Digital Media, Freedom Of Expression, And The Evolution Of Journalism

Digital Media, Freedom Of Expression, And The Evolution Of Journalism

Sue Gaudi is the Vice-President, General Counsel and Corporate Secretary at The Globe and Mail Inc. She presented the following talk at a lecture to students in IP Osgoode's internship program, the Intellectual Property Law and Technology Intensive Program (IP Intensive). We are very pleased that The Globe and Mail is hosting one of our student interns during the Fall 2011 academic term.

I’m here to talk about the evolution of journalism and effects of digital media on freedom of expression. While this is most obvious in the international context, the legal framework in Canada is not immune from the influences of social media and citizen journalism and the new landscape is changing the way our courts view the law.

International Context

I thought I’d start out with some recent international headlines:

  • Masked men break hands of critical Syrian cartoonist.
  • Omani judiciary attempts to silence newspaper before trial.
  • Body of abducted journalist found in Mexico.
  • Six Libyan journalists still missing.
  • Philippine radio commentator fatally shot.
  • Chinese journalists punished for citing historian.
  • Pakistan news crew attacked at midday in central Peshawar.

These are just a few of the headlines recently published on the Committee to Protect Journalists’ website, a non-profit organization that promotes press freedoms. The headlines are shocking and portray the dangers faced by all journalists – whether on assignment from organized news media or citizens who choose to bear witness to current events -- and in particular those covering uprisings, combat, violence and war. According to the CPJ, as of August 26th, 871 journalists have been killed since 1992, and 649 are in exile worldwide.

These headlines appear to refer to the established media. However, increasingly, digital media has made reporting a function of the people – relatively cheap technology such as smart-phones facilitates almost instantaneous sharing of the events around us, allowing the world to see, hear and experience what is happening in other corners of the globe, whether remote or just next door. The possibilities opened by technology and ensuing digital media are historically unprecedented and have changed the way the world sees itself – an exciting prospect for many.

It is also a terrifying prospect for others who wish to silence dissent. There are many examples, and one in particular stands out to me.  In June 2009, hundreds of thousands of people took to the streets of Tehran in protest against Mahmoud Ahmadinejad’s landslide election victory, which was widely viewed as fraudulent. The government responded by ordering journalists not to report from the streets and revoking press credentials for foreign journalists. This attempt at censorship was thwarted on a massive scale when the shooting of 26 year old Neda Agha-Soltan was captured on video and transmitted over the internet, bringing the severity of Iran’s political turmoil to the world and prompting widespread reporting and commentary internationally.

The Canadian Context

Canada (as opposed to the countries that made the CPJ headlines) takes freedom of expression very seriously.  We are a lawful nation and do not suffer from overt censorship or endemic violence against our journalists, although I sometimes worry about the journalists The Globe and Mail has in other parts of the world reporting for us.  Indeed, it has been reported that since June 2009, Canada has granted political asylum to Ms. Agha-Soltan’s fiancé, himself a journalist who has said he was arrested and tortured in Iran in the aftermath of her killing.

That said, in recent years, there have been no fewer than ten cases involving press freedoms heard by the Supreme Court of Canada, covering the areas of defamation, protection of sources, publication bans, freedom of information, election laws and access to courts. Cases that reach the Supreme Court of Canada are by their very nature controversial and precedent-setting. There are many, many more cases heard by the lower courts, often brought by media outlets in an attempt to enforce the settled law pertaining to freedom of expression rights.

While we are fortunate in Canada to have recourse to the courts to fight the battles for freedom of expression, the volume of cases that have escalated to the highest courts of the land are emblematic of the continual challenges the media face.  It is the defence and advancement of the media’s right to publish and disseminate important information of public interest that forms the backbone of the work I do at The Globe and Mail.

Before we dive in to the Canadian context, I’d like to take a step back and review the international legal precedent for freedom of expression, because it came first.

Freedom of Expression

Freedom of expression is an ancient concept and has been recognized in various forms by many civilizations, including the ancient Greeks and Romans, as central to democratic ideology. Over the centuries, it has made an appearance in England’s 1689 Bill of Rights and France’s 1789 Declaration of the Rights of Man and of the Citizen. It forms the core of the First Amendment to the US Constitution, adopted in 1791.

In more recent history, freedom of expression has been enshrined as a human right under the Universal Declaration of Human Rights.  The Declaration was adopted by the United Nations General Assembly in 1948 in response to the atrocities of the Second World War. Article 19 states:

Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

This commitment was translated into international law in 1976, with similar language included in the International Covenant on Civil and Political Rights.

Many countries have recognized these obligations in domestic law, and Canada is no exception.  Freedom of speech and freedom of the press have been specifically protected in the Canadian Bill of Rights since 1960.  The current legislative framework for freedom of expression is found in The Canadian Charter of Rights and Freedoms, which came into force in 1982.  It states:

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
  2. Everyone has the following fundamental freedoms: … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

We will see in a moment how relevant this last part of the Section 2(b) expression rights has become.

It is important to recognize that freedom of expression is invariably subject to certain laws.  In Canada, the media are governed by laws of general application to the Canadian populace, including laws against hate speech, libel and slander laws, freedom of information laws, election reporting laws, and criminal and civil contempt laws pertaining to the identification of certain victims of crime, young offenders, and information that could prejudice a person’s right to a fair trial.

Many media cases are grounded in the interpretation of what these laws mean in a particular set of circumstances, or in the times in which we live, and how they intersect with Charter rights.

Several of Canada’s Supreme Court decisions grapple with the role of social media, and citizen journalism, as well as the ramifications of widespread instantaneous reporting due to digital transmission technology.  I will share just a few examples.

Responsible Communication

In the 2009 case Grant v Torstar Corp., the media successfully argued for the right to publish stories in the public interest, even if they were found to be defamatory, if the publisher acted responsibly and took appropriate steps having regard to public interest in reporting the story and the reputations at stake.  Factors to be considered include, among others, the seriousness of the allegations, the public importance and urgency in reporting the story, the reliability of the source and whether the plaintiff’s side of the story was sought.

This defence is new and has yet to be developed in Canada.  It has the great potential to reduce libel chill in Canada by allowing stories that are in the public interest to be told that would otherwise have been shelved because the story just could not be proven – for example, because the target of the story was very litigious and refused to be interviewed or comment on allegations.

Grant was a landmark victory for the established media, which had been arguing that there should be a “responsible journalism” defence for years. However, it is noteworthy that the Court decided to call this new defence the “responsible communication” defence rather than the responsible journalism defence, acknowledging the difficulty in determining in the age of social media and citizen journalism of determining who exactly is a journalist. As a law of general application, it applies to everyone seeking to communicate stories in the public interest, whether in a national newspaper, on Twitter, or in a blog.

Source Privilege

The question of who is a journalist also influenced the Supreme Court in a pair of cases decided in 2010, setting out the law on protection of journalist’s sources. In both R. v. National Post and Globe and Mail v. Canada (Attorney General) the central issue was the right of a journalist to keep confidential the source of a story.  In both cases the public interest in the stories were not really at issue  – in National Post the story implicated then-prime minister Jean Chretien in a conflict of interest regarding a bank loan.  The Globe and Mail stories broke the Liberal government’s sponsorship scandal in Quebec.

The Court in National Post declined to provide special constitutional protection to news gathering techniques – contrary to the arguments made by the media, who were seeking to have news gathering techniques recognized as a S.2(b) right.

In this case, the document at issue was generally accepted to be a forgery.  The Court had difficulty in giving protection to a source who may be a suspect in a crime and allowing the media to suppress physical evidence central to a criminal investigation.

While the police had the sympathies of the Court, the case dealt a major blow to the media.  Many stories are heavily reliant on information that is brought forward by insiders and whistleblowers, and an inability to protect sources may cause those who would otherwise have come forward to self censor.

The Court had already determined that protection of sources as part of the news gathering process was not automatic when it heard The Globe and Mail case.  However, the facts were very different in this case, which was about a whistleblower who had crucial information about the mishandling of federal sponsorship funds and whose information led to a national inquiry into the sponsorship scandal that toppled the government of the day.

The Court clarified that in some circumstances sources may be protected, and set out the national test for determining the parameters of the protection of the source-journalist communication:  the communication was made explicitly in exchange for a promise of confidentiality; the confidentiality was a pre-condition to the disclosure; the relationship between the journalist and the source was diligently, deliberately and consciously fostered in the public good; and the public interest served by protecting the identity of the source outweighs the public interest in getting the truth.

More importantly for The Globe and Mail, the Court overturned the lower courts’ requirement that our journalist, Daniel Leblanc, divulge his source, instead sending the case back to the judge who made the initial ruling with instructions to revisit the facts in light of the clarified test.

Had the Court declined to hear the appeal, or to overturn the lower courts, both Daniel Leblanc and The Globe could have faced severe sanctions for a refusal to identify the source code-named Ma Chouette. As an aside, Daniel had an incredible social media following of his own with respect to this case, especially on Facebook.

The Court was reluctant to give blanket, or class, privilege to journalists for news gathering techniques in a world of low barriers to publishing information. The Court stated that there could be no class based privilege “on the basis that there is no formal accreditation or licensing process for journalists in place, as there is for lawyers for example, and no professional organization regulates the profession and maintains professional standards.” While this statement could be viewed as a call for accreditation (and perhaps has been -- more on that in a moment), it reflects the struggle the Courts have with the new world of journalism opened up by the advent of digital media.

Other Examples of News Gathering

The Supreme Court’s 2010 decision denying constitutional protection for access to information (Ontario (Public Safety and Security) v. Criminal Lawyer’s Association) mirrors the results of the source cases.  Access requests for information are fundamental to the news gathering process and necessary for the publication of many stories that are in the public interest, including those that shine a light on our largest public institutions.  The Toronto Star’s allegations of racial profiling by Toronto Police, published in 2002, is one example of a story that could not have been published without a successful access to information request.

The experience of the media with access to information requests is often difficult, time-consuming, and costly. Requests sometimes take a long time to process, or are subject to redactions that render the documents indecipherable. It often takes court challenges to successfully unseal documents we believe should have been accessible under the existing law.

A similar pattern exists with respect to access to exhibits in public proceedings. Most recently, journalists have had difficulty in gaining access to exhibits in the Ashley Smith inquiry. As you may know, Ashley Smith was the young woman who died in custody, while the guards looked on without intervening. The coroner’s inquest is public, and the family has indicated a willingness to share her story. It is the coroner’s office that has stymied efforts to review exhibits filed in the inquiry.

These are examples of more typical Canadian incursions on freedoms of the press and freedom of expression. They can lead to censorship – self-imposed in the case of sources that don’t speak up, and state-imposed if access to information requests, or court exhibits, are unreasonably denied or delayed.

Open Courts

While Canada has very robust and settled law setting out open courts principles, the reality for the journalists attempting to cover the courts can be less than ideal. Limits on coverage of court proceedings are entirely justifiable in some circumstances (and generally enshrined in the criminal law) – for example, the media do not quibble with rules against publishing names of victims of sexual assault who do not want to be identified, or the names of young offenders. There are good reasons to give some people their privacy.

In addition to publication bans mandated by statute, parties to litigation may apply to a judge for a publication ban of their proceedings.  Unfortunately, experience has shown that journalists often do not get advance notice of these publication bans requested in civil cases, and can be limited in how they get to report from court – an example being the reluctance in Canada to allow cameras in the courtrooms.

All these challenges are difficult enough for journalists who are associated with media organizations that have the resources to tackle them using the court system.  In the case of access to information and publication bans, protracted litigation often eventually results in favourable decisions for freedom of expression. But litigation takes considerable resources – time, energy and money. Big media companies think hard about where they will allocate their budgets. Citizen journalists have the most to lose, as they generally have little hope of funding the expenses involved with litigation.

The Quebec Proposal

So, is the answer to license journalists?  This is the question being posed now by the Quebec government.  Quebec’s Culture Minister has recently put out a consultation paper asking for public comment on a plan to regulate the Quebec media.

The genesis of the proposal was not the Supreme Court’s comments in The Globe and Mail case.  It derives from a report published earlier outlining concerns that the conditions of practicing professional journalism are deteriorating in the wake of competition by new and perhaps less disciplined entrants to journalism, and the effect generally of the internet on journalism.

The proposal is new, and is being studied by the Quebec media, including The Globe and Mail, which publishes nationally. But it is not favored, even by the established media that could potentially benefit the most. The National Post has advocated against it, in a recent article calling it:  “a paternalistic approach that that reveals a failure to grasp how quickly technology is changing delivery of the news…”

The Globe and Mail published an editorial in the August 27, 2011, edition of the paper that crystallizes the issues well.  I’m going to take the liberty of quoting the entire piece, since not only does it address the issue of licensing of journalists narrowly, but sets it in the broader context of our topic today – digital media, journalism and freedom of expression.

“A licensing system for journalists being discussed in Quebec is a form of press regulation that would put limits on the free flow of information.

The licensing system would create a “professional journalist” designation, backed by Quebec law that could provide for preferential access to government sources and extra rights to protection of sources. That may sound seductive to some journalists. Exclusivity, bargaining power, prestige and money may be seen as side benefits to a professional licensing system administered by a body of journalists. But the damage to press freedom, and therefore to individual journalists, card carrying or otherwise, would be considerable.

How? Controlling access to sources or to news conferences would by definition mute or limit some voices.  Who might be shut down?  Those who cannot afford professional schools, if that is what is required for a designation. Or those who find, whether at 14 or 94, that they have something to say, in a newspaper or on Facebook or in forms not yet invented. The group of people excluded would be massive.

And the free flow of information would be subject to state control.  Government advertising would be restricted (under one proposal) to those news organizations that meet accepted proportions of “professional” journalists.  News organizations that don’t could be destroyed – including Internet start ups that could one day become as large and powerful as the Huffington Post.

A proposal to make French language proficiency a requirement of journalists could shut down voices in minority-language media.  The proposal shows that political imperatives other than journalistic ones could be imposed on a licensing system.

What is a journalist?  It helps to be able to read and write – but a camera may be enough.  What really matters is zeal for the story, within the boundaries set by laws of defamation, privacy and so on.  At the very moment that a multiplicity of talents and voices, emerging thanks to new technologies, has helped to topple dictators in the Middle East, Quebec is rejecting the marketplace – of ideas, talents, desires, money and ingenuity – and trying to replace it with state-approved controls.”

Freedom of expression is a right that requires vigilance to uphold, certainly internationally, but also here in Canada.  All Canadians (not only journalists) have much to gain by nurturing and protecting that right.  Digital media has unlocked incredible creative potential within traditional media and has brought competition to the marketplace of ideas and journalism.  However, despite the many advances technology has provided and the massive potential of digital media to journalism – as we have seen – there have been some interesting, and some alarming, reactions.

Freedom of expression is not to be taken for granted – and you, the future lawyers with the best grasp of what new technology is capable of, and the best handle on how to protect the intellectual property -- the journalism – created – will have a chance to be the next wave of defenders.  It is an exciting time to be entering this field, and I wish you all the best of luck.