Law and the Press

Law and the Press

Operating in a libertarian climate, the Canadian media are mainly unhampered by licensing and little affected by prior CENSORSHIP. Instead, they are governed by common and statutory laws dealing with such areas as contempt of court, civil defamation, COPYRIGHT, privacy, government secrecy; and criminal libels such as OBSCENITY. In addition, the broadcast media are governed by Canadian Radio-Television and Telecommunication Commission regulations. Since 1982, freedom of the press is constitutionally protected in the Canadian Charter of Rights and Freedoms.

Law of Contempt

Journalists are more likely to commit constructive contempt (by publication outside the court) than contempt "in the face of the court" (by conduct inside the court), except when court rules such as restricting photographing of trials are violated or when reporters appearing as witnesses refuse to disclose sources. The traditional law of contempt would apply to press reports that are in violation of a court order, scandalize the courts or prejudice a fair trial. The Ontario Court of Appeal has ruled that the offence of scandalizing the courts is contrary to the Canadian Charter of Rights and Freedoms and is unconstitutional. The concept of prejudicing a fair trial must now be interpreted in light of the Supreme Court decision in the Dagenais case, which held that fair trial rights and freedom of expression are to be balanced as equals.

In addition, court reporting must take account of statutory publication bans. Section 542 of the Criminal Code forbids published mention of confessions considered at preliminary inquiries until the accused is discharged or the trial is ended; s539 provides "Prior to the commencement of the taking of the evidence at a preliminary inquiry, the justice holding the inquiry (a) may, if the application therefore is made by the prosecutor, and (b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any newspaper or broadcast before such time as, in respect of each of the accused, (c) he is discharged, or (d) if he is ordered to stand trial, the trial is ended" (ie, whereas defence requests are automatically acceded to, prosecution involve the exercise of judicial discretion).

Canadian journalists may be compelled to divulge sources of their news stories by courts, parliamentary bodies or properly constituted committees of inquiry. By contrast, no law forbids publication of the names of adults charged with crimes, as the law does in several European countries.

Defamation Law

In Canada civil DEFAMATION law is more often resorted to than criminal libel. Civil defamation is based on provincial statutes and common law. In most jurisdictions broadcast defamation, though oral, is libel rather than slander. To maintain a libel action 3 conditions must be proved: defamation (the words complained of are capable of a defamatory meaning), publication and identification (of the claimed libelee). Defendants may plead truth, fair comment or privilege, or consent to defend themselves against defamation claims. Proved truth is an absolute defence in Canada's 9 common-law provinces, but not in Québec, where public benefit must also be proved. Journalists are able to enjoy only qualified privilege (privilege which malice destroys) except in fair and accurate reporting of trials. Most libel statutes provide that defendant journalists may avoid paying general (but not special) damages by making apologies and retractions, provided the libellous statement does not impute a criminal conviction or criminal offence, is not actuated by malice or caused by undue carelessness on the journalists' parts. Such apologies and retractions must fulfil statutory requirements of prominence and timing.

Criminal and Civil Libel

Defamatory, seditious, blasphemous and obscene libel are all forms of criminal libel covered by the Criminal Code. Truth, fair comment and privilege provide defences against criminal libel charges as they do with civil libel claims, but, as with Québec civil law, public benefit must be proved if the truth plea is to succeed. Incitement to the use of force to bring about a change in government may be punished as seditious libel. However, qualifying stipulations in the Criminal Code are designed to permit political debate, discussion and argument without the incurring of criminal sanctions. The Criminal Code defines blasphemous libel only as intention to commit blasphemy, which it does not define. The Code provides that the blasphemy law shall not be construed so as to prevent religious discussion conducted in good faith and in temperate language. There is doubt as to whether these criminal provisions are constitutional in the face of the Charter.

Section 163(8) of the Criminal Code says "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely crime, horror, cruelty and violence, shall be deemed to be obscene." Section 163.1 of the Code was introduced in 1993 to address possession and distribution of "child pornography." Each of these provisions have defences such as serving the public good, or having artistic merit, or an educational, scientific or medical purpose.

In certain sensitive areas involving defence and national security, the OFFICIAL SECRETS ACT may inhibit the media in their investigative role.

Copyright Protection

Journalists cannot copyright the news but the language of news reports attracts copyright protection. It should be noted, however, that copyright law permits quotation from copyright material on the basis of a defence of fair dealing for the purposes of private study, research, criticism, review or newspaper summary.

Privacy does not enjoy complete statutory protection in Canada. Part VI/Invasion of Privacy (sections 183 et seq) of the Criminal Code deals almost exclusively with electronic surveillance. The federal Privacy Act, passed in June 1977 in conjunction with the Canadian Human Rights Act but now joined in 1982 with the ACCESS TO INFORMATION ACT, the federal Privacy Act, relates primarily to private information in government files and does not deal with the invasion of personal privacy by private persons. There are similar privacy provisions built into the Québec Civil Code.

Canada's Access to Information Act was passed in June 1982 and continues to provide some public access to federal government files. It was criticized at the time of its enactment as being a toothless document, by comparison with the American Freedom of Information Act. Critics considered that there were too many exemptions from the government's requirement to disclose information it held. All the provinces and territories have passed Freedom of Information and related acts which also protect personal information in government files. Quebec has extended this protection to personal information held in the private sector, but this law does affect journalistic material held or communicated for the purpose of informing the public.

See alsoMEDIA AND THE LAW, OPEN COURTS AND PUBLICATION BANS, CAMERAS IN THE COURT, HUMAN RIGHTS; JOURNALISM; NEWSPAPERS; POLITICS AND THE MEDIA.