The Unseen Muzzle: How Timidity, Self-Censorship and Libel Chill Work Their Magic.

It’s probably fate; like James Minifie, I was raised on the slimy and sluggish River Trent in the English Midlands. He was from downriver - Burton-on-Trent; I’m from Stoke-on-Trent, upriver but, like Minifie, I came to Canada and lived on the prairies for a while before ending up, like Minifie, for a long spell as a CBC Correspondent in Washington. But there the resemblance ends; he had an illustrious career. Nowadays, I’m not sure any of us has anything as grand as a “career.” I sometimes quote Jim Munson, now a Senator but formerly of CTV News, who coined this immortal phrase shortly before he left CTV: “First, I had a career; then I had a job; now I have a shift.”

These are words to ponder in the gloomy environment we face today.

Now this may sound like the start of yet another rant from an old-school journalist about the brutish gutter of the modern media: the collapse of standards, the brain-dead blogs and the bad grammar - don’t get me started on the bad grammar. But, we’re not doing that speech tonight. Nostalgia is no use because the good old days weren’t that good and they’re not coming back. They can’t come back. The business model that drives our industry, journalism, is now skidding into history with all the grace of a gas-guzzler heading over a cliff with a sleeping drunk at the wheel.

This is why they do these Minifie lectures: to encourage a bright new generation!

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But it would seem absurd to whine about the timidity and self- censorship in our business without first whining about whether we will have a business at all. The truth is that scarcity is going to cramp our style severely in the days ahead. Obviously, you’re less likely to take risks if your job’s at risk. Already, our bosses can barely afford journalists to gather the news, let alone plane tickets to send them where they need to go or lawyers to defend libel suits. But the challenge of generating real, aggressive reporting on the world is not just a problem for publishers, but for citizens who want to see a well-informed and civilised world.

So we had best begin by understanding that the crisis in our industry is accelerated by, but is not a function of, the crisis in the financial markets. Revenues were in decline before the crash; Global was loaded with debt before the crash; the CBC’s revenues have been dropping for years. Now, we’re just heading over the cliff faster – and we have to face the prospect that some cities won’t have their own newspapers or TV stations. Commenting on CTV’s recent decision to close a couple of stations in Ontario, Bell Globemedia spokesman Paul Sparkes said, “The traditional economic model for Canadian television is broken.”

As for newspapers, the “traditional economic model” is hacking down trees, mulching them into newsprint and splattering it with ink, then hauling the result in stinking trucks to homes and boxes and corner stores. I think we know that’s broken, too.

We also know that we are not living in a mere cyclical downturn, to be followed as night follows day by a corresponding upturn. This is not a temporary slump but a deconstruction of our industry. Just as GM won’t scarf up billions of taxpayers’ dollars and come back just like before to crank out gas-guzzling dinosaurs, the old media dinosaur is roadkill, too. The information 3 world is going to the internet – heck, it’s gone - and it’s not coming back.

So, why don’t we just be bold, not timid, and move our business to the internet?

Of course, we have already moved – but, more precisely, we have moved our product to the net without moving the business - unless you think it’s a business to give away your product for free, which is what most newspapers do.

Don’t kid yourself that the online ads are sufficient to pay for the content. It does not. Furthermore, putting it on the web for free means nobody needs to buy a subscription and it also allows aggregators like Google News to cash in on content for which they paid precisely nothing – and Google News is now planning ads. And giving it all away on the web leads readers to believe that content should be free. “Information wants to be free,” they say. No, it doesn’t. Information that’s worth having wants desperately to be paid for.

So, first, we have to provide a product worth having and then we have to figure out how to get online customers to pay for it. One way to approach this might be to ask this question: does anyone here not have an iPod? You may have noticed the new feature on recent models, called Genius, which surveys your library of music to learn your tastes and then tries to sell you more songs it thinks you’ll like.

Now, many people have said that the new model for journalism should be iTunes – click on Rex Murphy’s rant on The National, pay 99 cents, and away you go. But, with due respect to Rex, you might not hum along to it for weeks afterwards. Now, some sites 4 already do fine with a subscription model: the Wall Street Journal, Consumer Reports – these are sources of high-quality, specialised information which you’re not going to get anywhere else. But what about high-quality news and commentary? My own theory, for what it’s worth, is that people will only fork out money for news on the internet if the experience is as simple and as satisfying as the one which drew us to iTunes – plus, it should offer something more, like Genius. It should remember, like Amazon’s Kindle reader, where you left off reading the last time. It should remember not to offer articles you’ve already read. It should skip all sports except the ones you follow. It should completely skip anything about Hollywood and celebrities and their crack-ups, and about golf, and any section called “home design” or “lifestyle.” It should alert me to updates on stories I care about and it should know which I care about, as Genius does. And it should definitely have a full daily roundup on the latest gadgets.

So, let’s say it knows that I also like to read pungent commentary by Margaret Wente and Christie Blatchford or Andrew Coyne and Don Martin – or, in the U.S., by Christopher Hitchens, or the big guns at the New York Times like Frank Rich, Tom Friedman, Paul Krugman, Maureen Dowd. Surely these are all writers who tell it like it is and command a loyal audience who just might pay them to keep writing. Notice that I didn’t mention any mere news reporters because it’s not clear that people will pay for us grunts who actually go and get the news as opposed to bloviating about it. Everybody wants to rant about the news; nobody wants to gather it.

But will customers even pay for those fancy columnists? Problem: the New York Times famously failed to make a go of charging for its big-name pundits with a paywall experiment called TimeSelect. 5

It made $10million a year – but the Times dropped it anyway, figuring it could make more money by taking down the wall and thereby generating more traffic to its site - so as to sell more ads. But the ads still aren’t enough to pay for the content – so they’re also interested in the subscription model. If you try the TimesReader version of the paper, you just might think of buying a subscription.

But that’s one of the world’s truly great newspapers, struggling to make all this work. Now – do you think your local paper measures up to that challenge? Let’s face it, in local news, there’s a problem of scale. Will there be enough readers willing to support everything the Regina Leader-Post does now? Perhaps not. In Vancouver, a few pathetic junkies like me will read the and the Vancouver Sun and the Province – all CanWest papers – but for how much longer? Think of the waste. Most of all three now go in the recycle bin – because they are broadcasting, not narrowcasting – giving me all kinds of junk about golf and recipes and fashion and lifestyle and pop concerts which are for other readers, not for me. I’m sorry, that’s a dead model.

So, now, newspapers and TV networks alike are moving to national sites like CBC.CA and adding local pages so that you can get a dose of local news and weather – although far less of it than you’d get in a standalone local product. And maybe those local products are not going to survive except as sections of a national online product. And maybe geezers like me who want to hold an actual paper and use it to mop up spills or swat bugs will just have to adjust. There’s no other way if you consider the awe-inspiring growth of the Internet.

Think about the numbers recently posted by the Senior VP at Google, Jonathan Rosenberg: nearly a quarter of humanity - 1.4 6 billion people - now use the Internet, with more than 200 million new people coming online every year. Note, too, that, all over the world, people use their cell phones to get on the Internet and more Internet-enabled phones will be sold this year than personal computers. Next, think about the fact that more than three billion humans now have mobile phones – along with some loquacious commuters who can’t really be considered human. So: three billion cellphones now … and more than billion more likely to be sold in 2009. And think about China, which has more internet users than any other country, with nearly 300 million users; it also has more than 600 million cellphone users. The phone is becoming the poor man’s computer and, if I’m doing a quick two- minute story, I will often ditch my laptop and just work on my Blackberry. Plus, I can race to a camera and have my notes on my handheld far more easily than a cumbersome laptop. And I don’t have to wait a month and a half for Windows to boot up.

Of course, thanks to all this technology, everyone’s a journalist now – actually, everybody’s a bad journalist. Rosenberg from Google says that 120,000 new blogs are created daily — most of them with an audience of one. Over half of those new blogs are by people under the age of nineteen. Not that I’m saying they’re narcissistic. And, in the US, Rosenberg says, nearly 40 percent of Internet users upload videos, and globally over 15 hours of video are uploaded to YouTube every minute.

What even Google can’t tell you is how to create a new model where good editors and journalists can create and be rewarded for content that is more valuable than all the drivel posted on all those tedious blogs.

Bill Keller can’t tell you, either – and he’s the editor of the New York Times, which has surely one of the best news sites in the 7 world, which Keller says gets an astounding 20 million unique visitors a month. By comparison, the CBC site gets about one million a month. Even so, the Times site does not sell nearly enough advertising to keep its superb, global reporting corps afloat.

Now all of this is only the first good reason for some timidity in our journalism: doubt and confusion about the future, even about whether there is a future, and jobs being lost at a frightening rate.

But I also said that the good old days were not something to be too nostalgic about. At the CBC, we think with good reason that we are Canada’s leading source of great in-depth stories. And we inherit a great tradition, born in James Minifie’s time with the famous This Hour Has Seven Days. That was 45 years ago, in 1964, and it was ahead of its time, with ambush interviews, and aggression, and emotion – groundbreaking journalism. But there’s another side of that great tradition, of course: the show was famously cancelled after just two years, in ‘66. Timidity killed it. There were demonstrations, indignant editorials, threats to resign by CBC Staff and a parliamentary inquiry. But it was dead, and there have been similar bumps in the road ever since.

Some will remember the controversy about The Valour and the Horror, a three-part documentary aired in 1992 about World War Two, dealing not just with the valour of Canadian forces but also with the horror of the Allied bombing raids on Germany. Again, in the face of complaints by veterans, the CBC backpedalled and apologised for the broadcast. Not our finest hour.

Another low point I know a little about was the 1997 APEC summit fiasco in Vancouver. The story was that the RCMP 8 arrested some peaceful demonstrators who broke no law, merely because the Prime Minister’s Office did not want the sight of protest signs to embarrass his summit guests – notably the blood- soaked dictator of Indonesia, Suharto. When we reported on these political arrests, the PMO shot the messenger by accusing the reporter of being biased. Actually their spelling wasn’t too hot in the PMO so, in truth, I was accused of being “bi-assed,” which seemed quite rude. Anyway, instead of just answering the PMO’s complaint, the CBC immediately banned me from the story on the grounds that the complaint created a “perception” of bias, even if there was no bias, so that I had to be silenced just in case. In other words, the complaint didn’t have to be justified; just by complaining, the PMO got what it wanted. Of course, most people watching did conclude that there was bias at work, not on my part but, rather, on the part of the CBC’s management in caving in so quickly to a political attack. And, when the CBC’s Ombudsman, Marcel Pepin, finally did answer the complaint, four months later, he concluded that our coverage could not be faulted for accuracy or fairness so … there was a happy ending, but it was not an episode that set the standard for courage in the face of political pressure.

But this kind of thing is not exclusive to the public sector. Indeed, throughout this affair, our competitors had great fun damning the CBC for kowtowing to the Prime Minister – until CanWest did the same by firing the Ottawa Citizen’s publisher, Russell Mills, in 2002. Mills was sacked after his paper ran a negative story on the same Prime Minister, Jean Chrétien, in the Shawinigate affair. So, perhaps, that doesn’t come under the heading of timidity; maybe it was chutzpah.

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But there wasn’t much chutzpah to be seen in a more recent case: the Muhammad cartoons published in Denmark in September of 2005.

You remember the cartoons – or do you? If you wanted to see them for yourself - if you wanted to see what the story was about - you did not see them in the Globe or the CanWest papers, or on Global or CTV or the CBC. Or anywhere except the Western Standard, and the Jewish Free Press and, very briefly, a student paper in Charlottetown called the Cadre.

In fact, the internet is not so squeamish – the cartoons are there on Wikipedia among other places and there are no riots about it. But, after the Danish paper Jyllands Posten published the cartoons and created a global furore, everyone got cold feet. CNN pixellated the cartoons; the BBC posted a detailed description of the cartoons, but no cartoons; the CBC and the Globe both published well-argued cases by their editors to the effect that publishing them would offend some viewers and readers for no purpose. And you might have made the same decision in view of the violent protests that occurred in the Arab world. But you’d be forgiven for wondering if it was only discretion that prevented us from offending viewers.

Of course, we happily offend them all the time: we horrific scenes of war and death. We show pictures of people being injured and even killed – Robert Dziekanski being only the latest. And that’s offensive. We have run the video of David Ahenakew railing against Jews; that’s offensive. We’ve shown a rant by the co-founder of a terrorist organisation, Ajaib Singh Bagri of Kamloops, B.C. urging a mass murder of Hindus – and that’s offensive. Reporting an artistic controversy, we showed the picture of the Virgin Mary with elephant dung on it and the 10 crucifix immersed in urine and that’s offensive. I don’t think it can be denied that the difference in the case of the Muhammad cartoons was that there was an additional element: fear of violence. How to put this politely? We were, to some degree, fortified in our principled decision to avoid giving offense by raw intimidation.

I call as a witness here the incomparable Christopher Hitchens. He wrote, “I have a feeling that the decision to protect you from the images was determined this time by something as vulgar as fear.” He goes on to say that, “the cowardice of the mainstream American culture was something to see … adding that, “In Canada, only two minority papers reprinted the cartoons … (and) were promptly taken before a sort of scrofulous bureaucratic peoples' court describing itself as the Alberta Human Rights Commission (by) the Islamic Supreme Council of Canada.”

When the Imam Syed Soharwardy, the head of that Supreme Council, noted with approval that “Only a very small fraction of Canadian media decided to publish those cartoons." … Hitchens responded that,“we have no choice but to conclude that Soharwardy is satisfied on the whole with the level of frightened deference to be found north of the U.S. border. I mention this only because the level of frightened deference to be found south of that border is still far in excess of what any censor, or even self-censor, might dare to wish.”

Now, you may agree with me that this was a case of timidity while also agreeing that it was justified in the quite frightening circumstances. You may have chosen, as our bosses did, not to die on that particular hill. Death threats sent the cartoonists into hiding and the actual violence was real. The Danish embassies in Syria, Lebanon and Iran were all torched. Altogether, at least 139 people were killed in protests, most due to police firing on 11 the crowds in Nigeria, Libya, Pakistan and Afghanistan. So don’t tell me you wouldn’t have been thinking about that if reporters came to you, or even if Christopher Hitchens came to you, arguing that we must run these cartoons.

So – this was clearly a case of self-censorship and it can happen for the best of reasons. At other times, it’s pure timidity where the threat is imaginary.

I have been in the West Bank, for instance, reporting on an act of murder by Jewish settlers in which they machine-gunned an Arab family in a car and killed a baby. At the funeral near Hebron, I heard mourners saying this was “Jewish terrorism” and I quoted them in my story. But my editors removed that line because, they said, they’d get complaints from people who objected to the phrase, even if it was quoted correctly.

And this is timidity, not bias, because it works both ways. I was back in Jerusalem after the last Lebanon war with Hezbollah. Most Israelis felt the war was botched and left them still surrounded by enemies who wanted to destroy the state of Israel. I noted that in my story - but, again, an editor wanted me to remove that line because … there might be complaints that it sounded too much as though Israelis were right to feel they’re surrounded by enemies. Of course, they are surrounded by enemies, so the complaints would have been unjustified. But, in both cases, the impulse was there to avoid complaints and thereby to deliver a watered-down product to our audience.

And yet, the sky doesn’t fall if we file stories which generate complaints.

On my last trip to the Middle East, we did two somewhat controversial feature stories. One was from the Gaza strip, 12 suggesting that Hamas had its guns aimed inwards because of discontent within Gaza. We got complaints that I demonised Hamas, which had, after all, been elected. Fine; the complaints are on our site. Another story suggested that Israel will soon face a decision whether to strike Iran before the mullahs get the bomb. And again, on our site, you can see the complaints that this story was Israeli propaganda. So, whenever you touch a difficult story, you do get complaints. But the CBC, in both cases said, fine, run the stories and let them post all the complaints they want. Plus, for every complaint, there’s a fan. Most unusually, we even got applause from the pro-Israeli HonestReporting-dot-com, which more often damns the CBC.

We’ve also had both applause and complaints for our coverage of the deadliest terrorist attack in history until 9/11, which happened in Canada: the Air India bombing of 1985. In this case, the complaints have occasionally taken the form of death threats. My colleague, the unstoppable Kim Bolan of the Vancouver Sun and I have both been threatened for reporting on the terrorists who blew up Air India. But it’s not the death threats that have affected us – rather, it’s been the lawsuits for defamation.

A typical example is from June of ’07, when we ran a documentary called, “Samosa Politics” about the pandering of Canadian politicians of all parties to Sikh extremists who claim to speak for the Sikh community in demanding a separate Sikh state. That goal is overwhelmingly rejected by Sikhs in their home state of Punjab - and one reason is that Sikhs have paid a high price, in thousands of dead, for terrorism by Sikh separatists. Yet our documentary showed how Canadian MPs from all parties stood mutely by at a Vaisakhi parade featuring posters honouring the fanatical Sikh priest from Burnaby, BC, Talwinder Singh Parmar, who was the mastermind of the Air India bombing. And, if you 13 think we’re unduly timid, we’ve got nothing on politicians who zip their lips about a parade calling the worst mass-murderer in Canadian history a martyred hero. We showed politicians weaselling out of criticising the parade; we showed the Premier of Ontario dishing out public money to separatist temples with Parmar’s picture on the wall; we showed how Stephane Dion’s victory in the preceding Liberal leadership convention was heavily influenced by delegates loyal to the World Sikh Organization - the WSO - which is a Sikh separatist group. We showed how the WSO is closely linked to a Punjabi-language newspaper in Ontario which ran front-page articles applauding terrorist acts by Sikhs; and we showed that the venue for Ajaib Singh Bagri’s infamous call for a slaughter of Hindus was at the founding convention of the World Sikh Organization, where delegates cheered him on with cries of, “Hindu Dogs! Death to Them!”

Well, the WSO sued us for an eye-catching $130 million. So far, I’m glad to report, they have failed to identify a single error in the documentary. But never mind; the purpose of such a suit is not to get at the truth but to harass you, to position the WSO as somehow entitled to speak for the Sikh community and to pressure your bosses into finding some other story for you to cover. For good measure, a toxic Facebook page supporting the lawsuit sprang up, on which more death threats were uttered. One said that we should “find out where Milewski lives and put hiz head on a stick.” Such are the people who applaud the WSO’s lawsuit against the CBC.

Even so, the suit has forced the CBC to pay lawyers defending the action and such is the chill engendered by a lawsuit that someone at the CBC immediately took our documentary off our website, in the belief that this was what you should do when sued. Of course, wiser heads quickly reversed that and, to the CBC’s 14 credit, the story remains on our site, both the original video and a more detailed written version. So libel chill does not rule the day. At CanWest, similarly, Kim Bolan has been sued by the WSO – so has Jonathan Kay of the National Post – and CanWest is sticking by them.

Still, the inhibiting fear of lawsuits is real enough even when you know you’ve got the story right. But what if that’s not so clear?

That’s the central question in an important case now before the Supreme Court: the Ottawa Citizen versus Danno Cusson. This was a case in which the Citizen reported correctly that, after the terrorist attacks of 9/11 Mr. Cusson, an OPP officer, left his job without permission to go to New York with his dog Ranger to help the rescue effort. The Citizen said he misled the authorities there to think he was an RCMP officer with a trained dog, and they wanted him out of there. The jury found those things were true, but there were other details that were not, so the Citizen was ordered to pay $100,000 in damages. Then, the Ontario Court of Appeal in 2007 upheld the decision but said the Citizen could have won if it had invoked a new defence of “responsible journalism.” So, now it’s up to the Supreme Court where the Citizen, joined by a media coalition including the CBC, argued that reporters should not be required to show that every detail was true if the story was in the public interest and if you did a responsible job of trying to get it right.

So, if the Supremes buy it, there would be a new defamation defence, in addition to truth, fair comment, privilege and consent. It's called "public interest responsible journalism" and this new defence would do much to remove the “chill” from the law of defamation in Canada. Reputations would still have to be protected but, as the Ontario court said, the balance is tilted 15 against the news media without that defence. In the ruling, Mr Justice Robert Sharpe said …

"...A newspaper that has properly investigated the story and has every reason to believe it to be true still walks on thin ice. The fear or risk of being unable to prove the truth of controversial matters is bound to discourage the publication of information the public has a legitimate interest in hearing.”

Of course, you can catch a chill by other means than a defamation suit.

A second case that’s instructive is the effort by the RCMP to get Andrew Macintosh of the National Post to hand over a leaked document in the Shawinigate story so that the Mounties can check the saliva on the envelope and find the alleged forger who, it thinks, fabricated a smear placing Jean Chrétien in a conflict of interest. Macintosh says it was not a forgery, but never mind. The lower court says the RCMP have a right to get that envelope in order to fight crime, and that takes precedence over Macintosh’s right to protect his source. In that case, we are waiting to discover whether the media is going to be drafted as an investigative arm of the state.

There’s also the weird case of Daniel Leblanc of , who’s been ordered by the Quebec Superior Court to name a source for his fine work on the sponsorship . Leblanc could be charged with contempt and fined or even jailed if he fails to answer the court's questions. In this, he’s not so much being drafted as a servant of the state but of the ad agency, Groupe Polygone, which got a cool $35 million in sponsorship loot. Yes, weird. 16

Are these excuses to be timid? Perhaps. But there are also reasons to be bold.

Start with the fascinating case of Rafe Mair, the veteran open- line host in BC who made his name railing entertainingly about politics, fish farms, Charlottetown… and who accused one Kari Simpson of bigotry. And thereby hangs an encouraging tale.

The background is that Kari Simpson campaigned against the inclusion of gay literature in schools – gay-positive literature like Heather Has Two Mommies. Simpson took issue not just with gay literature but, it seemed, with gay people. She said, “These people want your children. … [W]hen homosexuality takes on all the aspects of a political movement it too becomes a war . . . And the spoils turn out to be our children. . . We’re in a war for the identity of this nation…”

And so on. Now, Rafe Mair went on the air and he was not timid. He compared her speeches to those of Hitler and the KKK. He said of Kari Simpson’s speeches “For Kari’s homosexual one could easily substitute Jew. … It could have been blacks … just as easily as gays. Now I’m not suggesting that Kari was proposing or supporting any kind of holocaust or violence but neither really … did Hitler or Governor Wallace … They were simply declaring their hostility to a minority. Let the mob do as they wished.”

Kari Simpson sued. And, after years of costly wrangling, in June of last year, the Supreme Court of Canada delivered a resounding 9-to-nothing ruling against her. And it made it quite clear that it was deliberately expanding the safe zone for commentary.

Rafe himself isn’t so keen on the wording of the ruling, written by Justice Ian Binnie, who called him a “shock jock” – for which Rafe 17 demanded an apology. But he really should be happy with the core of Justice Binnie’s reasoning. Here’s the quote:

“There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Investigative reports get “spiked”, it is contended, because, while true, they are based on facts that are difficult to establish according to rules of evidence. When controversies erupt, statements of claim often follow as night follows day, not only in serious claims (as here) but in actions launched simply for the purpose of intimidation. “Chilling” false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements.”

End of quote, and we should pin that one up. The two points I wish to make about this are, first, that these are very important words protecting robust, even rude commentary in Canada. Second, we often seem to act as though we did not have this liberty.

Of course, in courts of law, we do have that liberty – but remember that Canada’s Human Rights Commissions are not courts of law. And, although widely condemned, they are still a problem – and Section 13 of the Act still allows them to police the internet. It seems to me that, if someone’s going to police the internet, they need to do it under the Criminal Code, under normal rules of evidence, and not in a tribunal where truth is not a defence and where the complainant doesn’t pay anything but the defendant gets huge legal bills – which is what happened to Ezra Levant and to Macleans in the Mark Steyn case. 18

No doubt enough has been said about those cases elsewhere but I think the President of the Canadian Association of Journalists, Mary Agnes Welch, summed it up well. She said, “Human rights commissions were never meant to act as language nannies…The current system allows complainants to chill the speech of those they disagree with by entangling targets in a human rights bureaucracy that doesn't have to operate under the same strict rules of defence as a court."

All of this suggests to me that there is a challenging legal environment – but not one that we can’t change by fighting – as we’ve been doing successfully in many cases.

There’s certainly a challenging business environment – but the race goes to the swift and the swiftest will figure out how to make journalism pay in the vast and expanding universe of the internet.

And there is a challenging internal environment – the reluctance to give offence or to generate complaints. So I don’t envy journalism students today trying to find jobs and make a go of this fascinating line of work. All I can tell you is that you’d better try, and you’d better succeed - or the loony bloggers and celebrity recipes will be all we have.

Thank you and good luck.