As media outlets scale down, freedom of information is under attack
By Emma Romano
David Coles sits in a boardroom on the sixth floor of an office tower in Dartmouth, Nova Scotia that overlooks the harbour.
Coles has been a media lawyer for 27 years. He’s a partner at BoyneClarke LLP and has done plenty of work for CBC in the Maritimes.
Recently, Coles has noticed a change in his field. “As media organizations’ budgets shrink, the legal department budget necessarily is under attack as well.”
Windows dominate two walls of the boardroom at BoyneClarke. Occasionally, Coles looks out at the Macdonald Bridge, the cars shuffling back and forth from the peninsula. “Certainly 10 years ago, I think the landscape was much more robust in terms of media organizations challenging publication bans and so on. Now they’re often faced with picking and choosing.”
The decline in media organizations’ willingness to fight legal battles for reporting rights isn’t confined to the Maritimes. Media lawyers across Canada have noticed it too.
“We act on behalf of a large number of different media organizations, and every day we get electronic notices of publication bans and other reporting restrictions,” says Fred Kozak, an Edmonton media lawyer. “We forward all of those notices to our clients, and I see less of an appetite to challenge restrictions.”
If media outlets stop fighting for reporting rights, their ability to report the news – and the public’s right to know – will be obstructed.
Media organizations have less money to spend on everything. Revenue generators like classifieds are gone because of websites like Craigslist. Advertisers have cheaper options if they go online. But revenue from more online ads doesn’t make up for the lost print ads.
Postmedia, owner of 10 Canadian papers, said revenue for the second quarter of fiscal 2012 was down $16.4 million compared to that period last year. They attribute that drop to “a decrease in print advertising revenue of $14.5 million.”
It’s a transitional time for media law, as the Internet creates new legal issues that affect media organizations.
“People try things,” says Coles, “and perhaps get away with them that 10 years ago they wouldn’t.”
Coles says that because media outlets are struggling financially, they aren’t able to fight lengthy court battles. Hiring a media lawyer for a one-day affair could cost a media organization between $5,000 and $10,000. If there are appeals and the case is taken to higher courts, Coles says it costs tens of thousands of dollars depending on how long the case takes.
And if the case goes to the Supreme Court of Canada – Coles says “you’re talking about spending half a million dollars.”
In 2010, a 15-year-old Nova Scotia girl found a fake Facebook profile bearing a “slightly modified version of her name” and her picture. According to the court filing, the fake profile included posts about the girl’s appearance, and “scandalous sexual commentary.”
“It was all about sexual preferences, her appearance, things like that,” said the girl’s lawyer, Michelle Awad. “Things that, when you’re 15, you don’t necessarily want being said about you ever, much less over and over.”
The girl’s father called Awad to help unmask the bully. Awad applied to the Supreme Court of Nova Scotia for a publication ban on the girl’s name and the information in the fake profile. The goal was to be able to file a defamation lawsuit without garnering more media attention.
Ironically, the case received a lot of media attention.
It changed the legal test that judges go through to determine whether or not they should grant a publication ban. That changes one of the most important safeguards for defending the right to freedom of expression.
Providing evidence that the publication of the girl’s name and the information in the profile would cause harm is a key part of the legal test for a publication ban.
Awad didn’t provide this evidence, and she wouldn’t comment on whether or not she had evidence of harm.
The Chronicle Herald and Global Television got together to challenge the publication ban. They were successful at both the Supreme Court of Nova Scotia and the Appeal Court levels. In both of those cases, the court ruled that a publication ban couldn’t be granted without specific evidence of harm.
The Herald and Global chose to pull out when the case was appealed to the Supreme Court of Canada.
Sarah Dennis, the Herald’s publisher, says they chose not to follow the case to the Supreme Court in order to allocate those funds to local reporting. She says the Herald never intended to publish the girl’s name. They just didn’t like the precedent being set.
“I think we’re aware of the dollars that we’re spending and making sure that they really are important,” says Dennis.
With no one to defend the media’s position, Daniel Burnett, head of Ad Idem, the Canadian Media Lawyers Association, was appointed to act as a friend of the court to present the case.
The Supreme Court favoured Awad’s argument, ruling that the girl could proceed anonymously because the effect that sexualized cyber-bullying could have on a child – even without specific evidence – could be easily inferred.
“It remains to be seen how the ruling that all children are vulnerable will be applied in subsequent cases,” said Awad. “Will it ultimately lead to more restrictions on freedom of expression and freedom of the press? Theoretically yes. But each new instance gets examined by the courts.”
Awad says she trusts the courts to balance the media’s right to freedom of expression with the public’s right for privacy.
Back in the Dartmouth boardroom, Coles throws two fists in the air. One fist represents reporting rights; the other – the developing laws of privacy.
He starts rubbing his fists together. If his knuckles were made of metal, they’d be showering sparks onto his slacks. He says these two rights are in constant contention.
It became more than just airing dirty laundry… it’s about what’s right.
– Andrew Douglas, Frank magazine editor [/pullquote]
A recent decision in Nova Scotia favoured the right to open courts when Frank magazine opposed a motion to seal a court file on the basis of privacy.
In May 2012 Frank magazine’s publisher, Coltsfoot Publishing of Halifax, won a bid to remove the sealing order on the divorce file of prominent businessman Hector Jacques and his ex-wife, Sharon Foster-Jacques. Frank’s editor, Andrew Douglas, says the magazine spent around $50,000 to fight the case.
Initially, Justice Beryl MacDonald of the Supreme Court of Nova Scotia’s family division wanted to seal the whole file to protect the couple from identity theft. Frank successfully opposed this ban, arguing that it was too restrictive of access rights.
Douglas says, “it became more than just airing dirty laundry… it’s about what’s right.”
MacDonald’s decision said, “The open court principles were crafted at a time when the Internet was not a public source of information nor of manipulation.”
The Internet changes privacy concerns because now information can be easily disseminated to a wide audience. Judges are taking this into consideration when balancing privacy and open courts.
For instance, Justice Heather Holmes of the Supreme Court of B.C. decided video exhibits showing interviews with a man who was accused of killing his wife couldn’t be broadcast by media outlets online because “individuals would be easily able to download portions of interest and to send them – whether in the original or a distorted form – to anyone with internet access.”
Holmes cited a case where Justice Robert Powers rejected the media’s request to broadcast the voice recording of a wife whose husband was accused of killing their children. In that decision, Powers ruled, “The recording of her voice would be accessible for an indefinite period of time by anybody doing a simple search on the Internet.”
Even with new privacy concerns raised by the Internet, and their necessary effect on reporting rights, some cases go by without any legal challenges from the media.
Burnett cites a recent court case in B.C. where Francesco Aquilini, the owner of the Vancouver Canucks, asked for a ban on his divorce proceedings.
There is less of an appetite for challenging unwarranted restrictions on reporting purely on principle.
– Fred Kozak, Edmonton media lawyer [/pullquote]
Aquilini asked for a publication ban to keep information about the value of the Canucks private because “it was delicate family information.”
“Ordinarily, that would be the kind of publication ban that three or four media outlets would all be up in arms about and would want to oppose,” says Burnett. “And yet there was really no media outlet in B.C. who considered that they had the budget room to fight that one.”
Media outlets say they are still willing to put up the money when they feel their rights are being unduly restricted.
Andrew LeBlanc, news director at CTV Atlantic, says “if there’s a case where there’s a publication ban that we felt went too far, or is a little too restrictive on our news freedoms, then we would challenge that.”
Media lawyers disagree, saying matters of principle often go by unchallenged.
In an email, Fred Kozak explained “there is less of an appetite for challenging unwarranted restrictions on reporting purely on principle.”
Media organizations are more willing to fight for their rights to access and publish information when the information directly relates to stories they are writing.
John Racovali, assistant managing editor at The National Post, says, “you sort of have to weigh the benefit against the cost” when choosing which cases to fight.
He gave an example of a case where the Post went to court with the Vancouver Sun and CBC Vancouver to get access to a search warrant used to investigate RCMP Cpl. Jim Brown.
Brown worked on the Robert Pickton investigation. Later, he was found to have posted sexually explicit photos of himself online engaging in bondage and sadomasochism. Racovali says the photos showed Brown doing “some of the things that Willie Pickton was accused of doing to women.”
Racovali says the Post is challenging this particular ruling not because they want to keep the courts open, but because they broke elements of the story.
|Defending reporting rights yourself|
Robert Koopmans, editor of the Kamloops Daily News, spent 15 years as a court reporter in Kamloops, B.C. In 2006, he got frustrated with the courts granting publication bans without question. He knew hiring a lawyer would mean spending thousands of dollars and holding up court proceedings.
Listen to Koopmans describe the first time he stood up in court to defend reporting rights without a lawyer present.[audio:http://kjr.kingsjournalism.com/wp-content/uploads/2012/10/rk-clip.mp3]
With media organizations being more careful with their dollars, some journalists have begun to fight for reporting rights by themselves.
“You try to get reporters to stand up and object,” says lawyer Stuart Robertson. “And often that’s very effective. Often people will back off their application for an order if they realize there’s going to be some argument to it.”
The four main access issues journalists face in court are non-statutory (not required by law) publication bans, access to exhibits, in camera orders (when cases go behind closed doors), and sealing orders (when courts keep certain files secret). “If you are in a situation where it’s either impractical or there just isn’t the money to have a lawyer run in, the journalist can have a little template of the key law the judge should know,” says Burnett.
Burnett says Ad Idem is looking into creating summaries of important media law cases. Journalists could then print the cases off the website, and bring them to court. Burnett says this would equip journalists to fight for their rights on their own.
There are still many privacy issues to be decided in the courts, in light of the Internet.
When it comes to media organizations continuing to fight for freedom of expression, Coles says, “it serves, in my opinion, a vital public need. But it’s a vital public need that’s protected based upon the treasuries of these organizations.
“So does that create a jeopardy? Yes it does.”