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Media and the Law
The media are the means by which we receive information we want and need. Over time, town criers and clay tablets have given way to printed text. Now, a wide variety of aural and visual information is conveyed to us in bits and bytes through a number of intermediaries.
Democracies function on the basis of a free exchange of information. Their constitutions generally recognize this. In 1967 the Canadian Constitution imported freedom of the press from the unwritten British Constitution. Now section 2(b) of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS enshrines "freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication" as a fundamental constitutional freedom here.
While freedom in Canada has always been considered "freedom governed by law, "the fundamental freedoms under the Charter are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." In recent years, the SUPREME COURT OF CANADA has used the Charter to strike down a number of limits imposed by statute, and has rewritten others imposed by judge-made common law. One example is the declaration by the court in 1989 that the Alberta prohibition on reporting the contents of a statement of claim (a publicly available court document which initiates a civil law suit between 2 persons) was unconstitutional. Another is the reformulation of the common law rule applying to the consideration of publication bans on court proceedings.
Limits on Freedoms
Limits come in many forms. Some limits apply to all media, other to particular media and still others to individuals communicating on their own.
The law of defamation is a general limit on unfettered speech (see DEFAMATION). Apart from Québec, where the civil code applies, if one person writes or otherwise records and distributes a message that lowers another person in the estimation of the community, then he or she must be prepared to prove to a court, using admissible evidence, that the message is more likely than not true. Expressions of opinion can be defended, instead, as fair comment on a matter of public interest.
Defamatory messages can also be conveyed regardless of their ultimate truth if they are contained within fair and accurate reports of proceedings to which the public is normally invited, such as public proceedings of government institutions and public meetings. Such reports are made on an occasion of "qualified privilege." Both the fair comment and qualified privilege defences can be defeated by evidence that the reporter or speaker spoke with malice, which in Canadian law means ill will, spite or a reckless disregard of the truth or falsity of the statement made. Apologies both admit and mitigate damages.
Unlike the United States, there is no qualified privilege in Canada to defame a public official or public figure provided the speaker has no actual knowledge of the falsity of the message conveyed. Actual knowledge of falsity is what is known as "malice" in the United States. In Canada, individuals can comment on the public facts about a public official relying on the defence of fair comment, provided that the facts are known provable, fairly stated (if they are set out), linked to the comment, the comment is honestly made and the comment itself is on a matter in the public interest. The philosophy of this defence is that if the public is armed with the facts and understands that the message conveyed is a comment on those facts, the public can decide for itself whether to accept or reject the comment as fair. On this basis, the defence of "fair comment" protects comments that many would regard as outrageous, ridiculous or obstinate.
In Québec, reporters can rely on the truth as a defence only on matters of public interest. Generally, in that province, reporters can defend their reports on the basis that they met the standard of care that a "reasonable journalist" would have met in his or her work. Other general limits on expression are laws of privacy and criminal law (criminal libel, hate propaganda, OBSCENITY and COPYRIGHT). Each of these legal regimes has particular provisions dealing with publishers, as well as, and as distinct from individuals. A defence to a suit for invasion of privacy, for example, according to all Canadian provincial privacy laws (Newfoundland, Québec, Manitoba, Saskatchewan and British Columbia), is that there were reasonable grounds for belief that the publication was in the public interest. That does not generally excuse an invasion of privacy by which the material in question was obtained.
Media Restraints
The media argue against prior judicial restraint of their publications, but are not always successful. It is almost impossible to stop a defamatory publication in advance. It is difficult to prove in advance what someone is going to say, and the law prefers to permit free expression and mete out consequences later. Anticipated invasion of privacy, breaches of confidence or breaches of contract have occasionally been restrained.
Certain kinds of information cannot be published even though they can be widely discussed (see OPEN COURTS AND PUBLICATION BANS). Other kinds cannot even be spoken. Clearly, if the media cannot get access to information, it cannot publish it. It is a crime, for example, for jurors to speak of what happened in their proceedings in the jury room, with few exceptions. In the United States, this kind of information is routinely reported.
The media are affected by ACCESS TO INFORMATION laws federally, and in most provinces. Each of these was enacted with corresponding provisions protecting the confidentiality of personal information in government hands. As a result, whereas once government information was given or denied to the media arbitrarily by government officials, now its release is regulated. Some information previously denied can now be obtained. Other information previously available is being denied.
The media often collect information which they have not published but which others may want. As a result, the media find themselves often in the position of trying to protect their unpublished journalistic work product and their confidential sources of information from the forced disclosure in court. Source protection has been recognized in many provinces at the discovery stage of defamation litigation following a rule of practice known as the "newspaper rule." There is implicit protection for newsgathering in s2(b) of the Charter, but the closest the Supreme Court has come to making it explicit is in requiring that special attention be paid to balancing media concerns against those of law enforcement in the context of applications for search warrants against the media.
Media Regulation
To deal with limited broadcast spectrum and, more recently, limited cable and satellite delivery potential, Canada has regulated broadcasting and telecommunications for many years. The Canadian Radio-television and Telecommunications Commission (CRTC) has enacted a number of regulations addressing the content of broadcasts. Broadcasters must not broadcast, for example, "any abusive comment or abusive pictorial representation that, when taken in context, tends or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability," or "any obscene or profane language or pictorial representation" or any "false or misleading news." Commercial advertising and partisan political election material are also regulated.
Broadcasters are also required by the CRTC to adhere to guidelines developed and administered by the industry relating to sex-role portrayal, violence, advertising of alcoholic beverages and advertising to children by regulation or as a condition of licence. In most cases those guidelines were developed at the instigation of the CRTC itself.
In addition, the CRTC determines who can be a Canadian broadcaster, requires Canadian broadcasters to meet Canadian content criteria in the creation of their broadcast schedules and determines which non-Canadian television services may be distributed to Canadians by cable, satellite and other distribution companies.
Apart from laws of general application, there is no equivalent regulation of the printed press. Canadian information services on the Internet, however, distribute not only text, but also audio-visual information, and are not yet regulated in that regard. Expanding distribution technologies raise questions about the need for, and the ability to have, continuing regulation. Regulation by other countries of INTERNET content may affect content creation and distribution in Canada.
On the other hand there are a number of legal provisions designed to encourage Canadian creative production and cultural industries, such as television, feature films, video, music, books, magazines and newspapers. There are production funds, tax incentives and international treaty arrangements, including special cultural protections built into the Canada-US Free Trade Agreement, and the North American Free Trade Agreement. There are also legal regimes supporting Canadian performers', writers', composers', musicians' and various artists' collectives.
