OPC Decision Donely vs Star Oct., 2013
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Transcript of OPC Decision Donely vs Star Oct., 2013
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7/27/2019 OPC Decision Donely vs Star Oct., 2013
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Ontario Press Council Decision October 16, 2013
Matter Regarding: Complaint from Ms. Darylle Donley regarding an article published by The Toronto Star, dated May 17, 2013 entitled Rob
Ford in crack cocaine video scandal
1
Matter Regarding: Complaint from Ms. Darylle Donley regarding an article published by the Toronto Star, dated
May 17, 2013 entitled Rob Ford in crack cocaine video scandal
___________________________________________________________________
Background:
The Ontario Press Council (Council) received a number of complaints about the Toronto Star article from
individuals across the country. While it focused on one representative complaint, that of Ms. Donley, it also took
steps to ensure that all of the concerns raised by the complainants were covered in the hearing. This was done by
setting out the issues in advance for the complainant and the newspaper, and by using the opportunity to ask
questions in the hearing.
Council invited Mr. Ford, the main subject of the article, to participate in the hearing, which is available at no cost
to complainants. This was to ensure he was aware of the opportunity to be heard. As well, Council recognized that
none of the complainants was in a position to contest or comment upon the accuracy of the newspapers account
of their pre-publication attempts to alert Mr. Ford, or to seek his response to the allegations about to bepublished, a key issue for the Council. He did not file a complaint and did not attend the hearing.
With respect to the complaint brought forward by Ms. Donley, the Press Council decided it was important to hold a
public hearing in this matter for two reasons:
First, the complaints raised important, substantive issues about fairness and balan ce. The Council only recently set
out its view of what constitutes responsible investigative journalism1
in its decision in Marin v the Toronto Star,
*2011+. Ms. Donleys complaint provided an opportunity to Council to broaden its analysis and to apply standards
it has developed in past decisions. In addition, the Supreme Court of Canada, in Grant v Torstar Corp [2009] SCC
61, set out important new guidelines to be considered when determining whether allegations contained in a
newspaper article can be justified as responsible communication on a matter of public interest2. In the opinion of
the Council, this made it important that there be a public discussion of the issues in this case.
Second, and equally important, was that the language of the complaints and the language of the newspapers
response raised the possibility of a fundamental disconnect between the two parties on how to assess the content
of the Stars article. The complainants, including Ms. Donley, emphasized what they saw as a simple lack of fairness
in the way the newspaper accused Mayor Ford of illegal drug usage, based on information and evidence obtained
primarily from anonymous and allegedly criminal sources and without having in its possession the best possible
evidence in the form of the video itself. For them, it was not possible to consider this article on its own and apart
from what they saw as a continuing, negative and accusatorial approach toward Mr. Ford by this newspaper. For
the Star, the article demonstrated the value of investigative journalism in bringing forward relevant information
about the inappropriate behaviour of an important public figure and thereby furthering a debate on a matter of
1In the Marin v Toronto Star, the OPC attempted to define investigative journalism as involving the attempt to determine what the journalist
perceives to be the most credible conclusion to be drawn from an extensive exploration of alleged wrongdoing in business, government or
elsewhere.., by definition, an investigation is being conducted, and while no explicit finding may be made, the journalist is justified in
assessing the information received and making his or her judgment on its credibility and weight when preparing the series of stories.`2
In Grant v Torstar, Chief Justice McLachlin set out the following (although not, according to the court, necessarily exhaustive) questions to be
asked in considering whether the newspaper acted responsibly: (1) the seriousness of the allegation; (2) the public importance of the matter;
(3) the urgency of the matter;(4) the status and reliability of the source; (5) whether the plaintiff's side of the story was sought and accurately
recorded; (6) whether the inclusion of the defamatory statement was justifiable; (7) whether the defamatory statement's public interest lay in
the fact that it was made rather than its truth (reportage).
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Ontario Press Council Decision October 16, 2013
Matter Regarding: Complaint from Ms. Darylle Donley regarding an article published by The Toronto Star, dated May 17, 2013 entitled Rob
Ford in crack cocaine video scandal
2
significant public interest. It was important that this difference in perception be acknowledged and discussed in an
open hearing.
The Councils review of this and other complaints it has received has led it to conclude that the robust and
extensive journalistic standards that good newspaper reporting should meet are not well known o r understood by
the public. Nor is there clear knowledge about internal codes of conduct, such as the comprehensive one that the
Star is guided by and has posted on its web site (entitled: Toronto Star Newsroom Policy and Journalistic Standards
Guide).
This lack of knowledge is contributing to the disconnect between the parties and should be of some concern to the
newspaper. It is certainly of concern to the Press Council, whose very existence grew out of a desire to establish
and promote good journalistic practices and then to hold its members responsible for meeting them.
The Hearing and Issue to be Decided:
A public hearing was held September 9, 2013 attended by Ms. Donley and representatives from the Toronto Star:
Michael Cooke, Editor-in Chief, and Kevin Donovan, Investigations Editor and co-author of the story on the video.3
In considering Ms. Donleys complaint, the other complaints and the newspapers response, the Ontario Press
Council determined that the broad issue to be addressed in the hearing was whether the newspaper had engaged
in irresponsible, unethical investigative reporting. To provide both parties with a better sense of what the Council
felt needed to be addressed in deciding this question, the Council identified three more specific issues:
1. Did the article deal with a matter that is in the public interest?2. Were adequate efforts made to verify the allegations before publishing them?3. Was Mr. Ford given adequate notice of the allegations and a reasonable opportunity to respond, and did
the newspaper include that response in its reporting?
Analysis
What is it that makes a piece of investigative reporting irresponsible or unethical? While the Supreme Court in
Grant v. Torstar identified a number of questions to be considered when deciding whether a newspaper has acted
responsibly, in Council's view the three that are set out above are the important ones in this particular case. The
basic requirement is to balance the constitutionally protected right of freedom of expression against the need to
protect the individual's reputation and privacy. If that is fairly done, deciding to publish a communication that
includes allegations against someone is defensible. Even if the newspaper making the allegations is unable to
prove that they are true, it may legally publish them if all three of these requirements are met. The capacity for
debate on matters of public interest is essential in a democratic society. One result is that we permit
communication of facts a reasonable person would accept as reliable, even when absolute proof is lacking.
3A copy of Ms. Donleys complaint and the Toronto Stars response as well as copies of the statements submitted at the hearing by the parties
can be found on the Ontario Press Council website
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Ontario Press Council Decision October 16, 2013
Matter Regarding: Complaint from Ms. Darylle Donley regarding an article published by The Toronto Star, dated May 17, 2013 entitled Rob
Ford in crack cocaine video scandal
3
The Council believes that these questions are also important ones to ask when deciding if a newspaper has been
both responsible and ethical when it publishes the results of its investigative reporting. They represent the law;
more than that, they reflect the principle that the person being written about must be treated fairly.
The Council has expanded on this fairness requirement and makes reference to commonly accepted ethical
standards when assessing whether a newspaper publication is acceptable. For example, it has ruled that an article
may not be unnecessarily hurtful to the person against whom allegations are made. Answering the questions set
out by the Supreme Court may be determinative. However, it has also been emphasized in past Council decisions
that the legal standard is not the only one that is applicable. The member newspapers know this is the case. For
example, the Stars Newsroom Policy and Journalistic Standards Guide goes well beyond what the law would
require.
Turning now to the three specific questions identified by the Council:
1. Did the article deal with a matter that is in the public interest?Several of the complainants asserted that, while the issues reported may interest the public, they are not in the
public interest. Rather they are the personal and private affair of Mr. Ford, and not relevant to his public role as
Mayor.
The Stars article was based on a video that appeared to show the Mayor involved in criminal behaviour (allegedly
smoking what appeared to be crack cocaine).
The Council believes the matters described in the article are in the public interest for the following reasons:
The Mayor is a senior public servant in a very important elected position. In that capacity he is appropriately
subject to a greater level of scrutiny than if he was a private citizen. It is, therefore, in the public interest for media
to report on his behaviour where that behaviour appears to be illegal and inappropriate, could impair the carrying
out of duties, and involves alleged activity he himself has condemned.
2. Were adequate efforts made to verify the allegations before publishing them?The question here is whether the Toronto Star was sufficiently diligent in its efforts to verify the allegations. The
complainants concern was that the story relied on a video that has only been seen by the reporters, has not been
produced, and may either not exist or have been doctored or faked. In addition, the identities of the persons who
were said to have produced and to be in possession of the video were not disclosed and their backgrounds or
motives were suspect.
The allegations against Mayor Ford are serious ones and carry the potential for significant injury to his reputation
and career and the reputation of the City over which he presides. The Supreme Court has stated that it is
appropriate to consider the status and reliability of the reporters sources.
The Video: The main evidence supporting the assertions of the Mayors alleged drug use is a video produced by
anonymous sources. The video was shown to the authors of the article on May 3, 2013.
The video is the most important piece of evidence supporting the allegations. The newspapers efforts to establish
its authenticity, therefore, are critical in assessing whether the conclusions reached by the reporters are
reasonable.
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Ontario Press Council Decision October 16, 2013
Matter Regarding: Complaint from Ms. Darylle Donley regarding an article published by The Toronto Star, dated May 17, 2013 entitled Rob
Ford in crack cocaine video scandal
4
In the article, the Star acknowledged that they had no way to verify the authenticity of the video. In the hearing
the Star stated that notwithstanding the general prohibition on paying for news in the Stars policy and journalistic
standards guide, there were extensive discussions at senior levels about whether to pay for the video so that it
could be produced as concrete evidence. Ultimately the decision was made to continue to try to obtain the video
without paying for it. The Council believes this was a reasonable position to take.
The Star took a number of precautions to satisfy itself that the cell phone video was of the Mayor. These included:
the reporters watched and listened to the video three times; they were allowed to pause the video; they asked questions of the men who showed them the video about the circumstances in which the video
was shot;
after watching the video, the reporters separately made written notes of what they had seen and heard; one of the reporters, Ms. Robyn Doolittle, regularly covers City Hall and is familiar with the mayors
mannerisms; the other reporter, Mr. Donovan, heads up the Stars investigative unit and occasionally
covers City Hall;
both reporters studied numerous city-hall-related videos of Mayor Ford; the reporters separately concluded that the man in the video was Ford; with respect to the quality of the video and whether it could have been manufactured, the Star noted the
video was clear and distinct, not blurry or shaky, with the mayors face clearly visible;
the reporters saw the video two weeks before the article was printed and had the time to consult withtechnical experts who advised that it would be very difficult and costly to create a credible, fake video
that could have led the reporters wrongly to believe it was the mayor.
Council is of the view that the Star reporters were thorough in analyzing the video and came to a reasonable
conclusion in deciding that it was a video of Mayor Ford.
Use of Anonymous Sources: The right to use anonymous sources is set out by the Supreme Court in Globe v
Groupe Polygone [2010] SCC 41 and National Post v The Queen [2010] SCC 16 where Justice Binnie stated:
The public also has an interest in being informed about matters of public importance that may only see the
light of day through the cooperation of sources who will not speak except on condition of
confidentiality. The role of investigative journalism has expanded over the years to help fill what has been
described as a democratic deficit in the transparency and accountability of our public institutions. There is
a demonstrated need, as well, to shine the light of public scrutiny on the dark corners of some private
institutions.
At the Council hearing, other examples were given of important news stories in the public interest that relied to a
greater or lesser degree on confidential sources.
Use of confidential sources, however, is not an absolute right. Both the Supreme Court and the Council have
determined that while it may be responsible to rely on confidential sources, the fact that they have been relied
upon should be taken into account in determining the credibility and weight of the allegations that are contained
in a publication. The reason why the newspaper is unwilling or unable to name a source is a relevant consideration.
Ultimately, the question is still whether the investigative reporting as a whole and the evidence gathered by the
reporters justifies reporting on the conclusions they have reached.
In the article, the Star did not name the individual who allegedly filmed the video, nor did it name those who
attempted to sell it and arranged for the reporters to view it. The Star submitted that this was understandable
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Ontario Press Council Decision October 16, 2013
Matter Regarding: Complaint from Ms. Darylle Donley regarding an article published by The Toronto Star, dated May 17, 2013 entitled Rob
Ford in crack cocaine video scandal
5
when the sources of the story were themselves potentially involved in criminal behaviour.4
For the reporters,
senior leadership at the Star, and the newspapers lawyers, this was a reason why the newspaper was not
prepared to move forward without an opportunity to watch the video.
The Council believes the Stars reliance on the video as the primary evidence, the efforts it made to authenticate
its contents and the decision to rely on anonymous sources to support the conclusions reached by the reporters,
are all reasonable and credible in this case. Council does not agree with the position that the story could not bewritten unless the newspaper had the video in its possession or that it could not publish without naming its
sources. Therefore it finds that the Star made adequate efforts to verify the allegations before reporting them.
3. Was Mr. Ford given adequate notice of the allegations and a reasonable opportunity to respond, anddid the newspaper include that response in its reporting?
The requirement to treat fairly the individual who is the subject of investigative reporting includes informing him
of the allegations being made and reporting his response in the article. This was well laid out in Grant v Torstar
[2009] as part of the responsible communications defence in law. While the complaints received by Council did not
express a concern on this matter, the complainants did express the view that the Star had an agenda to denigrate
and demean Mr. Ford and seemed to suggest that the Star did not give enough credence to the Mayors denials.
In describing its efforts to fulfill its responsibility to give Mr. Ford the opportunity to respond, the Star noted that it
had not planned to publish until later, but decided to do so when the Gawker website published an on-line article
at 8:28 p.m. Thursday May 16, 2013. The Gawker story was an account of its editor watching the video of Mayor
Ford the previous week and so the primary allegation in the story the Star was planning to publish was now public.
The Stars attempts to contact Mr. Ford, his staff and lawyer occurred between 9:04 p.m. and 10:30 p.m. the
evening of May 16th
. The Star noted that CNN had already contacted the mayors office for reaction to the video.
The Stars efforts included:
a call to the Mayors chief of staff Mr. Towhey. They stated he would not listen to questions and hung upthe telephone;
calls to the Mayors press secretary that went unanswered; calls to Mr. Fords city hall office as well as his home that went unanswered the calls included messages
asking him to comment on the Gawker story and informing him Star reporters had seen the video; at the
hearing, the Star noted that the Mayor has a policy of not speaking to the Toronto Star, so its calls to him
for comment go unanswered;
visits to Mr. Fords home where knocks to the door and notes left in the mailbox went unanswered; a telephone conversation with Mr. Fords lawyer, Dennis Morris, seeking comments on the Gawker story
posted earlier that evening. Mr. Morris challenged the veracity of the video and its content and called
the allegations false and defamatory.
Early in the article, the Star included the comments from Mr. Morris regarding the Gawker story and reported thatMr. Towhey hung up the phone without answering any questions. The story did not mention the other efforts the
Star made to reach the Mayor. Council believes it would have been wise for the Star to inform their readers of
these additional efforts.
4The concerns of the anonymous individuals is forcefully recognized by Justice Binnie in the National Post case, where he states: "When
investigative reporting strikes at those in power it would not be unexpected that those in power, including the police, may wish to strike back."
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Ontario Press Council Decision October 16, 2013
Matter Regarding: Complaint from Ms. Darylle Donley regarding an article published by The Toronto Star, dated May 17, 2013 entitled Rob
Ford in crack cocaine video scandal
6
Given that the existence of the video had been made public by an on-line organization, Council agrees that the
Stars decision to publish in a timely fashion the results of their more extensive investigation into the matter was
appropriate. Because of the fulsome efforts it made that evening, and the fact that it did obtain and report on
Mayor Fords denial of the allegations through his lawyer, the Council is of the view that the Star did meet the
requirement of good investigative reporting that affords the subject of the story the opportunity to be informed
and respond.
The Council has also considered whether there are other ethical standards that have been violated in this case. The
only other issue raised by the complainants is whether this article, when considered in light of the Stars other
reporting on Mayor Ford, demonstrates an improper motive on the part of the Star that has led it to publish the
allegations here only because of what they saw as a dislike of the Mayor and his policies. This was strongly denied
by Mr. Cooke and there is nothing in the article and the other material before the Council to support this
allegation. No other issues of fairness were raised and the Council did not see any others in its review of the
material and the submissions.
Decision:
For the reasons outlined above, the Council dismisses the complaint in this case
Conclusion:
The Council appreciates both the willingness of concerned citizens to submit their complaints about the Star article
and the attention the Stars most senior officers gave to providing a full and considered response to the
complainants concerns.
The issues raised in this complaint are similar to a related complaint heard on the same day by the Council:
Harrison v Globe and Mail5. These two matters have enabled the Council and others to consider both the
important benefits and the potential risks associated with investigative journalism. The opportunity to address this
issue in a public forum, at no cost to the complainants, is perhaps the best illustration of the reason why those
who established the Council saw it as a means of deepening our collective understanding of the importance of
responsible communication.
The primary issue in these cases is whether an appropriate balance has been struck between the freedom of the
press and the need to safeguard personal reputation and privacy. The complainants primary focus has been on
what they saw as a lack of fairness in the way the newspapers treated their subject. The newspapers saw
themselves as exposing questionable activities on the part of an influential public figure and thereby serving the
public interest.
The Council believes the principles underlying both perspectives are not inconsistent. Ultimately the question is
how to promote and support good journalism that serves the public interest, without losing sight of the commonly
accepted ethical standards that apply to all newspaper reporting. At the heart of those standards is therequirement of fairness.
5Complaint from Ms. Connie Harrison regarding an article published by The Globe and Mail, dated May 25, 2013 entitled Globe Investigation:
The Ford familys history with drug dealing
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Ontario Press Council Decision October 16, 2013
Matter Regarding: Complaint from Ms. Darylle Donley regarding an article published by The Toronto Star, dated May 17, 2013 entitled Rob
Ford in crack cocaine video scandal
7
Council hopes that this and the companion decision of Harrison v. Globe have helped to reaffirm that freedom of
expression and freedom of the press are fundamental principles of Canadian democracy, as are individuals' Charter
rights and expectations of fair treatment by powerful societal institutions.
The complaints have also served as a reminder that the onus is on the press to demonstrate that it does balance
those interests as it seeks to foster full and open discussion on matters of public interest and to do so in a manner
that is transparent to its readers.