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Foreign Correspondent

Being the Ongoing Tales, Triumphs, Struggles (mostly struggles) and Occasional Adventures of Freelance Foreign Correspondent Shawn Gerald Blore, based in Rio de Janeiro

Monday, June 05, 2006

Question Concerning LIbel

While I was preparing my report on diamond smuggling in Guyana, I posted a question to a journalists listserv on the topic of libel. The wide range of reponses were interesting enough, I believe, to merit re-posting here. There is little consensus in the j-world about libel, or about the justifications for going undercover.


I hope none of those who posted to the list feel this violates the rules of the listserv. If any do, please contact me and I will remove your post. I have removed email addresses from the post, so that they don't get their emails added to a spam list by some evil webcrawler.

From: Shawn Gerald Blore

Dear listers,

I have a situation about which I wouldn't mind some advice.

Since moving to Brazil, one of the things I've gotten into investigating is the illegal movement of diamonds. During a recent investigation into diamond exports in the tri-border area of Venezuela, Brazil and Guyana, I discovered that one Brazilian diamond trader was buying diamonds in Venezuela, processing them in Brazil, and then exporting them through Guyana. I discovered this by posing as a potential diamond buyer, going to this man's office, and asking him how his business worked. He freely volunteered all this information about his activities, all of which are illegal.

Now I would like to publish this information. The Canadian NGO for whom I did the research would also like to publish it, but lacking libel insurance they tend to be very conservative when it comes to naming names. They are considering reporting the information, without reporting the diamond trader's name. To me, that takes away from much of the credibility of the report. I am pushing for putting in the trader's name.

To those with more familiarity with libel law, what recourse would this man have in the Canadian courts if we published such a report? (as a related matter, who would have jurisdiction for a report by a Canadian NGO made available on the Internet?)

I did not record the conversation, but did take detailed notes right afterwards. The man in question has been arrested in the past for moving diamonds illegally across borders. While researching in Venezuela, I spoke to people who confirmed what the trader had told me, namely that he was a large buyer of Venezuelan diamonds.

Given that, how solid is the ground on which I am standing?

Thanks in advance

Shawn Gerald Blore

Latin America Correspondent

Radio, Magazines, Newspapers

www.shawnblore.com

sb@shawnblore.com

Tel: 55-21-8102-4706

Skype: shawnblore

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From: Shawn Thompson

Under Canadian libel law, you have lost the "consent" defense against libel by using deceit and not idenitifying the purpose of the interview as for publication. That means that if you were sued for libel in Canada, you would have to prove in court that the trader was acting illegally and your interview with him would not constitute proof.

Not using a name does not necessarily remove the threat of libel, if people still have enough information to identify the man.

Hope that helps.

*********

Shawn Thompson
assistant professor
School of Journalism
CT 160
Thompson Rivers University
P.O. Box 3010
Kamloops, B.C.
Canada V2C 5N3

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From: Judy Waytiuk

Great questions all, Shawn. And what a great story!

Can't answer most of 'em, and I hope others on the list can, because they're all extremely relevant. But I can contribute this small snippet: I do know that in Canada, successful defence against a libel suit requires two things; you must be able to prove that what you wrote was true, and you must supply a convincing argument that publishing that truth was in the public interest. Those were the only two criteria we were required as CBC journalists to be able to fulfill in order to run a dicey (in terms of potential lawsuit) story.

Oh, and more more thing: filing intent to sue is not the same thing as suing. If you file intent to sue (and I believe there is a time limit during which that filing must fall), you must carry through with the suit within a certain time period (I think it's a year, but am not sure) or the suit is considered to have been dropped.

Judy Waytiuk,

Winner: 2002 Pluma de Plata, 2002 TMAC Award

2003 Northern Lights Award, 2003 TIAC Travel Media Award

2001 Travel Manitoba Media Award

Web site: http://www.wordsink.ca

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From: Barry Rueger

In a nutshell Shawn, I'd suggest that rather than querying an e-mail list, you and the NGO should consult with a lawyer who specializes in there areas, both in Canada and South America. You have asked many complex questions, not the least of which include the International and Internet elements of the problem.

I suspect that one of the listers here can direct you to a lawyer skilled in libel law.

Barry

===================================

Barry Rueger

Community-Media.com

http://www.community-media.com

AIM/MSN ID: AppalBarry

Blog: http://www.threesquirrels.com

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From: Rob

Hi Shawn,

I'm a grad student at Carleton University. Basically I

think, you need to be sure that the info you have is

true and that you would be able to establish that in

court.

I would recommend you consult Klaus Pohle (a legal

expert here at Carleton)for Canadian advice.

Best regards,

Rob

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From: Shannon Rupp


Hi Shawn,

The short answer is always that truth is the best defence.

However, you have to prove it. And while you're interview is okay, what you really want is a paper trail. People volunteering info about facts may well just be bullshitting, and should this go to court you need to prove due diligence.

Shipping orders; receipts, anything like that would make you golden.

Libel is civil litigation and the defamation laws vary from place to place. You need to pay attention to the law in the place you publish.

In the British tradition, generally speaking, the tort is actionable where the wrong was done. If you run it in, say, the Globe, Ontario law would apply. In the Van. Sun B.C. defamation law applies. In the Independent, English law. But I don't know anything about the court systems in South America. I'm guessing they're based on the laws of the European country that colonized'em? The rules on who is responsible for proving the truth etc. probably vary widely from British-based law. You need to consult a lawyer where you publish.

The Internet is still a grey area and people have been suing where they think they'll have the best luck, or conversely, where the damage was done, or pragmatically, where they can lay hands on the bastard who did it.

If you can't force someone into to court, you can't sue him. Well, you can, but you can't enforce the court order.

So if you publish something on a Russian website where laws have pretty much gone to hell, it would be tough to sue the publisher. You'd have to bring the action in Russia. And the law there may not be as tough as it is in Brazil. And you could sue in Brazil, however, how do you drag the Russian publisher into court?

See the problem?

There are some other practical considerations. For damages, can the plaintiff prove he has lost something tangible? A sum of money. A job. A reputation, which in turn interfere with his ability to do business. If you're calling him a criminal, and that would open him to criminal charges -- that's a pretty quantifiable damage.

Then there is the simple matter of court costs. You can go bankrupt being right. Libel is a terrific place for someone with deep pockets to engage in vexatious litigation. Generally the rule is: name everyone, but pay attention to the guy with money. So the publisher, who presumably has libel insurance, is on the hook. But you could be liable personally, too. Depends on the jurisdiction and the details. And just how malicious the plaintiff is.

Incidentally, printing a report without naming him could open you to libel suits from other people. Could the description be mistaken for someone else? Perhaps another businessman? There's a famous Canadian case where students accused J-skool profs of sexual harassment in the school paper, but didn't name them for fear of libel. They should have accused the profs of incompetent teaching on media law. Because the profs were a small, identifiable group and no was named, they all became suspect -- they were all libelled. So they sued those kids, successfully.

So the real rule is: always consult a lawyer first. Libel is so tricky that most lawyers won't even touch it. There are a handful of experts in Canada who serve every media outlet and would-be plaintiff.

But here's a question for you: my understanding is that diamond dealers aren't the nicest people in the world. Why does libel scare you more than, oh, say, knee-capping?

Just sayin'.

Good story, though. Bon chance.

Shannon

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From: Shawn Gerald Blore

It's a good point Barry, and I will suggest it to my editors as the next step. I was checking what kind of knowledge base was out there.

Cheers

SB

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From: Barry Rueger

Hi Shawn,

Having once been on the receiving end of a groundless but very expensive suit, I tend to be a lot more careful!

Remember that being right doesn't matter if you can't afford 50-100K to fight the suit.

Barry

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From: Shawn Gerald Blore:

Hi Barry,

Which is a very good point. However, I also tend to think on the lines of 'how likely is someone to sue'. Someone located in Brazil, engaged in illegally trading diamonds, with a prior arrest record, is I would be prepared to gamble, not going to want to call attention to himself and his activities through a lawsuit, particularly one that would likely have to be fought in a faraway place like Canada.

But then it's the Clint Eastwood question: Did I use 5 bullets or six? Do you feel lucky?

Cheers

SB

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From: Sylvia McBean

I suggest you talk to your insurance agent. If your NGO won't cover you then maybe you shouldn't be writing for them.--Sylvia

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Shawn Gerald Blore wrote:

Never said they wouldn't cover me. I don't think I implied that anywhere in my post, but if I did then I correct it here.

That said, it's a complicated issue, and I thought I would poll the list to see what kind of knowledge base there is out there. As many helpful respondents have pointed out, we're journalists, not lawyers. So it's on to step 2.....

Best

SB

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From: Ross Crockford

Hey Shawn,

Greetings from Victoria! I've been enjoying your work for the Globe,

Toro, and CBC, and I'm very interested in seeing your diamond- smuggling story. Being a former lawyer, I felt I should weigh in on

the question you posted to the CAJ list. What everyone has said is

essentially correct: the fundamental defence against libel is TRUTH.

A tape recording is the best proof that the smuggler said what he

did, but if you can show a judge that you are a professional

journalist and produce handwritten notes you made immediately after

the interview, that's almost as good.

So if you ended up in a Canadian court, you'd probably win. But

lawsuits are as much about money as they are about finding fault.

With enough cash, even a crazy person can find a lawyer who will take

their case, sue for libel, and then grind their opposition through

expensive proceedings -- without any intention of ever actually

taking the matter to trial. That's always the risk writing about

anyone who's wealthy. Although I would think that with a diamond

smuggler, the greater worry is that he'd want to do physical harm.

Hope

all is well with you.

Ross

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From: Charles Bury
Subject: Re: Question concerning libel

News about smuggling is definitely in the public interest, so I don't think you have a legal problem as long as the information is correct.

But you definitely have a moral problem: "I discovered this by posing as a potential diamond buyer". So the first thing you said to this guy was a big lie. Some investigation that was. Any place I've ever worked you'd get fired.

As for your tax-exempt buddies, I always wondered if there were supermarket tabloid NGOs.

Pretty tacky. Ethics, eh?

Charles Bury

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From: Eric Geringas

Charles, how about you get off your high horse. Maybe the Sherbrooke Record doesn't do

undercover journalism, but plenty of other respectable media do. Just in the last few

years, a BBC reporter joined a police force undercover to investigate institutional

racism, the Spokane Record found out the city's mayor trolling the internet for

sex with minors, the Toronto Star (and the CAJ's own Rob Cribb) infiltrated telemarketing

boiler rooms, the fifth estate found lax security practices at airports, etc., etc.

Tacky? Tacky is attacking another journalist without knowing the first thing about the

story or the work it took to get it.

Eric Geringas

Who thinks CAJ directors should be careful when talking about ethics these days

Toronto

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From: Shawn Gerald Blore
Subject: Re: Question concerning libel

That's certainly your call Charles. I don't know your experience investigating South American smuggling rings, but certainly in mine walking in the door with smile and a tape recorder and saying "Hi, I'm a journalist. Please tell all about the various ways in which you are breaking the law" just doesn't yield much in the way of information (though it is a good way to put yourself in physical danger).

So all told, I'm glad I never worked for you. As for your pissant crack about supermarket tabloids, clearly you've got some bee up your behind about NGOs, but what it is I really don't care.

Best

From: "Parent, Jean-Francois"

Please folks,

Let us not let this thread get outta hand.

You're on par as far as adjectivity goes, and I'd like it to remain thus.

Thank you

Jean-Fran├žois

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From: "Erica Johnson"

Subject: Re: Question concerning libel

Yes of course...ideally, journalism should be conducted in the open. But sometimes misrepresentation is necessary to tell an important story that's in the public interest. According to the CBC's policy handbook, clandestine methods of fact gathering may be used if the activities being investigated "concern illegal, anti-social or fraudulent activities or clear and significant abuses of public trust."

I'm no lawyer, but I'd say Shawn's investigation hits a number of these qualifiers.

Erica

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From: "Dunphy, Bill"

Temper lads, temper.

Certainly both the tone of Charles off the cuff (and off the handle) remarks are both uncalled for and unhelpful. But by the same token there is an ethical issue underlying his concerns that merits some discussion.

Which is not to say that Shawn's choices were bad or unethical - I don't think any of us know enough to make an informed judgement on that. (And as Eric rightly pointed out, rushes to judgement have proved expensive in the past).

Still.

Here's what the CAJ guidelines have to say:

Reporters will not conceal their identities, except in rare cases. When, on rare occasions, a reporter needs to go "under cover" in the public interest, we will clearly explain the extent of the deception to the reader or listener or viewer. We will not commit illegal or improper acts.

Seems Shawn likely has a strong prima facie case that his decision to "pose as a diamond buyer" falls within the CAJ guidelines, so I'm not sure why it warranted the reflexive reaction it seems to have.

What I find interesting here is whether anyone has any clear rules (personal or corporate) for when it is okay to employ deception to gather information for a story.... I suspect they are all as general as the CAJ's.

Jan Wong posed as a desperate, newly single mother of two for her rather fun and informative series on minimum wage work running on Saturdays in the Globe. She decieved her landlord, several prospective empoyers and one actual employer, her co-workers and her clients. What's "rare" about crappy minimum wage jobs in our economy?

Nothing.

Should she be sensured by the CAJ Was she justified? I think quite easily in that the public good is advanced to some degree and I'd judge that small advance to be greater than the harm caused by her actions.

But could you not argue that while she's playing at being poor that apt. and that job aren't going to people who truly need them? Sure, but I doubt that really amounts to any great harm - there are more crappy jobs than people to fill them, ditto substandard housing.

Bill Dunphy

(as a personal aside I too infiltrated a scam charity boiler room for an investigative piece at the Sun back in 1992 going so far as to build up a fake resume with real reference ready to lie for me. In two days of working the phones I cheated people out of well over $1,000. I well remember the frantic calls I had to make to all those donors the next day, confessing that I wasn't Robert Johnston but was really Bill Dunphy a reporter investigating the 'charity'. Ethical? Maybe - we did try to mitigate the potential harm and we did shut the damn thing down and get them hauled into court. Still, there's an argument there.)

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From: Shawn Gerald Blore
Subject: RE: Question concerning libel

A discussion was not what Charles was trying to start, clearly, but Bill is right in saying it's a topic worthy of debate. Not that I feel I need particularly to justify what I've done, but here's the Greater Public Good behind researching diamond smuggling (excerpted from my about to be released report)

"Conflict diamonds are diamonds used by rebel armies to finance war. Diamond-fuelled wars in Sierra Leone, Angola, the Democratic Republic of the Congo, Liberia and elsewhere, have taken the lives of hundreds of thousands of people over the past fifteen years. The Kimberley Process began in 2000 in an effort to halt the trade in conflict diamonds."

Now the main problem with conflict diamonds is in Africa, but the Kimberley process will only work if all nations worldwide adhere. Hence my investigations in South America.

In Brazil, during an earlier investigation, I discovered that one trader who had previously been deeply involved in conflict diamonds during the civil war in Sierra Leone had subsequently moved to Brazil and resumed illegally exporting diamonds. Many of these diamonds came from an Indian reserve in the Amazon, where the conflict between miners and Indians lead to a brutal massacre of 29 people (miners all, and proof that conflict diamonds aren't limited to Africa).

In his case, I was able to prove using government documents that I ferreted out that the trader had made one fully fraudulent export worth about US$3 million. The documents showed the trader had set up a phoney mineral claim that he used on export documents as the purported legal source of the exported diamonds. I was later able to prove - again using government documents - that approximately 25% of Brazilian diamond exports came from similar phoney claims. Well and good, the police investigated and it looks like this guy is going to jail. That investigation was possible because the trader was working within a single country, with a paper trail that, while phoney, could be followed.

In Guyana (the investigation to which I alluded when I polled the list for libel advice - naively, as many pointed out) I discovered a Brazilian diamond trader that had been arrested several years ago and thrown out of Guyana was still managing to carry on with his business thanks to lax border controls. People in the diamond fields were telling me this guy was a heavy buyer of Guyana diamonds, perhaps the heaviest. Through contacts in Georgetown, I also learned this man's office was in a Brazilian city on the Guyana border. So, he's been arrested once for trafficking in diamonds, he's still buying, he's located in Brazil, and authorities have no current record of his activities or how his business works. Sounds to me like he's smuggling. And given that his business is wholly illegal, going through government documents is going to yield zip.

The only way I could think to confirm that was to arrange to go talk to him, and find some way to get him to talk about his business. Frankly, the thought of marching into his (walled, heavily guarded) compound with a smile and a "hi, I'm a journalist" simply never crossed my mind. Had it, I would have had my head examined. I got in, instead, with a story about being a diamond buyer, and engaging the trader in conversation found out he was buying his diamonds in Guyana, bringing them across the border to Brazil for grading and sorting, and then shipping them back across the border for export. Two illegal border crossings. He was also buying diamonds in Venezuela and shipping them out through Guyana, with phoney Guyanese papers - in violation of Venezuelan, Brazilian, and Guyanese law, and an international treaty signed by 40 nations, including Canada.

Confirming - for me - that this wasn't all blather, the guy pulled out a 5kg grocery sack of diamonds and spread it out on the table for me to see. That's 25,000 carats, for those who don't know - somewhere in the neighbourhood of US$3-US$5 million. One hell of a lot of compressed carbon all in one place.

Do I have any regrets about what I did - yes, I wish I'd had a hidden camera.

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"Judith Ince"
Subject: RE: Question concerning libel
Date: Tue, 18 Apr 2006 11:42:48 -0700
Looks like you are doing terrific work, Shawn, and the NGO you are working

for is lucky to have you; but on your next job, perhaps they could spring

for a mini-disc recorder or a hidden camera...

All the best,

Judith

Vancouver

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From: Marshall Jones

So what you are saying, Bill, is that the end justifies the means?

I don't have a solid take on this. I have never posed as anything but

a reporter (hee hee), but the earlier stated concerns by Charles are

valid, if not over-stated, because 'posing' cheapens what we do and

should be done seldomly.

If I was covering courts and some judge decided to bastardize the law

because the end justified the means I would scream from the hilltops.

If some bureaucrat shoved some documents in the shredder because he

felt the end justified the means, well... you see my point. One man's

justification is another man's lie.

I'm glad Charles raised the topic on this otherwise boring board.

Jan Wong's walk on the poor side, for example, was a cheap stunt that

offers nothing that couldn't have been obtained with interviews from

real people who don't have a good job to return to.

And we wonder why people trust us only slightly more than lawyers.

Marshall Jones

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From: Michael Cottingham

I just can't believe what I just read. I have bitten my tongue on this

list a few times, ignoring ignorant comments and, instead, trying to be

supportive where I can and offering positive, constructive comments

where I think they might help. And I have benefited tremendously from

the supportive guidance I have received, for which I am immensely

grateful. This list tends to be both respectful and professional, with

only a few exceptions dealing specifically with divisive issues. I

guess that's why I am shocked at Charles' comments which have,

naturally, generated expressions of displeasure and disdain.



A fellow journalist has asked for help with a difficult issue and what

he received from one person's response would be almost enough to

discourage one from using this list again. We are each ambassadors to

this list as well as to our fine profession and I am deeply concerned

of the affect it has when one of us turns on another with little more

reason than blind arrogance. I can barely justify turning on another

even to counter such arrogance.



As an investigative journalist, I have had to misrepresent myself to

gain access to worlds where, if my intentions were known I'd be lucky

to have my fingers, let alone my life, just to get a small piece of a

bigger puzzle. Going undercover and deceiving a source is never

entered into lightly, especially when the source would rather keep

their world out of the limelight at all costs. I doubt Shawn or anyone

else on this list would deceive a source as a matter of convenience, so

the lecture in that area was not necessary. And the cheap shot at

NGO's as "tax-exempt buddies" really leaves me shaking my head in

disbelief. What-up, bud - what NGO urinated in your bedtime snack?

Shawn, I have to commend you on your courage to tackle such a

dangerous, difficult and complicated issue. There are many affected by

the trade in illegal gems, including the harvester and the end

consumer, both of whom are quite often in the dark regarding the

business in between the source and the demand. This situation shows me

how little I actually know about certain aspects of libel - I didn't

even know there was such a thing as libel insurance. I guess it's to

us what malpractice insurance is to doctors. I've been fortunate to be

buffered from this by my publisher who has backed me up so far.

I wonder if it would be possible to shop this story out to a larger

publication and fall under their coverage? Certainly the story has

legs enough to make it into larger, more mainstream publications with

deeper pockets. Of course, I would want to make sure they will back

you if push comes to law suit.



As well, I think I would avoid any thoughts of self-publishing this and

only have it published my someone with the confidence and resources

necessary to see the story all the way through its natural lifecycle.



I hope this helps or at least offers you some encouragement to continue

trying to help your story see the light of day. And if there's

anything I can do to help on our side of the border, you know how to

get a hold of me.



Regards to all,



Mike Cottingham

Scribbler with a conscience, in the Capital


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From: Charles Bury wrote:

News about smuggling is definitely in the public interest,

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From: "Jennifer Fowler"
Subject: Re: Question concerning libel

Shawn,

As others have pointed out, best to consult a lawyer for your questions

re. libel law. However I can say that the question of which court has

jurisdiction when something is published on the internet still seems to

be up for interpretation.

The CAJ intervened recently in a case where someone was suing the

Washington Post for an alleged libel that happened 10 years ago and

wanted to do it in Ontario because the story in question had been

published on-line and was therefore, albeit briefly, available to

readers in Ontairo. A lower court agreed that Ontario was an

appropriate jurisdiction for the suit and that the Washington Post

should be prepared to defend itself anywhere in the world, but the

Appeal Court decided no - Ontario was not the appropriate jurisdiction

because hearing the case could lead to Ontario media having to defend

themselves anywhere in the world.

Your question was regarding a Canadian publication available on-line,

which is something different, but there are probably still no hard and

fast rules as to jurisdiction.

Your story sounds fascinating.

Jennifer

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