In January of 1998, BC Supreme Court deprived a newspaper of a defence to a libel action due to its failure to identify the publisher and the address in the required location in the paper. I’ll come back to that point below.

Jim Fulton, former long-time federal MP for Skeena sued the West End Times Ltd. and an editor. An editorial concerning a criminal conviction of the Nanaimo Commonwealth Holding Society (Bingogate) had mistakenly identified Jim Fulton as the Treasurer of that Society in place of Dave Stupich, another high-profile member of the NDP.

The editor couldn’t give the court any reason for naming Fulton in error. Fulton’s name may have been on his mind because of an earlier telephone interview. The newspaper office was "extremely busy and chaotic at the time he wrote the editorial because of a new computer system being implemented".

In any event, the judge paid closer attention to the steps taken after publication. An anonymous reader notified the paper of the mistake, the next day. The editor met with the publisher. Imagine that meeting, if you will. They agreed on an immediate apology and retraction in the next issue, the following week. The editor was to contact Mr. Fulton to allow him to suggest the content. The editor said, at trial, that he tried to contact Jim Fulton twice by phone. Fulton’s office logged calls at the time and had records of only one call, after the retraction and apology had already run.

The apology stated that "Dave Stupich . . . was the man supposed to have been referred to in the editorial". It also stated that "Fulton was not associated with the Society . . . as far as we are aware".

The court found that the paper had not made "timely" or "appropriate" attempts to reach Fulton, nor had it investigated his involvement in Bingogate by other means. The court accepted that the newspaper "sincerely" regretted the error and "genuinely wished to publish a proper and timely apology". However, the court found that the retraction was qualified because of the phrase, "so far as we are aware".

The paper’s offer to allow Fulton to draft his own version was made 37 days after the original editorial. Fulton rejected that offer because "at that time he felt it would only draw readers back to the original defamation". The judge "concurred" with that "logic".

At trial, the defence attempted to rely on s. 7 of the Libel and Slander Act. That section limits claims to "actual damages" if its conditions are met. That would have been a complete defence since Fulton couldn’t prove any actual damages.

However, s. 7 requires that the paper print a "full and fair retraction" in the next issue or within three days of service of the Writ. The court found the retraction was qualified because of the words, "so far as we are aware". In other words, the court found that a retraction must state that Fulton had no involvement in Bingogate. It was not enough for the paper to admit it made a mistake and to state there was no foundation for its statements about Fulton. The court said the paper should have, and could have, gone further. This aspect of the decision is disturbing. In many situations, stating the opposite of the original error may not be feasible. Hopefully this aspect of the case will be contained to its facts, i.e., the circumstance that Fulton’s utter lack of involvement in Bingogate "could easily" have been established if the paper had attempted to contact "a knowledgeable independent source".

Section 7 was also held to be unavailable to the paper because the original article was held to "involve a criminal charge". As far as I have been able to discover, there has never before been a case interpreting that particular disqualification. There has not been such a case in BC or in Ontario or anywhere else with a similar section. The original publication mentioned the criminal conviction of the Society and wrongly said that Fulton was a director and the treasurer responsible. Close enough, says the judge, even though Fulton was never said to have been charged. To be fair, though, the thrust of the defamation was that Fulton was responsible for the criminal conduct of the Society and that Fulton was unrepentant. That, of course, was an opinion which might have been defended if expressed about Stupich, but was indefensible due to the mistaken identification.

The last reason for disentitling the paper to the benefit of s. 7 concerned the masthead. The court followed an earlier Ontario decision requiring that the name of the publisher and the address of the paper must appear at the top of the editorials or on the front page. This is a necessary condition to getting the benefit of ss. 5, 6, 7, 8 and 11, all important "newspaper defences". Every paper in BC should heed this warning. The modest damages awarded to Fulton, $10,000 plus costs of trial, were limited by the nature of the West End Times. The court found the paper was primarily a vehicle for advertising and doubted its editorial content was a priority for its readers. Many BCYCNA members are far more influential. The Vancouver Sun changed within days of the decision. They left their masthead where it was, below the fold, but placed a line in small print right under the heading "Editorials".

It doesn’t have to be big. The publisher can be a person or a company (although, in my opinion, preferably the latter for various reasons). The address is the street name and number where the paper is put together, the physical location of the newsroom, etc.

If you don’t have editorials, put it on the front page – anywhere. Make it large enough to be legible.

Please don’t ask me why these locations are the only alternatives. I don’t know why the bottom of the editorial page isn’t sufficient. There is no practical rationale that I can see, but it is now the law in BC.

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