By Brittany Duggan

It’s no secret that journalism today is in great flux.

For years, the industry has been negotiating fast-paced digital disruption.

This has required journalism to seek new ways to pay for itself while still serving its civic duty. The decline in resources means, among other things, a decline in the ability to pay for deeper, nuanced, investigated reporting.

With resources in decline at many media outlets, investigative work and reporting is sometimes left to freelancers. With the changes in the industry, there are ethical, legal and contractual issues that freelance journalists need to be aware of.

Freelancers and legal matters

At the same time as resources are shrinking, freelance contracts over the past decade have been increasingly asking freelancers to indemnify publishers from libel lawsuits. This means responsibility for defamation suits resulting from a freelancer’s work is placed entirely on the freelancer.

Signing such contracts is a risky proposition for a freelancer, a subject that you can read more about here and here.

With such contracts becoming more and more common, the risks associated with freelance journalism are increasing. What should freelancers – and indeed all journalists – do to ensure they are on solid legal ground when reporting on controversial topics?

When journalism moves faster, the law has to keep up

 Journalists work to industry standards, defined by the Canadian Associations of Journalists' guidelines. But there are also legal concerns.

A common complaint that arises from deeper, investigated stories is defamation – any negative statement about a living person or company that causes damage to reputation.

Libel is the printed word form of defamation. Exposing truth and uncovering injustice without crossing the line into defamation territory is one of the biggest challenges for journalists and media companies. It’s a challenge that has occasionally led to the courtroom.

Doing this work fairly and with balance requires a considerable amount of time. Time few journalists have anymore.

Responsible communication

Responsible communication is a defence against libel. It basically requires that a journalist do responsible and ethical reporting. Prior to 2009, the defence was just called “responsible journalism” but the Supreme Court of Canada adjusted the term to acknowledge that journalism is being published in a multiplicity of ways online, such as blogs and, increasingly, on social media.

A number of factors are considered when mounting a responsible communication defence. Among these factors are the question of whether the story is of importance to the public, whether sources are reliable and reputable, and whether the reporter sought to report both sides of the story.

Deadlines and legal implications

Globe and Mail investigative reporter Kathy Tomlinson is all too familiar with the real legal aspects of reporting responsibly. “I’ve been a reporter for almost 30 years,” she says, adding, “I’ve done investigative for most of it.”

Tomlinson encountered the Canadian court system for a rare case in 2011. She was still with the CBC Television show Go Public and the story concerned involved an American doctor who had been banned from practising in Arizona and now had patients in B.C. complaining about his work. The surgeon initially sued the sources in her story for defamation, not the story itself and therefore not Tomlinson and the CBC.

However, Tomlinson and the CBC eventually became part of the lawsuit. While staff reporters generally have a media outlet and sometimes a legal team behind their investigative reporting work, freelancers are not always so lucky. This makes it even more critical for freelancers to understand responsible reporting practices.

When it comes to reporting both sides, it’s considered common practise to give someone at least 48 hours to reply to a request, be it a question or request for a comment.

In a competitive media environment, 48 hours can seem like an eternity. Think of how quickly we learn about breaking news. Fact checking becomes frantic, and inevitably, susceptible to error. This creates an even more vulnerable state for journalists and media companies.

Tomlinson said that, above all, it’s important to spend the time necessary to do things properly. She worked on the Go Public story for three months – a considerable amount of time to spend on a story, by today’s standards.

“Most reporters don't have this kind of time,” says Tomlinson. “Responsible communication takes time.”

Tomlinson described the evidence she had to submit to defend the libel case brought against her, including notebooks, emails, anything still on record that had to do with the story. Any indication that her reporting was laced with malice could have undermined the case in court.

In the end, all charges against Tomlinson as the journalist were dropped because of the defence of responsible communication.

The stakes are high

The recent changes in the media world are not going unnoticed by the wider public. It’s the reason there are critics of the media and, in some cases, a sense of distrust.

“It’s a worldwide problem in democracies,” says Tomlinson, “that journalism is suffering and the public is suffering as a result."

Journalism at its best serves public interests; it is the eyes and ears – the watchdog – for the public.

With the shifting media landscape bringing more risks for journalists and higher stakes for journalism, responsible communication is more important than it’s ever been – both for individuals and for the reputation of the profession at large.

 

Brittany Duggan is a freelance journalist and editor based in Vancouver. Her work has appeared on CBC Radio and in the Georgia Straight. Follow her on Twitter @brittanynduggan and find on her LinkedIn.