In June, former NBC News war correspondent Arthur Kent, who unsuccessfully ran for office in Canada in 2008, won his libel lawsuit against the Canadian newspaper company Postmedia. The suit centered on a 2008 column by Don Martin published in the Calgary Herald and the National Post, both newspapers owned by Postmedia, that Kent says ruined his attempt at a political career.
The article indicated that Kent, who was in the last weeks of running for a Canadian political office at the time, was egotistical and a bad candidate, and that his campaign was falling apart with staffers fleeing. After the 2008 column, Kent’s campaign had fundraising issues and Kent ultimately lost his election. Kent complained not only over the claims in the article, but also that he wasn’t given an appropriate chance to respond. Kent tells iMediaEthics he wouldn’t have sued if the newspapers had just published his letter of response rebutting the column, but his request for response was rejected.
“He was the Satellite Dish and the Desert Fox before they christened him with the nickname that stuck: The Scud Stud,” Martin wrote in 2008 in part about Kent, who earned fame reporting on the Persian Gulf War in the 1990s. “But Alberta Conservatives have bestowed problem candidate Arthur Kent with a less-flattering designation as he noisily blusters his way through their ailing election campaign: The Dud Scud.”
iMediaEthics spoke with Kent about the ruling, which we covered in brief at the time. Kent, a veteran journalist, explained why he spent eight years fighting this case in the courts and argued that it emphasizes the importance of the basics of journalism, including checking facts and giving those criticized a fair opportunity to respond before publication.
Postmedia vice president of communications Phyllise Gelfand told iMediaEthics in mid-July, “Postmedia has decided not to appeal the decision.”
In response to that news, Kent told iMediaEthics by e-mail:
“The next step is obvious. Postmedia Network Inc. must apologize to me and retract the Martin Article. The same goes for Don Martin. For a publisher and journalist in these circumstances to decline to apologize would demonstrate contempt not only for me, but for the Court’s verdict, a verdict they have chosen not to challenge by way of appeal.”
iMediaEthics sent a number of questions to Martin and Postmedia seeking comment in response to various aspects of the judge’s ruling. “Although we support the work of journalism education and media ethics, we do not wish to relitigate the case in the media, and therefore will have no further comment,” Gelfand told iMediaEthics.
Martin, now a host with Canada’s CTV, told iMediaEthics he maintains he took the proper precautions for his column.
“Columnists are under no legal or ethical obligation to contact a public figure who is the subject of a fair comment analysis, but I contacted the email address on a news release and that seemed a reasonable step,” Martin told iMediaEthics after Postmedia decided against appealing. “He had the better part of a day to respond and didn’t. An independent analysis of my conduct found no breach of journalistic standards.”
Kent has a personal connection to the Calgary Herald, telling iMediaEthics that he started his reporting career at the newspaper, that he continued to submit stories over the years to the newspaper, and that his father also worked for the newspaper. The Herald even published one of Kent’s articles on foreign affairs about six weeks before publishing Martin’s column critical of him, he said.
“This is my hometown,” Kent said. “Calgary, Alberta is where I was born and grew up and it’s also where I started my career.”
The Column: ‘Scud Stud Lands With A Thud’
In 2008, the Calgary Herald and National Post published a column by Martin on Kent’s political campaign. Kent was running as a Progressive Conservative to be a Member of the Legislative Assembly.
Late 2014 advertising information for the Herald shows the newspaper with an average circulation just shy of 120,000. The National Post is a national newspaper based in Toronto with a circulation of about 185,000, according to the Post’s media kit information from 2015.
Jo’Anne Strekaf, Justice of the Court of Queen’s Bench of Alberta who was the judge in the case, summarized that “the overall tenor” of Martin’s February 2008 column “is that Arthur Kent is a politically naïve arrogant has-been journalist with a huge ego whose election campaign is in disarray and who is doomed to become an ineffective MLA [Member of the Legislative Assembly] if elected.”
The column stood out as “markedly different than the other articles” on Kent at the time with its “harshly critical personal tone,” the judge, Strekaf, remarked. As such, the judge said readers of the column would “think less” of Kent.
Kent complained to the Calgary Herald, saying that he wasn’t given a chance to comment and saying he wanted to respond. Because the election was just two weeks away at the time, Kent planned to respond afterwards, he said.
Kent lost the election and submitted his letter of response. But, his letter wasn’t published. The decision against publishing his letter is what led him to sue, he says.
Kent’s Letter of Response
After the election and a few weeks after Martin’s original column, Kent submitted a response letter to the two newspapers.
Why wait? “We were only two weeks from the election and the piece was so poisonously, we felt, manipulated and designed as a smear as a hit piece, we decided not to participate in a ‘pissing match’ during the campaign but rather to try to win and in any event answer it after election day,” Kent told iMediaEthics.
In his March 9, 2008 response, Kent characterized Martin’s article as an attack ad that was both “harsh and personal” even though he has “never met or spoken” to Martin and Martin didn’t “give me a reasonable chance to comment prior to publication.” Further, he said Martin’s “tirade is laced with falsehoods.” His response also “linked Mr. Martin to Messrs. Klein, Love, Hallman and Richardson,” the judge noted. [Ralph Klein, Rod Love, Allan Hallman and Lee Richardson were all Canadian politicians].
Kent denied Martin’s claim that “half his team was ready to quit” including Kent’s finance officer, pointing out that the finance officer denied it and that he had an increase in volunteers.
“Martin denied me a chance to comment prior to publication – a requirement of responsible journalism. An email to our website reached me after the article had gone to press,” Kent wrote in his letter, noting that other Herald employees had his personal contact information.
Why Calgary Herald, National Post Didn’t Publish His Letters
The Calgary Herald‘s editor Lorne Motley had assistant managing editor Gord Smiley review Kent’s letter, according to the ruling. Smiley asked Martin about the column, who told Motley via e-mail that he got information for his column from “at least three Kent insiders” and “several sources…including the campaign manager and a board member” and “the vice-president social (which is fundraising).”
Smiley told Motley that “Don says [politicians] Rod Love, Allan Hallman and Lee Richardson had nothing to do with what he wrote” and that he didn’t think the paper could publish Kent’s response. In reality, Love and Hallman later were revealed as anonymous sources for Martin, and “Martin acknowledged in questioning that he may also have spoken with Mr. Richardson,” the judge wrote. “Mr. Martin acknowledged at trial that Mr. Hallman did have something to do with the Article as he was quoted in the Article.”
“As far as Mr. Kent’s submission is concerned, I very much doubt we can publish any of it,” Smiley wrote to Motley, according to the ruling. “There are unsubstantiated allegations in it concerning Hallman, quotes which we would need to confirm and political connections we would need to verify. I believe the work he submitted is unpublishable.”
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Instead, Smiley suggested the Herald have Kent “write a piece which moves us forward, perhaps a piece about his first foray into politics, lessons learned, battles won…or lost. I just don’t see us getting anywhere with this he said, she said response.”
The National Post also told Kent the newspaper wouldn’t publish his response but his reasoning was that it was old news, according to the ruling.
Kent told iMediaEthics he never would have gone through the legal process and spent eight years fighting the column had the Herald and Post simply published his original March 2008 letter responding to the column, which he noted the judge appended to her ruling. “I stuck with it through the years because it’s just so fundamentally wrong,” he said.
Not only would the newspapers not publish his letter to the editor, he wasn’t offered the opportunity to submit a shorter version, Kent said. The National Post told him the matter, at three weeks, was too old.
Because the newspapers wouldn’t publish Kent’s response letter, Kent decided to sue to correct the record about his reputation. Back in the 1990’s, Kent sued after NBC News fired him and secured an apology letter from the network saying his firing was “exclusively the result of a contract dispute between the parties. . . . They were not because of Mr. Kent’s refusal to travel to and report from the former Yugoslavia,” the Los Angeles Times reported in 1994.
Fact Checking, Right of Reply, and Reporters’ Notes
The judge ruled the newspapers should have taken better steps to verify. “There is a greater requirement to provide an opportunity to the target of a negative article to respond where there is no urgent need for publication,” the judge remarked. “In general terms, since most of Mr. Martin’s sources were very negative towards Mr. Kent, and to his knowledge several had an axe to grind with him, and as he specifically approached Ms. Robidoux for ‘more dirt,’ it was incumbent on him to take reasonable steps to verify the information that he was relying upon, since the status and reliability of the sources required it,” the judge later wrote.
Martin told iMediaEthics he disagreed with the judge’s point. “The judge’s comment that I sought out ‘negative information’ was her view,” he wrote. “I do not share her supposition that seeking the truth in a politically controversial situation to be inappropriate. There wouldn’t be much investigative journalism if we only went digging for positive news.”
Further, the judge noted that Martin didn’t have the notes or e-mails to back up his column. “Subsequently his computer could not be located,” the judge wrote. “Once it was located, it was missing the hard drive. A hard drive believed to be from Mr. Martin’s computer was eventually located, but it was too damaged to recover any information,” the judge wrote. Further, the judge noted that Martin couldn’t remember which of his sources supplied specific comments, such as who told him Kent was a “Dud.”
“I had written notes for this article, but I didn’t keep them,” Martin told iMediaEthics. “They were mostly just the quotes in the article in any event, with perhaps a few electronic memos to myself. The article used emails which were entered as exhibits.”
When asked if he keeps notes now, Martin said, “I am now a television host so I don’t need to keep notes beyond my script writing.”
The judge noted that the claims in the column “could (and perhaps did) affect Mr. Kent’s ability to fundraise, to recruit volunteers and to convince members of the public to vote for him within the tight time frame of less than a month remaining until the election.” Kent testified last year that fundraising “came to a crashing end” after the column was published, according to the Canadian Broadcasting Corp.
“Martin failed to make meaningful efforts to speak with Mr. Kent directly before writing a very negative article about him,” the judge ruled. “Mr. Martin was an experienced journalist with access to contacts at the Calgary Herald who had ready access to Mr. Kent’s contact information. No other journalist appears to have had any difficulty contacting Mr. Kent during the campaign prior to writing about him.”
Further, the judge ruled that Martin “was not candid” with the paper’s Smiley about Kent’s response. For example, Martin told Smiley he had three sources within the campaign e-mailing but at the trial said he only had e-mails from one, Robidoux. He also told Smiley that Love, Hallman and Richardson “had nothing to do with what he wrote” but the judge noted Martin had talked with at least two if not all three the day he wrote.
The judge also commented that “There are some aspects of Mr. Martin’s conduct which I find troubling.” For example, Martin “actively sought out negative information” about Kent without fully fact checking or fully attempting to contact Kent, the judge wrote. The judge further commented Martin was “not candid” with Smiley and at times was “less credible” at trial, especially given his lack of notes. The judge also called the National Post‘s decision to not publish Kent’s response “not reasonable.”
Martin didn’t speak with Kent before his article was published, the judge wrote. Kent e-mailed Kent’s website e-mail address and said he called Kent’s campaign office without any luck or receiving a message machine. From its side, Kent’s office said it never got a call or voicemail. Kent said by the time he saw the e-mail to the firstname.lastname@example.org account, it was late at night so he was not going to respond to it. Regardless, Martin could have e-mailed or called Kent directly given that other staffers at the newspapers had that contact information and Martin had emails with Kent’s direct e-mail yet e-mailed the info@ account, the ruling notes.
The judge decided the paper could have waited to publish to get comment from Kent since it seemed the paper went ahead with publication due to Martin’s deadline and not what the article was about. “The matters raised in the Article were not sufficiently urgent or of such public importance that they justified proceeding with publication in the absence of obtaining Mr. Kent’s side of the story,” the judge stated.
In response, Martin told iMediaEthics he typically wrote several columns each week for the paper. “They counted on my contribution to the papers and there didn’t appear to be any outstanding concerns to warrant a delay in my view as most of the information was double or triple sourced,” Martin said. “Ultimately, it’s an editor’s call to hold a column, not mine.”
The judge criticized Martin for not tracking down a better way to get comment from Kent before publication. “Given the harsh tenor of the Article and the new issues that it raised, I do not consider that Don Martin made sufficient reasonable efforts to contact Arthur Kent to obtain his perspective,” the judge wrote, noting that as an “experienced journalist” Martin could have “easily” gotten Kent’s phone number.
The judge wrote that the column couldn’t be defended by qualified privilege but the topic was “easily” in the public interest. “It would be a significant extension of the law of qualified privilege to apply it in the circumstances of this case, an extension that would be neither appropriate nor desirable,” the judge wrote. Judge Strekaf added that malice wasn’t proven.
Where to go from here?
“I’ve been cheered by the expressions of support and understanding I’ve had from colleagues in news in Canada and abroad,” Kent said.
From Kent’s point of view, the judge’s ruling affirms traditional journalism practices. It “reinforces fundamental principles of responsible journalism,” Kent said to iMediaEthics. He went on: “You don’t make stuff up. You don’t mislead your editors. You always seek to publish the truth.” Kent went on:
“I feel it’s unfortunate when journalists and news organizations have to allow the courts to remind them of the basic tenets and requirements of real journalism. However now that it’s done in these circumstances, I’d like to ensure that the benefits are lasting and not just as citations in future defamation actions in court but in journalism schools, in law schools and that people understand.”
“After eight years of entirely necessary litigation, it’s encouraging to discover that the court finds that truth and balance and basic fairness still matters in journalism,” he commented.
“I think when journalists review the judgment in detail they may wish to throw it across the room, but I think that would be a reaction to the journalistic practices that the court we believe has rightly found to be dead wrong,” Kent said, adding that he thinks “genuine journalists should celebrate the court’s affirmation that fair truthful reportage and commentary is protected and should never be subject to a chilling effect from the law.”
Moving forward, he said he expects to go back to his journalism roots. “I must say that the whole process of responding to this has reconnected me with my journalistic roots so certainly I see in the near term, I would like to do some writing and publish some works whether they be in the form of academic critiques.”
“We should be reporting the truth and nothing but the truth and our commentary, however caustic or sharp it may be, it’s gotta be based on the facts,” Kent said.
The June 8 ruling from Judge Strekaf is here.