CBC coverage of publication on the internet of sexually explicit photos of a Manitoba judge
I am writing with regard to your complaint September 2, 2010, and request October 10, 2010, for a review by the Office of the Ombudsman concerning the CBC Radio, Television and CBC.ca coverage August 31, 2010, of the matter relating to Associate Chief Justice Lori Douglas of the Manitoba Court of Queen's Bench (Family Division).
Your complaint concerned the broadcast and publication of a story about separate but related actions filed with the Canadian Judicial Council and the Law Society of Manitoba. The judicial council matter involved the conduct of Douglas as a result of the publication on the Internet of sexually explicit photos of her. The law society matter involved the conduct of Douglas's husband, Winnipeg lawyer Jack King.
Both actions were filed by Alexander Chapman, a former client of King. Chapman alleged that King pressed him in 2003 to have sexual relations with Douglas and showed him sexually explicit photos of her when Douglas and King were lawyers in the same Winnipeg firm. Explicit photos of Douglas were posted by King to a website. In 2005, Douglas was appointed to the bench and in 2009 was appointed associate chief justice of the Manitoba Court of Queen's Bench (family division). King quit the firm in 2003 and is practicing at another firm.
The story's headline online read: “Nude photos of judge contained in complaint.” Its text began: “Naked photographs of a senior Manitoba judge engaged in bondage are part of a man's complaints to legal watchdogs about the judge's past and that of her husband, CBC News has learned.”
A significant element of the CBC report was its focus on the possible implications for Douglas and the judicial system due to the accessibility of the photos online. In the CBC report, academic and legal authorities suggested Douglas might not have been appointed had officials known the photos were online. One asserted the court's image was diminished by their presence. Another indicated that Douglas should have declared her knowledge of the pictures when applying for the bench position.
In the CBC story, King's lawyer said that Douglas was unaware of the existence of nude photos of her online — that King, under some personal duress, had published them without Douglas's knowledge. But one law professor went so far as to say that, even if she were unaware, the presence of the photos raised issues about her ability to perform as a judge.
A related online article on the case discussed CBC News' decision-making in this instance and was produced by CBC's managing editor in Manitoba, Cecil Rosner. He indicated that CBC canvassed more than a dozen experts — former justices, law professors who teach ethics and instruct judges, and experts on journalism ethics — and that all believed (without knowing the principals) there was a public-minded duty to inquire and pursue the story. They asserted the importance of accountability on how a judge could have been appointed in those circumstances.
Your complaint asserted the story was “disgusting, despicable, degrading.” You argued that it re-victimized “a woman who has done nothing wrong.” Your complaint challenged one of the central premises of the story — that Douglas's ability to perform her judicial duties could be compromised because of the presence of the photos online. In general you argued that the story didn't meet basic journalistic standards.
In correspondence with CBC News, you compared the publication of the story to activities in the 1940s and 1950s in the United States to destroy the reputations of public servants by insinuating sexual perversion. This led to the expulsion of thousands of homosexuals from government and military duty as part of the wave of so-called McCarthyism to root out what was considered by proponents to be “un-American” behaviour.
In correspondence with you, CBC News executive editor Esther Enkin wrote that the story “hews to a fundamental part of our democracy: the credibility and respect we hold for our judicial system. The issues it raises are very clearly in the public interest with profound implications for Manitoba and the country. It is the CBC's responsibility — as it is the responsibility of any respectable news organization — to seek out important truths that will serve the public interest.”
When the story was published, the CBC's managing editor in Manitoba, Cecil Rosner, wrote on CBC.ca that the story had “important implications for the public.” Among other things, Rosner said the story dealt with a lawyer's duty to a client, the duty of legal professionals to report matters of concern to relevant professional associations, the duty of a potential judge to disclose pertinent matters in advance of selection, and the responsibilities of judicial selection committees as they make their choices.
Rosner acknowledged that the story was going to have an impact on the public image of individuals, but that “the possibility of harm had to be weighed carefully against the need for us to share facts with the public.” In particular, he noted that the explicit photographs were withheld from publication by CBC News, which has “judged the harm that publishing them . . . far outweighs the public need to see.” Potentially the report raised public policy questions on judicial propriety, solicitor-client ethics, public conduct and journalism's techniques. Specifically, though, my review has to assess whether CBC News violated its Journalistic Standards and Practices in publishing the information.
CBC's journalism involves five central principles, summarized as:
- Accuracy: to “seek out the truth in all matters of public interest.”
- Fairness: to treat individuals “with openness and respect” and in an even-handed way.
- Balance: to reflect a “diversity of opinion.”
- Impartiality: to provide “professional judgment based on facts and expertise.”
- Integrity: to avoid real or perceived conflicts of interest.
On questions of privacy, it is worth noting that CBC's journalism guidelines read:
“In situations involving personal suffering and pain, we balance the public's right to know against individual human dignity. We disclose information of a private nature only when the subject matter is of public interest.
“Without limiting the meaning of public interest, we work in the public interest when we reveal information that helps our audience make decisions about matters of public debate and when we expose illegal activity, anti- social behaviour, corruption, abuse of trust, negligence and incompetence, or a situation that poses a risk to the health and safety of others.”
When there is a perceived need to present explicit sexual content, the guidelines encourage CBC to “present them without undue exploitation, voyeurism or sensationalism and without trivializing, encouraging or glorifying.” Its use of language aims to have “due regard for society's generally shared values.”
Since the publication of the story, there have been several developments worth noting. These developments do not materially affect your complaint or my review, but bear mentioning for the record:
1. Douglas has stepped down from the bench temporarily and remains with the court in an administrative capacity. The Canadian Judicial Council is investigating a complaint by Chapman about her conduct.
2. King has been charged with professional misconduct by the Law Society of Manitoba for what it asserts are three breaches of its code of conduct concerning integrity (breach of trust), prohibition against sexual harassment and conflict of interest.
3. Chapman filed lawsuits against Douglas, King and their former law firm. The lawsuits are no longer being pursued. In the case against King, the court dismissed the action by noting Chapman had signed a confidentiality settlement on the matter seven years earlier. Chapman dropped the lawsuits against Douglas and the law firm.
4. Chapman has been ordered to return any photographs to King and to ensure others who possess the photographs do so, too. Chapman's computer equipment was seized to follow through on this order. He has been dismissed from his job as a computer programmer and has sought legal counsel from outside of Manitoba because he fears he cannot be represented fairly in the province. He has tried to return $25,000, reportedly the sum of the confidentiality settlement, to King.
There are strong abiding reasons for journalists to pursue inquiry and report on the facts in this case. Principally, the credibility of the judicial system depends on the public's confidence that officials are not compromised in the discharge of their duties. The complaint before the Canadian Judicial Council compels public attention. CBC News was correct in pursuing the story, even if the council's investigation had not been completed.
In an age of greater media awareness and expectation of institutional transparency, it is commendable that CBC News chose to explain how it reported the story and what were its ethical, legal and journalistic trade-offs in the process. The public benefits from this openness and a confident news organization furthers its success when it discusses the many nuances in its reporting.
In my review of CBC's newsgathering, I am persuaded that its efforts were generally fair-minded and restrained in sensitive circumstances. It gathered much more than it presented. It withheld even the mildest of the controversial imagery, attempted to provide Douglas with opportunities to tell her story, challenged some of Chapman's assertions, and the explored the defences against those assertions in detail.
The complaint also raises an intriguing issue of whether the story amounted to an “outing” no different than the identification of homosexuals in the 1940s and 1950s under McCarthyism in the United States. It suggested CBC News was inherently passing moral judgment in reporting on this type of sexual behaviour — that its reporting was no less judgmental in this era than the outings were in another era.
Clearly the news organization interpreted societal norms in pursing the story — values that would be challenged by some — but I am not convinced it erred. It turned to legal and academic authorities who were part of the community involving judicial activity for support of its pursuit of the story. It is a fair presumption that, had they considered the matter a non-issue, the story wouldn't have been published. But they asserted it was an important matter bearing on public trust in the judiciary.
Further, CBC News reported the details in a framework in keeping with its Journalistic Standards and Practices — one that avoided “undue exploitation, voyeurism or sensationalism and without trivializing, encouraging or glorifying.” Its use of language had “due regard for society's generally shared values.”
But I also found some areas of possible improvement.
Some of the legal and academic commentary in the CBC's story (and correspondence from CBC to you) commented as if Douglas knew the explicit photos were online when she applied to be a judge. In essence they were asserting that she knowingly shielded potentially embarrassing details from those who stood to advance her career into an arena requiring utmost public trust. But CBC never corroborated that issue. Indeed, the only information gathered on this point (from King and his lawyer) asserted she did not know the photos had been posted so could not have misled on the matter. It would have been prudent not to carry remarks implying or speculating that Douglas knew about the photos, because that could have led the audience to believe Douglas applied for her role under false pretenses ethically
CBC canvassed extensively and found several authorities that thought Douglas's capacity to perform her judicial duties could be compromised. It did not offer a differing view. Within a day, though, other media readily found academic and legal authorities, including two prominent Manitobans, who were quoted as saying Douglas's judicial credibility should not be questioned because of the online photos. The public would have benefited from a wider range of expert observations had CBC either canvassed more widely initially or taken the time to later confirm assertions made in other media.
CBC argued that its treatment of the story was responsible and focused on the institutional and ethical questions involved. But the opening sentence of its story — that there were “naked photographs of a senior Manitoba judge engaged in bondage” — calls that argument into some question. Linguistic restraint would have served that argument better. The presence of the introductory language leaves CBC open to claims of attention- getting treatment and takes away from what was sophisticated, delicate reporting.
In its correspondence, CBC News asserted that there important institutional implications in the story — on the judicial selection process, on the obligations of potential judges to disclose material, on the solicitor-client relationship, and on lawyers to report matters of concern to their professional associations. About 40 per cent of the story deals with institutional issues, a sizeable proportion given the need for an understanding of the case.
But there were assumptions made about what the audience knew about judicial appointments. In discussing the observations of one expert, it noted that Douglas would have filled out an application for the role, but it wasn't clear if candidates are encouraged to apply or approached about openings. It didn't discuss the government's screening process beyond alluding to the fact that potential judges had to declare if there was anything untoward in their backgrounds deserving of consideration. It didn't tell readers whether or how King's conduct collided with codes of conduct. And it didn't identify what other lawyers might have been able to do had they apprehended unethical behaviour. As a result, these implications were implied but not explored.