by Kristy Hutter
When four men were convicted in September for their part in a plot to blow up Toronto landmarks, a story that had disappeared from the news suddenly reappeared.
The disappearance was not because journalists lost interest in the story. It was because judges have systematically locked down information about the case through a series of publication bans. It was only when alleged plotters Saad Khalid, Ali Dirie, Saad Gaya, and Nishanthan Yogakrishnan were convicted that their names could be published.
The same cycle is about to occur again. Six more suspects in the “Toronto 18” terror case will be tried by jury over the coming months and they have requested an order prohibiting the re-publication and re-broadcasting of all information from their previous proceedings. This will force news outlets across the country to sweep their websites clean of stories that have been posted since the trials began last year.
Publication bans are frequently used in Canada to restrict the publication of harmful and prejudicial information about an open case. In this case, a ban was put in place to protect the accuseds’ identities, therefore preventing future jury members from making judgments based on what they see in the media.
But what happens when blogging and tweeting no longer ensure the protection of one’s reputation or right to a fair trial? The era of social media is upon us and unconventioal media outlets are becoming increasingly difficult to manage.
Some plead ignorance. Some don’t know how the process works. Some – bloggers and other minimally read online outlets – simply ignore them, knowing they won’t be tracked down.
Now journalists, media lawyers, and a prominent Canadian judge are saying bans need to be rethought in light of these technologies.
“I recognize what the Internet can do,” said Justice Jeffrey Oliphant, retired associate chief Justice of the Court of Queen’s Bench of Manitoba, and now commissioner of the Mulroney/Schreiber Inquiry. “It’s probably the closest thing to anarchy we can see because there are really no rules.”
Citizen journalists may not be educated in media and the law, or may be unaware of bans on certain proceedings, evidence, and identities. Some bloggers may be mindful of the bans but continue to break them, thinking they are protected by the anonymity of the Internet.
“Nobody in journalism really likes restrictions,” said Dean Jobb, an associate professor of Journalism at the University of King’s College in Halifax.
Jobb is the author of several books, including Media Law for Canadian Journalists. He described a publication ban as a court order prohibiting the media and members of the public from disclosing the identity of crime victims or witnesses, or from publicizing the evidence heard in a criminal or civil case.
The lawyer or the accused may request a ban on evidence or identities in a case and it is up to the judge to approve them. These are called discretionary bans. There are also statutory bans, used in youth and sexual abuse cases, preliminary inquiries, and bail hearings. Bans prevent tainting a future jury, which protects one’s right to a fair trial.
“There is this tension between the right to a fair trial and to be presumed innocent in our system versus the right of the press to cover the courts,” said Jobb. “Courts are an open process to tell the public what is going on.”
Enter social media and blogging.
Breaking the ban
Justice Oliphant remembers when the Internet first interfered with bans in a Canadian proceeding, during the Paul Bernardo and Karla Homolka trials.
Bernardo and Homolka were a husband and wife team charged with the rape-murders of three teenaged girls from Ontario in the early 1990s. In a plea bargain, Homolka was cut a deal. Bernardo got life in prison.
Publication bans were imposed on Homolka’s preliminary inquiry to ensure Bernardo’s right to a fair trial. But American journalists published details of her testimony on the web, available for all Canadians with Internet access to see.
“American journalists were publishing information contrary to the ban without any regard for it because they knew they were untouched,” Oliphant said.
More recently, an American website published ad executive Jean Brault’s fiery testimony on the sponsorship scandal. At the time, Canadians were still prohibited from revealing this information since it might have poisoned future legal proceedings.
“These journalists had a liberty that their Canadian counterparts did not have,” said David Coles, a media lawyer with Boyne Clarke in Dartmouth, Nova Scotia.
Coles has defended large media outlets such as the CBC. He recalls the latest trial of international proportions that had bans that were difficult to police.
“The most recent notorious case is the killings of all those women in British Columbia where you then have American news channels and bloggers very interested in that.”
Coles is talking about the trial of Robert Pickton, a Canadian pig farmer charged and convicted in the second-degree murder of six women. An appeal is ongoing.
But the Pickton trial publication bans were not only a cross-border problem. Ex-prostitutes began posting information barred from publication on Orato.com, a Vancouver-based “citizen journalism” site. The site was forced to take down the information as soon as the court discovered the breach.
Ontario courts are worried that a similar situation may unfold in the coverage of the Toronto 18 trials. The courts have already imposed a news blackout, much to the disappointment of Canadian and American journalists alike who returned to their newsrooms unable to publish what they heard in fear of being in contempt of court.
The blog vs. the law
Some feel the public has a right to know what goes on in Canadian courtrooms.
“Anonymous bloggers should abide only by ethical standards,” said Tim Bousquet, editor of The Coast’s blog, Reality Bites. “If I thought there was a more urgent reason for something to become public, then I would violate (the ban).”
He acknowledged the accused’s right to a fair trial, but said he would like to think jurors are smart enough not to be easily swayed by a blatantly biased publication.
“If the worry is that the jury is going to be tainted, then there should be a sequestered jury,” said Bousquet. “I honestly think that people who sit on juries can understand that there is a lot of stuff out there on the Internet and in the blogosphere that doesn’t necessarily reflect what is actually happening in a trial and it is their job as a jury to whittle through it and determine what’s what. We’re smarter than that.”
But Bousquet is an educated journalist and is aware of the bans. There are many bloggers who are not. A user who posts an opinion on an Internet forum may not understand that this amounts to publication. Someone who posts scandalous information on a Facebook page may not recognize that she has become a “small j” journalist. An observer in a courtroom who tweets the witness’ statement to ten of his colleagues may not realize that he just broke a publication ban.
So how can you control what is being posted online? Not everyone knows what is banned from publication.
In 2005, Ad IDEM, the Canadian media lawyers association, proposed a publication ban notification system. And indeed, the Nova Scotia courts established an Internet-based system to alert media outlets of what is barred from being published. The catch is, the media outlets must subscribe to it. There is no limit to who can sign up, so unschooled bloggers who are serious about their reporting could be wise to do so. There are similar systems in the works in Alberta and Ontario.
But this does not solve the matter at hand. People are still worried about the future of bans.
Justice Oliphant does not like to order a publication ban if it cannot be enforced.
“There are people who will argue that if a publication ban cannot be enforced and doesn’t have any efficacy, then (it) ought not to be granted,” he said. “It breathes disrespect for the order and authority of the court and is damaging to the rule of law. So I think the time has come for a real hard look at what we are doing.”
According to Justice Oliphant, it boils down to protecting the integrity of the administration of justice – not the accused, nor the complainant.
Even so, Mark Marple, inspector with the Peel Regional Police Force, said publication bans are important and that there are certain things people just cannot know. Even though social media continues to expand, he said the bans are still crucial to society.
He added, the police can find the ban breakers.
“Everybody has an IP address,” he said. “If you put something out, I can most likely tell where that came from. If you’re with Rogers, then we would ask Rogers for your computer details.”
The police may not necessarily be able to prove who wrote the information, but they can track down the exact location where it was written and from what computer it was posted. From there, like any other police investigation, they would investigate who was using the computer at the time the information was posted.
“Ninety-nine per cent of the time we can track them down,” he said. “Even if they’re American, we can put a warrant out for their arrest and get them next time they come to Ontario.”
But Tim Currie, online journalism professor at King’s, disagrees. He said there are ways of being untraceable. “Anonymizing” softwarecan mask IP addresses.
“It takes a bit of effort to install it in your computer, to anonymize yourself, and to completely not leave a trace of yourself anywhere,” he said. “But as soon as you use a computer that doesn’t have an anomymizer on it, (the police) can connect to you. I think a lot of the people they do catch are just not technologically sophisticated.”
Keep it or lose it?
Jobb argues it is time to rethink publication bans. He said bans cut off the public’s right to know. He said they also prevent the public from getting information when it is most newsworthy.
“All that stuff about the Toronto 18. People are getting dribs and drabs, little bits as bans expire, but what does that do for the public’s understanding for the whole picture?” he said. “I think a case can be made for fewer bans, less onerous bans, and they should only be used in cases to be heard by juries and even then, give jurors a bit of credit for being able to separate good information from bad.”
But when it comes to the future of publication bans, Jobb said the law could be amended to accommodate the Internet.
“It would all be for the better. Social media and the Internet really make you say ‘okay, that seemed to worked, but now that the rules have changed maybe we need to rethink if some of this stuff is really outdated.’ But I don’t think you want a free-for-all either.”
For the time being, publication bans will continue to exist in the courts of Canada and social media will continue to develop.
“In some ways the law does work (and) sometimes it doesn’t,” said Jobb. “But maybe it’ll lead to a debate over why we are protecting people against this stuff anyway.”