Has the internet made publication bans obsolete?

By Brooke MacDonald March 29, 201829 March 2018

Has the internet made publication bans obsolete?
Photo by Matthew Guay on Unsplash

 

 

Two people were killed. Both were under the age of 18. The CBC wrote two articles on the incident, naming the victims. The Crown applied for and received a publication ban on the victims’ names, because they were minors. Should the CBC be required to take down the articles or redact the names of the victims?

According to the Supreme Court of Canada, the answer is no. In the recent decision of R v Canadian Broadcasting Corp., which clarified the legal test for issuing a mandatory interlocutory injunction, Canada’s top court upheld the lower court decision which rejected a broad interpretation of “publish” in the Criminal Code so as to encompass web-based articles posted prior to the ban. 

While the full merits of whether the articles violated the ban were not decided (for the purpose of this proceeding the chambers judge needed only assess the prima facie case for criminal contempt of court), this case raises a number of issues about the way online reporting and sharing of information fits within our current legal system. 

There is general agreement that publication bans don’t operate retroactively. So when an article is published, it won’t be found in violation of a subsequent ban. But what happens when, in the “post-ban world”, set story is “shared” over 200 times (as was the case with the CBC article), spreading the censored information to hundreds, if not thousands, of new readers? Sure, the intent of violating the ban on the part of the author still does not exist, but the effect of the ban – to keep certain information out of the public sphere – is lost.

Historically, we didn’t have this problem. While copies of newspaper articles can be saved and stored in databases, libraries, and clipping services, and thus, like an online article, have a lasting shelf life beyond their immediate release (as the CBC argued), there is a very practical difference between hard copies and e-copies in terms of accessibility. Almost everybody has the ability to travel to the library, find a newspaper and read it / check it out. But how many people will actually do this? Contrast this active searching with online articles that are shared and re-shared with the click of a button. Now, information literally presents itself to online users who have to do nothing more than open their Facebook page or sign in to Twitter. And this information is available in the first place because the Internet, as a platform for instant publication, has led to an increase in reporting on trials before there is time for a lawyer to sprint down to the court to get a publication ban.

So if we recognize that publication bans, in certain contexts, are not having their intended effect, why don’t we fix it? Admittedly, the chambers judge noted that none of the criminal contempt authorities he relied on involved a publication ban, “not to mention a publication ban in the unique factual setting before me..” So why don’t our courts adopt a broader interpretation of “publish” in the context of a ban, or place a responsibility on media sources to update previously released online stories? 

Because we fear the derogation of our freedom of expression. Because it would not simply mean restricting a media outlet from publishing something, but requiring them to actively remove information that was once in the public domain. Because a judge cannot decide that the original story is not in violation of a ban, but then find hundreds of internet users in contempt of court when they share it. 

Philosophically and practically, these solutions do not sit well with us. The anonymity of the internet has given a voice to many who didn’t have one before, and has blurred the ancient divide of journalist and reader. Censoring media corporations pre-emptively is one thing, censoring them and the masses retroactively is another. So we will continue to “share” and “like” and “react” to information that our legal system has decided should be protected for the proper administration of justice, because so far, any plausible alternative is far too close to a Xi Jinping style society.

Brooke MacDonald is a lawyer and policy analyst for International and Intergovernmental Labour Affairs, with the Government of Canada. The opinions expressed here are the author's own.

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