Rob Ford, Toronto Star, And Libel Chill: How Gawker Got The Crack-Smoking Scoop

If a newspaper isn’t willing to deliver news of public interest to its readers, it’s only a matter of time before someone else will step in. The Toronto Star learned that lesson the hard way earlier this month when Gawker, a New York-based gossip blog, scooped the century-old newspaper by announcing Toronto Mayor “Rob Ford Smokes Crack Cocaine” in a blog post that has since been viewed by almost 1 million people.

While there is still no confirmation that Ford has ever smoked crack – a video that purportedly provides the evidence has not yet been obtained by a publisher -- it is now clear that Toronto Star reporters had viewed the same video that was the basis of Gawker's claims about Ford's alleged crack-smoking, well before Gawker broke the news. Why didn’t the Star publish a story sooner?

There appear to be both legal and cultural issues at play. Libel laws are harder on journalists in Canada than they are in the U.S.: In a defamation suit, the burden of proof is on the accused, not the accuser. “The whole structure of our present defamation law is very much in favour of the well-financed plaintiff,” Toronto libel lawyer Brian Rogers told the blog Hazlit. A handful of years ago, it was even harder for a Canadian reporter to protect himself from liability -- in order to defend accusations of defamation, the journalist would have to prove that any supposedly defamatory statement was true, Rogers told IBTimes in a phone interview. But in 2009, the Canadian Supreme Court relaxed the law, ruling that a journalist could use the “responsible journalism” or “responsible communication” defense in defamation cases – by demonstrating that a report is a matter of public interest, and that a news outlet made every effort to verify the facts before publishing.

The illegal drug habits of a city official would certainly seem to qualify as a matter of public interest. Since the Star has not yet commented on its delay in reporting on the allegations, we are left with little beyond speculation to explain why they didn't run with the story earlier. Perhaps they were waiting to publish until they had firmer evidence. Still, since Gawker editor John Cook published his account of having seen the crack-smoking video, the Star has published story after critical story about the embattled mayor and his alleged drug use, making it difficult to conclude that the Star delayed publishing strictly because of "libel chill" -- a reluctance to report aggressively for fear of legal ramifications. As far as we can tell, the Star did not come into possession of any new evidence before May 17, when they published the story -- which they labeled as an "exclusive." The decision to publish when they did appears to have been largely if not wholly informed by Gawker's scoop.

“I don’t believe for a second that the Star sat on the story because they were worried about libel,” said Christopher Bird, a family lawyer and journalist who recently wrote about Canada’s libel laws for Torontoist. Asked why he felt the Star began to cover it extensively after Gawker broke the story, Bird said it may have been because Ford’s response to the allegations made them seem credible.

Rogers believes the Star, which he said has been "on the leading edge of investigative reporting," was simply trying to be responsible by making "every effort they could to verify the allegations." Indeed, the responsible communication defense demands that "the more serious the allegation, the greater the care that should be taken," he said.

On Tuesday, Gawker's Cook appeared on a CBC Radio segment to debate the ethics of so-called “checkbook journalism,” a discussion prompted by Gawker’s “Crackstarter” crowdfunding campaign to raise $200,000 for the purchase of the supposed video evidence from a tipster. Cook insisted it was “routine” for news organizations to pay sources, and said he was convinced that the video he saw was the real deal. He criticized the Toronto Star reporters, who saw the same video before he did, for hesitating to publish the allegations.

“The idea that the proper role of a news organization is to be aware of incredibly important information … and just sit on it while you dot your I’s and check your T’s,” Cook said, “that’s the kind of the thing that creates the climate you had in Toronto. Anyone who was paying attention knew he had a substance abuse problem and no one was saying anything about it."

“The best thing that has happened to Rob Ford is a news culture in Canada and Toronto in which people are timid and afraid to print bad things about him,” Cook later said. “I’m glad that finally the dam has broken a little bit.”

Multiple sources for this story referred to Ford’s drug use as an “open secret” in city government and the Toronto media, and more than one acknowledged a culture of timidity among Canadian journalists, who are popularly thought to have higher journalistic standards than here in the U.S.

"We don’t have the same kind of traditional muckracking that [U.S. journalists] do,” said Jeffrey Dvorkin, a former chief journalist at CBC Radio who debated against John Cook on Tuesday, and who believes the hesitancy to report aggressively is largely due to Canada’s history of stringent libel laws, and perhaps an unwillingness within the Toronto media to jeopardize relationships with public officials they must deal with regularly.

“It’s not so much pandering as it is self-preservation,” Dvorkin said. “You have to go along to get along.”

Jesse Brown, a blogger for MacLeans, thinks timid Canadian journalists are sometimes guilty of using the "high journalistic standards" argument as an excuse for not reporting on an important story. “When you sit on a story that is of such incredible and urgent public interest, you are not going to say, ‘I am afraid to publish this;’ you are going to say ‘this does not meet our journalistic standards.’" Brown said that he and most all of his journalist friends and colleagues have known about Ford’s rumored drug use “for months and months.

“When you have a story that all of the journalists know about but the public doesn’t, that’s alarming,” Brown said.

Brown, for one, is grateful that Toronto's journalistic culture is sharing some of the Internet spotlight with the crack-smoking scandal. "It's exposing some weird stuff that has festered here to the world," he said. "I welcome this, and think it's wonderful. "

A request for comment from editors at the Toronto Star was not returned.