know that "hearing-out" complaints is part of the job. In practice, it reduces lawsuits to about one-third of what might otherwise prevail. That is my estimate after about 12 years working on the assumptions derived from the Iowa study. It works, at least so far as the newspapers that I represent. The complainer may not be motivated by money, but the newspaper certainly should be, at least in part. Over 85% of the outlay of both Canadian and American media insurance programs is expended in legal fees and defence costs. Very little is paid out in damages to claimants. It’s seldom about money, so far as claimants are concerned, but you can save a bundle in time and money by avoiding confrontation. It’s the first contact that makes all the difference – it sets the tone.

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