You can't change the past so you have to get it right

The complainant, David Aftergood, has been asking CBC to remove an article about a conviction and sentencing that occurred in 2007 because he felt it left the wrong impression and was damaging him. Although he was sentenced under the Local Authorities Election Act for allegedly giving someone a ballot in a Calgary municipal election where his wife was running for alderman, he never served that 14 day sentence. He appealed and before a second trial could begin in 2010, the charges were stayed. Although CBC did not carry a story about the successful appeal and withdrawal of charges, updates were added to both stories. This conforms to CBC policy, as does leaving the original stories because of the important principle of maintaining an accurate public record. It is a reality of modern life that information exists in perpetuity. It’s critical that a news organization effectively manage updates.

COMPLAINT

In May of 2007 you were convicted in a Calgary courtroom for an offense under the Local Authorities Election Act. You were sentenced to 14 days in jail and a fine. The charge alleged that you had supplied a ballot to another person. At the time, your wife was running for alderman in a Calgary ward during a municipal election. You stated that you were “immediately granted a stay of the sentence,” you appealed the conviction, and the charges were dropped in 2010.

You want CBC News managers to remove the article about your sentencing because you believe it violates CBC policy of fairness and accuracy:

“The principle of fair and accurate reporting I submit must comprise the entire event, including and most especially the final outcome. A partial telling of the story, while accurate at the exact time of the telling, I suggest is not fair, particularly when the impression being left is of such a negative and harmful impact on the individual. This case is a clear example where a partial telling of the story without the ending has left a completely wrong impression.”

You pointed out that the headline on the story, “Aftergood gets jail sentence, fine in voting scandal,” leaves a false impression. You appealed the conviction and there was to be a new trial, but the charges were withdrawn before it began. Beginning in 2010, your lawyer has contacted CBC several times and has requested that CBC remove the article. News managers have not done so. They did, however update two versions of the story – one first published in April of 2007, and the other in May of the same year. You are concerned that the updated information is at the bottom of the articles and therefore anyone who chooses to open the stories caught in an internet search of your name will not be aware of the update:

“But by leaving the headline in place and the story intact and by not writing a subsequent follow up article to complete the story, the CBC has left a very damaging and inaccurate impression on the internet, which continues to be harmful to me to this very day.”

MANAGEMENT RESPONSE

The Managing Director for CBC Calgary, Alan Thorgeirson, responded to your request to have the piece removed or amended further. He did not agree that CBC News had violated its own journalistic standards because the story was “correct at the time it was written.” He pointed out that the story has been amended to reflect the fact that you never served the sentence, and that after appealing, and before a new trial began, the charges were stayed.

He conceded that when the charges were stayed in January 2010, it would have been better had CBC News reported that outcome at the time.

“It is true that in a perfect world, we would have filed a separate article to update the story at the moment it happened. Doing so now would serve no purpose to the audience, of course, and so this highly visible notation serves the purpose of informing the audience of what happened after the article was first published. It also deals with any concerns you have about an impact on your reputation. While the article may show up in a Google search, the headline does not include your first name. So the only way for someone to know you are involved in this story requires them to open the entire article, which includes the update noted above.”

He explained it is not CBC policy to remove or alter archived stories other than in most exceptional circumstances, because “once published, the story is a matter of public record.”

He added that in this case, when relevant new information emerged, those facts were published in an update box. “The information is there to be read and seen by anyone who comes across it, 7 years after its first publication.”

REVIEW

Before dealing with the specific relevant policies in this case, it is important to clarify the timelines involved in your request, and the manner in which CBC News responded. CBC News online published three stories about your legal proceedings. One was written at the time of the verdict, another at the time of sentencing, and one in 2009 at the time that a new trial was ordered as a result of your appeal.

The first one was initially published on April 24, 2007. It is a report of the guilty verdict in your trial for an offense under the Local Authorities Election Act. Its headline is “Aftergood found guilty under election act.” The second story was initially published on May 4, 2007, and it is an account of the judge’s sentence, and the story that you find the most problematic. That story is headlined: “Aftergood gets jail sentence, fine in voting scandal.”

You appealed, and just before a second trial was to begin in January, 2010, the charges were stayed. CBC did not report this development in the story. But upon being made aware of it by your lawyer, that second story dealing with your sentencing had a correction added to it on March 26, 2010:

David Aftergood was not jailed for violating the Local Authorities Election Act as previously reported. He was sentenced to 14 days in jail in May 2007 but never served out the sentence, because upon appeal, he was granted a new trial and the charge against him was stayed in January 2010.

The original story published in April 2007 also has the final disposition of your case. It was added on November 29, 2012 after further communication with your lawyer:

Update: David Aftergood was sentenced to 14 days in jail in May 2007 but never served the sentence, because upon appeal, he was granted a new trial and the charge against him was stayed in January 2010. The Pham brothers were found not guilty in May 2007.

In February of this year, you brought the matter to the attention of this office, and asked for further consideration because this was still a source of some concern and difficulty for you and your family. You asked whether these stories met CBC Journalistic Standards on accuracy. The policy states:

We seek out the truth in all matters of public interest. We invest our time and our skills to learn, understand and clearly explain the facts to our audience. The production techniques we use serve to present the content in a clear and accessible manner.

As you point out, the stories were accurate accounts of events. Reporters seek the truth and report it. They did so at the time. In journalism, truth is not an absolute, by definition, since information emerges over time. News judgment also involves questions of timeliness, and impact. So some stories will be left, and not returned to for a variety of reasons – some of them deliberate and others frankly because of the hundreds of other circumstances and realities that go into coverage decisions. The record left will reflect the truth and the information known at a point in time.

When it comes to the reputation of a person or organization, though, there is more onus on providing a complete record. This is reflected in CBC policy on reporting on court cases. In fact there is an entire section of the Journalistic Standards and Practices that deals with court coverage. There is a policy entitled Fair Treatment and Reporting of Outcome:

When we cover a legal proceeding, we are aware of the importance of reporting its outcome and we treat the persons concerned with dignity. Rigour in coverage requires that we report fairly on the evidence and the claims of all the parties and give significant play to the verdict. The verdict must be accessible to users of CBC.ca or Radio-Canada.ca who consult archival material identifying an accused.

The stories written about your case adhere to this policy. I sympathize that something so far in your past still exists and is accessible in a Google search, but it is now a reality of modern life. I note that a search of your name, as it does with many others, reveals a range of mentions, some positive and others less so. Someone with a public profile will have more exposure, and both news organizations and news makers are grappling with what is fair and reasonable in an era of such extraordinary transparency and permanence.

The fact that CBC insists that court cases are covered to their conclusion is an important commitment. In your case, the change came upon appeal, a process that can take years. In this instance there was almost a three year gap. It is unrealistic to think that a news organization could monitor every appeal process, but when brought to its attention, it can and should reflect the new information. CBC News acted appropriately on that count as well.

The final policy that is relevant here is the one that deals with what is colloquially known as “unpublishing,” or the complete removal of a story from the archives. As Mr. Thorgeirson pointed out to you CBC, as well as most news organizations, will only remove material in extreme situations. Here is the CBC policy:

Because much online material remains accessible indefinitely, we receive requests to remove stories by audience members who are either principals in stories, or are affected by them. We generally do not agree to requests to remove published material from our web pages. Our published content is a matter of public record. To change the content of previously published material alters that record. Altering the record could undermine our credibility and the public’s trust in our journalism. There can be exceptions to this position – where there are legal or personal safety considerations to the person named.

Requests to remove material should be referred to the Director.

CBC News staff followed due process in this case. Both stories you complained about over a period of time were amended. There was no violation of policy. While you will not be pleased to hear that, it does provide an opportunity to highlight a challenge for CBC News, and all other reputable news organizations. As I mentioned earlier, it is not realistic to expect news staff to know about every appeal of a sentence and its outcome.

More realistically, CBC management might want to think about what to do when new information is made available. It may be easier, as Mr. Thorgeirson mentioned, to create a new story, even if the information becomes available some time later. In other words, it is no longer “news” in that it is happening in the moment, but it is new and significant information that should be present to complete the record. News managers might want to consider, along with front line staff, a range of responses when deciding how to proceed. That could mean creating a new story, or featuring the update or correction prominently within existing stories as was the case here.

Esther Enkin
CBC Ombudsman