Defamation, Media & Entertainment

Lack of due diligence opens door for libel claim

A Canadian Sikh who was falsely identified by media outlets as a terrorist involved in the Paris attacks serves as a reminder that media must conduct the proper due diligence before publishing or risk civil liability in defamation, says Fredericton litigator Matthew Pearn.

Pearn, a former CBC journalist who now practises law with Foster & Company, says the shocking, doctored image of Veerender Jubbal which went viral after the Paris attacks has created a host of legal headaches for a Spanish news agency and other media outlets which published it without properly attributing the photo’s source or making reasonable inquiries into its authenticity.

The picture was originally a ‘selfie’ that Jubbal took using his iPad. He appears in a bathroom mirror with his traditional beard and Patka, an informal turban worn by Sikh men.

An investigation carried out by Vice Magazine attributes the doctoring of Jubbal’s image to members of an online group called Gamergate. Jubbal, a vocal critic of online gender bashing, became the victim of an apparent online slander after he challenged Gamergate members who Jubbal believed were engaged in an online war of words arising from the apparent sexual harassment of women gamers. Earlier this year, two Gamergate members exchanged Twitter posts, openly plotting to doctor Jubbal’s picture to show him holding a Koran instead of his iPad and wearing what looks like an explosive bomb attached to a vest.

After the Paris bombings on Nov. 13, Jubbal’s altered image was presented online as “one of the terrorists involved in the attacks.”

Sky Italy TV and Spain’s La Razón newspaper published Jubbal’s altered image without apparently fact checking its authenticity, or attributing its source. Further, the publications proceeded to identify the person photographed as an ISIS attacker despite Jubbal wearing a turban that is traditionally associated with the Sikh and not the Muslim faith.

Pearn tells that once the doctored image with the terrorist label was published and began being viewed by people in Canada and around the world, Jubbal’s reputation was damaged. Pearn believes Jubbal now may have a claim both against the media outlets who published the image and against those who maliciously altered the image to embarrass and denigrate him. As Jubbal’s reputation is damaged both abroad and in Canada by these publications, he likely has the choice to sue in his home province, Pearn says.

“He has a cause of action in the jurisdiction of his choosing,” says Pearn. “If he lives in Ontario, it would be there. He doesn’t face have the expense of going to Spain or Europe to litigate. All he has to do it prove that the publication injured his reputation here by being seen by people who also live in Canada.”

The core lesson here for media, Pearn says, is that these European media outlets appear to have failed to meet standards of due diligence before publishing this image as being a photo of one of the people involved in the Paris attacks.

“This looks like a rush to be ‘first’ without taking care to first be ‘right,'” Pearn says. “I understand the Spanish publication has printed a retraction and apology, but Jubbal still has been defamed and he may get a settlement in the end.”

Pearn says even though Jubbal was not identified in the pictures by name, he may still succeed in a defamation claim. And just insinuating that someone is a terrorist can be cause for libel, Pearn notes. He points to the 2006 decision from British Columbia, St. Pierre v. Pacific Newspaper Group Inc. and Skulsky, 2006 BCSC 241 (CanLII), which Pearn sees as very similar.

In that case, lawyer David St. Pierre’s picture was prominently placed in a 2003 Vancouver Sun story about the Palestinian terrorist group Hezbollah’s operations in Canada. The placement of the photo and the content of the story gave the impression that St. Pierre was a man facing charges when in fact he was counsel to the accused.

St. Pierre was neither identified by name as the man in the photo, but on the basis that the publication left the impression that the man pictured in the article was a terrorist St. Pierre sued for libel. Despite a subsequent “good and timely” apology by the Vancouver Sun, the court found “libel of enormously destructive potential” in awarding damages of $35,000 and two-thirds of costs.

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