Fifth Estate film found at fault for unfounded facts and false impressions

Simon Chester is a partner at the Toronto law firm of McMillan Binch and a member of the firm’s KNOWlaw Group. This article was prepared with the assistance of Marlo Kravetsky

If you thought that headline was a mouthful, try swallowing a damages award of $950,000 and a costs award over $800,000 as the CBC had to in the libel lawsuit brought by Dr. Frans Leenan.

After winning his case in Ontario’s Superior Court, Dr. Leenen said, ‘Four years ago we proposed to settle this law suit for $10,000 and an on-air apology. It was refused…The Fifth Estate persisted and took me through 10 weeks of trial.’

The trial judge awarded very high damages for libel against The Fifth Estate and the CBC as well as individual reporters and producers. The CBC appealed. Ontario’s Court of Appeal disagreed with the CBC, and ruled that Dr. Leenen had been libelled. Finally, the CBC tried to take the case to Canada’s highest court, the Supreme Court of Canada.

The Supreme Court ruled against the CBC in February, with yet another costs award. Dr. Leenen’s long legal journey is over. The case should be a lesson for documentary producers and journalists everywhere.

What went wrong?

The story began benignly. One day Dr. Leenen was called by The Fifth Estate, wanting an interview on his scientific research into drugs known as CCBs (Calcium Channel Blockers). Dr. Leenen was an obvious choice to profile. He had published widely, chaired an advisory committee on the drug, and was director of the Hypertension Unit at the world-renowned Ottawa Heart Institute.

He gave a fairly lengthy interview, but he was horrified when editing spun his interview, showing him as a staunch defender of the drug and as a bumbling fool. What Dr. Leenen did not know was the producer’s angle of building a ‘good guys/bad guys’ story. Dr. Leenen had been cast as enemy number one.

Dr. Leenen said that, ‘as a scientist and a physician, having your personal and professional integrity called into question is tantamount to a professional death sentence.’ He sued the CBC. The court characterized the impact of the show on Dr. Leenen as devastating. According to the court, he had been accused of views he did not hold, and ‘convicted and sentenced’ by the CBC.

Documentary makers know they must walk a fine line between truth and telling a story in a captivating way. Libel suits are nothing new for the news business.

What sets this case apart is the fact that the show said nothing about Dr. Leenen that was untrue as such. The falsity came on the cutting floor. Using short sound bites, music, a reporter’s facial expressions, and leaving out key facts, the doctor’s scientific views on the medication were twisted. Viewers would have seen him as a villain. At best, he was operating in a conflict of interest; at worst, he may have been negligent.

The words were fine; the story was not. Producers have always known that playing with facts could land them in hot water. What this case warns is that editing, music, camera angles and lighting – casting doubt on truth – can also land you with a million-dollar lawsuit.

More problems

The Fifth Estate story was about the safety of CCBs as heart medications. It argued that an approved drug was dangerous and that some doctors were covering up the facts for personal gain.

The independent producer had long been a harsh critic of Health Canada and the drug industry. The court found that he had a case to make and an axe to grind. The program presented Dr. Leenen as a defender of all CCB drugs, which he was not. The show raised the subject of kickback schemes after the doctor wrote a mild advisory letter to doctors on CCB and then took a trip down the Nile, courtesy of drug company, Pfizer. It was a devastating innuendo. It hinted that he supported the prescribing of killer drugs, that he was in a conflict of interest, was getting paid off by a drug company and that he was negligent or dishonest in serving as chair of a medical advisory committee. None of which were true in fact.

What is defamation?

A defamatory statement is a false statement that has a tendency to injure the reputation of the person to whom it refers because, it causes that person to be regarded with feelings of hatred, contempt, ridicule, dislike or disesteem by individuals in the community.

A broadcast statement may be defamatory either through its natural and ordinary meaning, or through innuendo. A false innuendo operates in the same manner as an un-truth except that it is evaluated by looking at the documentary as a whole, to determine if factual misrepresentations are being made.

So innuendo is the key to The Fifth Estate’s liability.

It used sound bites of the Dr. Leenen interview out of context. The editing suggested he supported prescribing CCBs in the face of research about their dangers. By cutting statements clarifying his views on the medication, the producers made it seem that Dr. Leenen did not care that using the drug might harm his patients. The Nile trip was not a freebie from a grateful drug company. He was to deliver three speeches at an Egyptian medical conference, planned long before the drug issues came up.

Ten steps to guard

against liability

Documentary makers know they have three defences in a libel suit. The story is:

* True

* Fair comment on a matter of public interest, or

* Protected by qualified privilege if the statement is made in the public interest in good faith and without malice.

Facts are always sacred. But the courts in the Leenan case suggest that broadcasters should take 10 extra steps to minimize the risk of liability:

1. How serious is the allegation? The more serious the charge, the more the public is misinformed and the individual harmed if the allegation is not true. If the charge is serious – be sure of the facts and certain you can back them up.

2. Is it in the public interest? The nature of the information and the extent to which the issue is of public importance is critical. The more the information is in the public interest, the more protected from liability the producer will be.

3. How strong are your sources? Some informants have no direct knowledge, some have their own axes to grind and some are being paid for these stories. Figure out what is driving each informant. Is he or she is reliable? Will they back you up if it comes to the crunch?

4. Are you sure you are right? Has the information been fact-checked? Are the sources trustworthy and reliable?

5. How sensitive is the victim? Remember that some figures have much thicker skins than others. Politicians expect to be criticized – but remember Brian Mulroney. Professionals (like Dr. Leenen) care a great deal about their reputation.

6. Has there been an official investigation? The allegation may have already been the subject of a thorough investigation. To omit that from the broadcast may leave a false impression with viewers.

7. How hot a story is it? How important is it to communicate the information as quickly as possible?

8. Is there another side? Comments made that are unduly detrimental to one side should be addressed with that side and included in the broadcast.

9. Is the tone too edgy? Did the newspaper or broadcast call for an investigation or raise questions, or did it adopt allegations as statements of fact?

10. Do you have an axe to grind? If, in the course of advancing an argument to the public, the journalists and producers deliberately omit information contrary to that thesis, the producers and journalists cannot argue the truth of the facts, since the broadcast will have conveyed an untruthful idea. This is called ‘malice,’ and can compound the monetary damages that a court can award.

The role of the producer

The court stresses the importance of the producer’s role in the creation and ultimate broadcast of a documentary. The producer is responsible to the public and to the individuals featured in the documentary and must ensure the truth of the factual content.

The court suggests that documentary producers:

* Remember their power and influence moulding public opinion.

* Separate the functions of reporter and editor. Ensure the editor confirms accuracy before publication.

* Make sure the editor looks over the reporter’s shoulder.

* Take great care.

The judges criticized the executive producer’s failure by those standards. No one had properly monitored the creator of the piece. Had someone looked into his past, his slant would have been obvious. With care, the documentary could have avoided the problems – and still carried a message.

Are documentaries dead?

Far from it. It means being careful about facts. As a producer, it’s your job to ensure that the factual elements of the documentary are in fact true. If you need to get errors and omissions insurance for your production, verifying the facts is an inescapable part of getting coverage. You must also ensure that all the elements that make up the piece do in fact ring true. There is lots of room for commentary, criticism, and opinion, as long as it rests on solid factual background.

The Leenen case was an expensive mistake for the CBC and for others involved in the production. We can all learn from it.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice in any particular situation.)