MORE PROOF OF A RULE

© David F. Sutherland 1998

David F. Sutherland & Associates

Vancouver, B.C.

dfs@dfsutherland.com

There is a general rule that there is no winner in a libel suit. It’s not really an editor’s saying. As far as I recall, it’s usually quoted by judges. Every time I hear the rule, I wonder if it is some sort of principle of human nature, on the one hand, or if it is a policy guide for judges, on the other hand, to which they intentionally adhere.

Perhaps it doesn’t matter which explanation ensures that no party to a libel action ever seems to be wholly vindicated. The exceptions are so few that they serve only to prove the rule.

A five-week libel trial, heard in Victoria over the past six months, has just been decided (May 20th). It serves to illustrate the point. Claus and Eileen Pressler sued David Lethbridge and Westcom TV Group, owner of CHBC TV in Kelowna concerning a broadcast suggesting that an admitted racist was planning paramilitary activity.

Those on the Internet can read the judgment on line, all 177 paragraphs of it. Go to the BC Courts Search Page at "http://www.courts.gov.bc.ca". Stipulate 1998 Supreme Court decisions and type "pressler" in the search window and click on the search bar. That works on May 24th (the day I am writing this) but later in the year there may be one or two more cases containing the name "pressler". To be more specific, so you don’t have to sort through unrelated cases, I’d add the judge’s surname in the window: "pressler AND owen-flood".

Come to think of it, this BC Court Search Page is a pretty good news-source for community newspapers. The Pressler case concerns the Salmon Arm community. If you put "salmon NEAR arm" in the search window for 1998 Supreme Court decisions, on May 24th, you get four trial decisions (so far this year). These include the Pressler case, a wrongful dismissal case between Karin Noz and Sears – which might be newsworthy in that town, etc.

Some community newspapers conduct regular searches for Court decisions which mention their communities. The great thing is that a "fair and accurate summary" of a court decision is protected by qualified privilege. In effect, it’s a whole new beat, effectively accessed without leaving your newsroom. The search can identify all mention of your community in the text of all Supreme Court decisions. For example, the Victoria decision in the Pressler case is available within a day or two of pronouncement to an editor in Salmon Arm without the need for a correspondent on site, without all the trouble of following the case, or arranging notice of its ultimate decision, without any long-distance charges, etc.

Anyway, back to the Pressler case. Eileen Pressler, a plaintiff, was described by the judge as distributing what

. . . can only be described as viciously white supremacist, racist, and anti-Semitic [viewpoints]. Such viewpoints go beyond what is acceptable in a free and democratic society. They engender hatred of identifiable groups in violation of the Criminal Code. Thus they are beyond the pale of the law. They are both tortious and criminal. As for one source for the broadcast at issue, the defendant, David Lethbridge, the court states: Alas, I find that in his enthusiasm to struggle against bigotry and intolerance he allowed his mind to fall into such a state of anger and unreason as to lose balance . . . In reviewing the history of confrontations between the protagonists, the judge finds Dr. Lethbridge’s conduct "constituted an unlawful act in civil law". This, of course, is mild in comparison to Ms. Pressler’s hate crime. Still, the judge finds that Dr. Lethbridge "restated rumours in a cavalier manner without regard to whether they were true or false . . . reckless as to the truth or falsity . . ." In another passage, the court states: I accept that Lethbridge was motivated by laudable ideals in fighting the twin scourge of racism and anti-Semitism. However, I find that in his zeal his behaviour removes from his reach the defence of qualified privilege . . . He spread rumours which, in many instances, he knew not only were untrue, but could not possibly be true. It cannot be said that he acted with an honest belief and without malice. The journalists fared little better. A news reporter, Blaine Gaffney, was found to have committed trespass. He used "exploitative editing", "manipulative techniques", sensationalism, intentionally misleading viewers by means, among others, of "massive omissions" which are described as selective. Ultimately, Mr. Gaffney and his employer, Westcom, are found to have been actuated by express or actual malice, the first such finding against a mainstream journalist in British Columbia, or indeed Canada, in recent memory. By far the greatest portion of the damages are assessed against the station.

At the end of the day, some small amount of dollar damages and costs will probably change hands, a paltry sum compared to the risk, fees and trouble of a 25-day trial in a distant city. No one’s reputation is vindicated in the least. No one emerges unscathed. Certainly the result should discourage libel contestants on all sides as an example of the rule, or perhaps as an example of its application by the judiciary.

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