Blocking Papers

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With a signed affidavit and an agreeable judge, anyone can silence the media

Until shortly before showtime on October 8, 1991, producers of CBC’s the 5th Estate believed they lived in a society that, above all else, upheld the freedom of the press. They were wrong.

At 5 p.m., an Ontario provincial court judge granted an injunction preventing the 5th estate from broadcasting that night’s program, “Evil’s Fortune,” a documentary investigating the whereabouts of millions of dollars allegedly stashed away by deposed Romanian dictator Nicolae Ceausescu. It didn’t matter that the story was major news worldwide or that it involved more than 200 interviews in at least a dozen countries on three continents. It didn’t matter that the 5 th estate would have to fill the hole with a year-old rerun. Most of all, it didn’t matter that the press had been robbed of its right to inform the public. Mr. Justice Abraham Mandel ordered that the program would not be seen until a decision could be reached on the claim of “breach of contract” that had surfaced that day from one of the documentary’s subjects.

Robert Lindquist, a forensic accountant who’d been involved in the search for the dictator’s fortune, charged that the 5th estate had reneged on a verbal off-the-record deal. The claim had been prompted and cosigned by the firm for which Lindquist had worked at the time of the search, Peat Marwick Thorne. After reading a TV -listings review of “Evil’s Fortune” on October 7, a senior official of the company apparently became alarmed that its former employee had revealed certain client confidences. Peat Marwick demanded to preview the program, as (suddenly) did Lindquist. When the CBC refused, they sought-and found-recourse in the courts.

Injunctions restrain. By definition, they prohibit, prevent, stop or delay a person from a specified act. Applied to the media, that act can be words, ideas or pictures. When an injunction is placed on a newspaper or magazine story, or a television program, it is working as the first stage in a legal action (though not all legal actions involve injunctions). So, in the case of the 5th estate, the 22-day “interlocutory,” or temporary, injunction that Judge Mandal placed on “Evil’s Fortune” was the first step in a breach of contract suit against CBC. Lindquist and Peat Marwick argued that if. the show aired before a proper trial could be held to settle the suit, the supposed off-the-record information would be public knowledge and, therefore, damaging to themselves and potentially to their clients.

CBC never dreamed that the justice system would accept that argument. First of all, says Susan Teskey, producer of the 5th estate, their claim that she had given Lindquist veto rights over the interview was preposterous. “They never asked to see the interview, but if they had, I would have refused. That’s absolutely nonnegotiable.” Second, even if the judge couldn’t immediately decide whether a contract had been breached, surely the press’s constitutional right to freedom of expression would carry more legal weight than an individual’s.

It didn’t. When the injunction was granted, Teskey and her team were shocked and angry. “It’s like someone holding their hand over your mouth saying, ‘we’re not letting anyone hear that,'” she explains, frustrated and angry that this should happen in a so-called democracy. “An injunction is really censorship. I think in a society that believes in freedom of the press and freedom of speech, it has virtually no role except in the .”
most extreme circumstances.

Injunctions against the press don’t happen every day, but they happen frequently enough to create a climate that 5th estate host Linden MacIntyre describes as “a constant drumbeat of preemptive criticism.” The fact that they can be used at all, by anyone who wishes to thwart the public’s right to know, has frightening .implications. But equally disturbing is the mechanism by which injunctions are sought, fought and then granted because it too makes a mockery of the democratic process. In Canada, a judge’s decision to allow an injunction is usually based on the testimony in affidavits presented at a hearing by the lawyers representing the plaintiff and defendant. No witnesses appear on behalf of either party to support or challenge allegations or to be cross examined. How much less persuasive is a lawyer arguing on paper? How can a judge clarify conflicts between claims and defence? What safeguards exist against undue influence or outright lies?

Going from bad to worse, injunctions may be granted ex parte-literally, without the other party’s knowledge or presence. In other words, a judge makes a decision not just based on mere pieces of paper, but also on only one side of the story. Fortunately, according to Toronto media lawyer Brian Rogers, “such injunctions are very rare, permitted only in unusual circumstances, where the defendant simply can’t be notified and the matter is highly urgent.”

Although the 5th estate was represented at the injunction hearing on Tuesday, October 8, CBC lawyer Peter Southey says the order might as well have been ex parte for all the time they were given to prepare their case. They didn’t even see the claims in the affidavits prepared by Lindquist and Peat Marwick until they arrived at the hearing. In effect, Southey says, “we wrote our affidavits blind.”

Would freedom of the press have been upheld if the CBC had had the chance to make a better case? Possibly, but it would have been a tough sell. As the law sees it, breach of contract or confidence, or misuse of confidential information all amount to a breach of legal obligation-or alleged obligation. And those relationships, says Rogers’s partner, Burt Bruser, “are something the law seeks to preserve and encourage. You make a promise, you keep it.” Certainly, the courts won’t condone obtaining information in ways that are unlawful. So if someone comes claiming a confidentiality has been breached, explains Bruser, “a judge is going to look at that obligation and weigh it in the balance.”

Where the media stand more of a chance, says Rogers, is in situations where the socalled contract or breach is less clear. Then, “showing that there’s a real public interest in publishing the information becomes a very important defence. In that kind of murky situation, I’d argue strenuously that the court keep its hands off.”

But ultimately the decision rests on the inclinations of the presiding judge. And as far as Judge Mandel was concerned, says the 5th estate’s MacIntyre, the argument was never about freedom of speech. “The issue was just a television program.”
At the end of the 22-day period, the next presiding judge, Madame Justice Karen Weiler, lifted the injunction, finding there was no confidential information in “Evil’s Fortune” that could cause damage if made public. The CBC aired the program unaltered in November. Interestingly, neither Lindquist nor Peat Marwick has bothered to pursue the action.
Meanwhile, the CBC has paid in loss of faith, time and newsworthiness. When the program finally ran, one of the key interviewees in the documentary, General Victor Staneculescu, was no longer the prominent figure in the Romanian government that he had been a month earlier. No doubt a further delay would have rendered other important interviews irrelevant.

Can the media protect themselves against injunctions ? Partly, by understanding what constitutes legitimate grounds for getting them. Breach of a legal obligation is one reason, and that type of injunction is relatively easy to get. Libel is another, and that type is much harder to get. “What most media people don’t understand is that there’s a distinction between the two,” says Burt Bruser. “If it’s simply a libel injunction, the law is very reluctant to interfere with freedom of the press. It doesn’t regard itself as having, at that stage, to discourage the publishing of information on the grounds that it simply might be libelous.” What the judge needs to know is whether there is a defendant who is willing to defend his or her action, and if so, stresses Bruser, “there won’t be a libel Injunction.” If the information is defamatory, that should be determined after it’s been made public.

However, as history shows, the system can be abused and judges have made mistakes. A case in point is the libel injunction that was sought and granted against The Toronto Star in 1985. In an entertainment column for the Saturday edition, Douglas Marshall criticized Garth Drabinsky’s company, Cineplex Odeon Corporation, for its new policy of running commercials before the feature film. As a moviegoer, Marshall expressed annoyance at having to pay for advertisements he had no desire to see. His column, his opinion. Only Garth Drabinsky didn’t see it quite so simply. Not that he should have seen it when he did, before publication. But somehow someone messed up, and Drabinsky got hold of one of the 800,000 copies the Star preprints for its massive Saturday edition.

The notice announcing intention to sue for libel arrived late Friday afternoon. Neither Marshall nor the Star responded, considering it absurd to be sued for something that hadn’t yet been published. But what the notice didn’t tell them was that at that very moment Drabinsky’s lawyer was presenting his case to a judge (who had little experience with libel injunctions), claiming irreparable harm to Cineplex if the column went public. Since the Star was not there to say it would defend its action (and the responsibility of informing the defendant lies with the plaintiffs lawyer), that judge granted an ex parte libel injunction. Less than an hour later, the Star was ordered to pull the column.

The order caused pandemonium at the Star. How was it supposed to comply when, as Marshall puts it, “the preprints were all over hell’s half acre? It’s impossible without killing the whole paper.” But the Star’s lawyers knew that the injunction had been granted on shaky grounds, that the judge should have known better than to grant the injunction, especially when the Star was just a phone call away. At 11:04 p.m., they got it overturned by a second judge who was dumbfounded by the plaintiffs failure to notify the Star. “Quite apart from the principle issue that the defamatory material is defensible and the publisher is willing to defend it,” says Rogers, “there are factual things that can be important [at a libel injunction hearing]. And only if the publisher’s there, can they be dealt with.” The facts, in this case, would have revealed the practical and financial nightmare of pulling a column out of a newspaper section printed and primed for distribution province-wide.

Nightmare is an apt way to describe the whole experience, but Bruser thinks it is extremely unlikely to occur again. He reiterates that when it comes to libel injunctions and the media, the law is on their side. “I do not worry about injunctions based on libel,” he says. “I worry about injunctions based on breach of confidence and misuse of confidential information. I don’t think that message has gotten through to the media.”

Okay, so maybe we’ve been worrying about the wrong thing. But how do you anticipate breach of confidence injunctions when you’re in the business of getting information however you can? “I don think the media can let the affect what they do,” says Bruser. “Once they get the informtion, then they should won about how they’re going to use it.” In other words, he an Rogers suggest, you could protect yourself by treating condential information as a levy to get less litigious on-the record material from other sources. Or if you plan to use potentially sensitive stuff don’t trumpet your editorial secrets around town.

But is it fair that writer editors and producers should work under that kind of shadow? The truth is that injunctions are a form of price restraint-they stop the media from doing their job. To date there are no media groups lobbying to change that injustice by challenging the ways in which injunctions are granted and the reasons why. Must w wait for the next voice to be silenced before we do?