History of the free press
The creation of a Western free press was the work of centuries, starting roughly in the 1600s. Only by the end of the 19th century would a free press, along modern lines, be established. In England, the press had to overcome, in the following order:
• Opposition from monarchs
• Opposition from Parliament
• Opposition from the courts, and cases brought to court
All three opponents used a daunting variety of controls on the press. This section describes controls used in the 17, 18, and 19th centuries, followed by a list of international treaties formed during the 20th Century.
> 17th century
> 18th century
> 19th century
> Treaties on free speech
17th century: Authoritarian controls
Officials view the printing press as a device to be used in support for the monarch and other authorities. At the least, the press was to print material that was politically neutral and did not question the establishment. It was the king’s prerogative as to who would own and operate a printing press. Systems of censorship and press licensing were set up in an attempt to control the increasing flood of new books, broadsides and pamphlets since Gutenberg’s printing press in the mid-1500s.
Pre-publication Controls in England
1. Licensing of books and papers
2. Restrictions on presses, and printers
3. Submission of papers to censor prior to publication
4. Freedom to speak limited to king’s circle; limited right in Parliament; reportage of parliament illegal.
5.Harsh penalties for illegal or offending publications:
• Seizure and smashing of presses
• Revoking license; financial penalty
• Jail for seditious or criminal libel
• Physical attacks on editors
Seminal events challenging controls: 17th century
1. Emergence of liberal ideas, such as:
• John Milton’s argument for end of licensing (truth beats falsehood), Aeropagitica, illegal tract against censorship in 1644.
• English Bill of Rights (1689); more restrained monarchy after “glorious revolution”
• John Locke’s idea of tolerance, government by consent; free speech as a natural right not given up when society formed.
2. End of licensing law in England, 1694: explosion of new papers. Pre-publication controls wither.
top
18th century: public sphere and the press
Early 1700s: Freer public sphere in England, serviced by new unlicenced press. Press claims to represent the “public” and liberty.
Reporting on Parliament allowed in 1771; stimulates growth of reporting and public scrutiny.
Constitutional guarantees: Freedom of press protected by American and France constitutions.
Response to radical press:
England: Government repression of radical press in late 1700s; fear of revolution
France: Napoleon extinguishes the last flames of press freedom in France after revolution; applies same repressive measures on the press in all of the European countries that he conquers.
Constitutional protection of free press
U.S. Constitution — First Amendment, 1791:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press; of the right of the people peacefully to assemble, and to petition the government for a redress of grievances.”
Declaration of the Rights of man and Citizen (French National Assembly, 1789)
Article XI:
“The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.”
Libel threat weakens.
As the battle for English public opinion is waged between government and journalists in the 1700s, the threat of libel declined.
The libel threat:
• The most serious threat was seditious and criminal libel which could lead to arrest, seizure of press, fines. The English government also used “general warrants” (no specific names on the warrant) to search many offices.
• Libel was a powerful charge because truth was not a defence, and the jury decided only whether the printer did, in fact, publish the libel. Conservative judges ruled on the damages.
But reformers grew bold in the 1700s, while government began to lose key cases:
• Cato’s letters (1720-1723): Anonymous letters in English papers calling for liberty of press, critical of government.
• US publisher John Peter Zengler cleared of libel against the governor of New York (1735).
• Letters of Junius (1769-1772): Anonymous letters in London paper criticizing George III’s regime on behalf of the “people.”
• John Wilkes, MP and editor of The North Briton newspaper(1763), acquitted of libel charge laid by government.
Meanwhile, the threat of libel was weakened when Fox’s libel law passed in 1792 increased the power of juries, who were increasingly inclined to side with editors who were charged.
The Fourth Estate
Toward the end of the eighteenth century, Edmund Burke, theorist of the English constitution, rose in Parliament to talk about a new player in democracy – a fourth estate. Thomas Carlyle reported Burke’s comments:
“Burke said there were Three Estates in Parliament; but in the Reporter’ Gallery yonder, there sat a Fourth Estate more important than they all. It is not a figure of speech, or a witty saying; it is a literal fact – very momentous to us in these times. Literature is our Parliament too. Printing, which comes necessarily out of Writing, I say often, is equivalent to Democracy; invent Writing, Democracy is inevitable … Whoever can speak, speaking now to the whole nation, becomes a power, a branch of government, with inalienable weight in lawmaking, in all acts of authority. It matters not what rank he has, what revenues or garnitures: the requisite thing is that he have a tongue which others will listen to; this and nothing more is requisite. The nation is governed by all that has tongue in the nation. Democracy is virtually there.”
From Carlyle, On Heroes, Hero-worship and the Heroic in History, 141.
top
19th century: The liberal papers
The modern free press emerged in the 19th century across Europe, North America and elsewhere as part of the growth of liberalism and democratic reform. The idea of a liberal press was spread across the English empire, as onerous press laws gradually weakened or were eliminated.
Liberal papers pressed for a free economy and a free marketplace of ideas, including a maximally free press. Liberal creed stated forcefully by John S. Mill in On Liberty (1859).
Removal of forms of control:
1. Taxes: In England, taxes on papers to control the spread of ‘mass’ or popular newspapers finally removed by the mid-1800s.
2. Government regulations: Across Europe, many press regulations were eliminated by the 1880s.
3. Libel: Legal decisions reduce libel from criminal to common law; truth was recognized as a defence; courts recognized the right of the press to criticize government and its ministers.
Treaties on free speech
In the 20th century, a significant, modern development of free speech and free press rights has been their inclusion in international treaties and international law.
U.N. Declaration of Human Rights (1948), Article 19:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
http://www.un.org/Overview/rights.html
U.N. Covenant on Civil and Political Rights (1966), Article 19:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers; either orally, in writing or in print, in the form of art, or through any other media of his choice. The exercise of the rights provided for in this article carries with it special duties and responsibilities. It may therefore be subject to restrictions, but these shall only be such as are provided by law or are necessary
:• For the respect of the rights or reputations of others
• For the protection of national security or of public order or of public health and morals
UN Covenant on Civil and Political Rights (1966), Article 20:
Article 20 prohibits:
Any propaganda for war shall be prohibited by law. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
http://193.194.138.190/html/menu3/b/a_ccpr.htm
Regional Human Rights Treaties
European Convention on Human Rights (1953), Article 10:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevent of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
http://www.hri.org/docs/ECHR50.html
Western Hemisphere
American Convention on Human Rights (1969)
Article 13:
“Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or though any other medium of one’s choice”
“The exercise of the right shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure . . . Respect for the rights or reputations of others, or . . . the protection of national security, public order, or public health or morals.”
Also forbids: indirect restrictions on media communications through government or private control of newspaper supplies, or assigning of broadcast frequencies. Also forbids propaganda for war or hatred of groups.
Article 14: media must recognize a right of reply to those harmed by their communications http://www.oas.org/juridico/english/Treaties/b-32.htm
African Charter of Human and Peoples’ Rights (1981)
Article 9: ” Every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law.
Article 27: Duties of each individual to family, society, the State and other governmental entities, and the international community and requires each person exercise their rights with regard for the “rights of others, collective security, morality and common interest.”
Article 29: The individual has the duty, “To serve his national community by placing his physical and intellectual abilities at its service . . . (and) to preserve and strengthen social and national solidarity, particularly when the latter is threatened.”
MEDIA LAW
Introduction to media law
Ethics and law
Ethics and law are separate spheres but they overlap in theory and practice. In theory, ethics justifies laws and legal practices (see the section on Nature of Ethics).
Situations in journalism raise both legal and ethical questions. In many newsrooms, whether an action is legal is considered to be the first hurdle that any action must clear, before ethical issues are raised. Also, ethical standards such as fairness and accuracy are used in court cases to evaluate stories for libel and other legal problems.
How free is the Canadian press, legally?
From a legal perspective, the “freedom of the press” is guaranteed constitutionally by Section Two of the Charter of Rights and Freedoms. But the charter also states in Section One that fundamental freedoms in a democracy can be limited for justifiable reasons. Hence, press freedom is not absolute, legally.
Canada: Charter of Rights and Freedoms (1982)
Section 1: Guarantee of Rights and Freedoms“The 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.”
Section 2: Fundamental Freedoms“Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.”
Restrictions
In addition, there are many laws, criminal and common, provincial and federal that place legal restrictions how the press gathers information and what it publishes. Some of these laws and procedures are:
1. Court decisions involving news media, based on the Charter
2. Criminal laws: against trespass and recording communications; to force journalists to reveal their confidential sources, to appear as court witnesses
3. Restrictions on trial coverage, such as publication bans on evidence and identity of witnesses.
4. Search warrants and injunctions: warrants to search newsrooms and homes of reporters. Injunctions to stop publication.
5. Civil or non-criminal law: The main restriction is defamation law, but there is a host of other restrictions in covering family court, disciplinary tribunals and so on.
6. Restrictions on newsgathering and publication due to:
• Anti-terrorism laws
• Elections Act
• Young Offenders Act
• Privacy laws and access to information laws
• Copyright law
• Broadcast law and decisions of regulators
The Federal and Provincial Justice Department sites are a resource for laws, changes to laws and background on the legal system. The federal Department of Justice is at www.canada.justice.gc.ca
Criminal Code online http://laws.justice.gc.ca/en/C-46/index.html
Role of the Charter of Rights and Freedoms http://laws.justice.gc.ca/en/charter/
Media lawyers promoting free speech www.adidem.org
Common legal terms
Confused by legal mumbo-jumbo? Following are definitions of key terms, taken in part from Michael Crawford’s A Journalist’s Legal Guide, 4th ed. Toronto: Carswell, 2002.
Affidavit
A written statement of facts sworn under oath, based on personal knowledge, not hearsay.
Amicus curiae
Latin for “a friend of the court.” The court allows an outside party with an interest in the case to present their views.
An “information” and indictment
An “information” is a sworn statement charging a person with a criminal offence. Usually the first document presented to a judge of a lower court. An “indictment” is an information written for a higher court (e.g., superior court).
Appellant
The party appealing a decision; the other party is the “respondent.”
Circumstantial evidence
A consistent set of facts that do not directly prove the case but, by deduction, tend to lead one to a conclusion.
Damages
Compensation claimed or awarded for damage. Compensatory damages replace actual loss; punitive damages punish the wrongdoer and can be added to compensatory damages.
De facto/de jure
De factor is Latin for “in fact”; De jure is Latin for “in law” or ”in principle.”
“Defendant” or accused
Under criminal law, the person(s) or entity charged.
“Crown” or “the Crown”:
The state, as represented by the prosecuting attorney
Ex parte
Latin meaning “from one side.” A court may grant an ex parte injunction to stop an act when time is of importance even though only one side is heard.
Factum
A lawyer’s brief that states the facts in a case.
Fiduciary
Person who agrees to act for the benefit of another (e.g., a trustee).
Habeas corpus
Latin for “you must have the body.” Ancient writ to demand the delivery of a person in custody to court, to prevent lawless detention.
Injunction
Court order commanding someone to do or not do some act.
Hearsay and innuendo
Hearsay is evidence of a person not at trial to testify as to its veracity, e.g. “John told me he saw Mary at the hotel.” Rarely allowed as evidence. An “innuendo” is an implication or suggestion.
Malfeasance
A wrongful act. “Nonfeasance” means the wrongful omission of a duty.
Obiter dictum
Opinion by a judge on an issue not important to the resolution of the case and not binding on other courts.
Prima facie
Latin for “on first appearance.”
Reasonable person
A standard for behaviour that courts expect from people. This person is fair, rational and avoids damage due to negligence.
Standards of evidence or proof
· “Balance of probability”: The standard of proof in civil cases, meaning the claim in all probability is true; that is, the probability is more than 50%.
· “Beyond a reasonable doubt”: The stronger standard used in criminal cases, meaning clear proof beyond a reasonable doubt.
Sub judice:
Latin for “before the courts”. If a case has entered the judicial process, this is, in effect, a warning not to do anything that might jeopardize a fair trial.
Subpoena:
Court document ordering a person or thing to be presented to a judge at a given time and place.
Third party
Person who is not party to an agreement or event, but has an interest in it.
Tort
A civil wrong (e.g., defamation) that violates a duty imposed by law.
Voire dire:
A trial within a trial to determine the admissibility of some form of evidence, with the jury not present in the court room
Voire dire
A trial within a trial to determine the admissibility of some form of evidence, with the jury not present in the court room.
Writ:
A court document authorizing an act or making an order.
Criminal and civil law
Criminal law
Laws that apply to wrongful behaviour so serious as to be considered crimes, punishable by the state, e.g., fraud, murder. Criminal matters are not “civil” disputes between private parties in society. They are matters that concern the state and its criminal justice system. In Canada, criminal law (unlike common law) is federal law, and it applies across Canada, under the Criminal Code of Canada. Federal government makes all criminal law. Provinces cannot make a law with a penal sanction. In a criminal trial, the Crown prosecutor acts for the state against the defendant. If convicted, the defendant has committed a crime.
There are two levels of criminal offences: Summary or indictable. Indictable: an offence that is punishable by jail of two years of more. Summary: maximum fine of $2,000 and/or six months in jail . Civil (private) law that apply to wrongful behaviour but are not treated by the criminal system. In many cases, courts, using civil laws, resolve disputes between individuals (or groups).Civil laws can deal with relations between persons, unions, companies or organizations. Examples of civil laws are breach of contract law, libel law, divorce law, property law, corporate and commercial law, labour law and copyright law.
Civil laws are not uniform across Canada but vary by province, e.g. libel law. While civil law in Canada outside Quebec is based on the tradition of English common law, which stresses previous decisions, traditions and precedents, the Quebec civil law is based on the Napoleonic code, which stresses principles.
A violation of civil law is not a crime against the state. A civil case is between a plaintiff and defendant (not between “accused” and Crown, as in criminal cases). In a civil suit, no one is found guilty or not-guilty. Rather the court “finds” for or against one of the parties and issues a settlement, which could include a fine to cover monetary and other damages. The standard of proof in civil cases is a “balance of probabilities,” which is weaker than the standards of “beyond a reasonable doubt” in criminal cases.
For more on the difference between criminal and civil law, see http://laws.justice.gc.ca/en/C-46/index.html
Basic court procedures (in chronological order):
Civil proceedings
1. Notice of “Intention to Sue”: usually required within a specified time period.
2. Notice of Action or “writ”: a special document signalling the formal start of a lawsuit. All parties named.
3. Filing of “pleadings”: the statement of allegations and claims, followed by statement of defences, within time periods. Journalists can report, but claims often exaggerated.
4. Examination for Discovery: Chance for each side to question the other on facts of the case. Closed to public.
5. Pre-trial conference: Judge may attempt to settle dispute or procedural issue by meeting with both sides.
6. Trial: By judge or jury. Open to public.
7. Appeal: usually must occur within 30 days.
Criminal Court Procedures
1. Investigation and Arrest/Charge
2. First appearance: usually procedural: determination of type of offence, level of court.
3. Bail Hearing (where necessary): Ban on publication on evidence.
4. Preliminary hearing (indictable offences only): usually a ban on publication until trial is over, or the accused is discharged.
5. Trial: Moves from presentation of evidence to judges charge to jury (where jury exists) to verdict to sentencing (if found guilty). During the trial, there may be a voir dire over admissible evidence. Jury sent out of court. Can’t publish until jury retires to consider verdict.
6. Appeal
Covering the courts
Journalists can run into trouble when covering the courts in a number of ways. These violations come under the title of “contempt of court”:
• misbehaving in court (e.g., recording proceedings where prohibited; causing a disturbance)
• violating a court order (e.g. violating a publication ban)
• violating the principle of “sub judice”: if a case is before the courts, it is risky to publish anything that may
jeopardize a fair trial.
• “scandalizing” the court (e.g.. questioning the objectivity or character of the judge)
Publication bans
The proliferation of court-ordered publication bans is a serious issue in Canadian media law. The advent of on-line journalism makes many bans, such as the ban on evidence at preliminary hearings, extremely difficult — if not impossible — to enforce.
Types of publication bans:
Automatic: Judge does not have to make an explicit ruling. For example, there are automatic bans on the identities of young offenders, on evidence during a voire dire, and on confessions by defendants (entered as evidence during a preliminary hearing).
Mandatory: Judge imposes a ban if requested by the prosecutor or the defence. For example, evidence at a bail hearing or the name of a victim of sexual assault.
Discretionary: Ban is tailored to the specific case and its circumstances
Journalists should be especially alert to possible bans at:
• Preliminary hearings and bail hearings
• Voire dires (see legal terminology section)
• Young offender cases
• Charges involving sexual assault
• Custody and family matters
Why attend preliminary hearings if there is a ban on evidence?
• If the accused plea bargains, or the hearing ends abruptly, journalists can publish evidence.
• Otherwise, journalists can publish evidence when trial ends.
• Journalists should be in court to act as public watchdog on the justice system.
• To gain important background on the case before a trial starts.
The Dagenais Case
In 1994, the Supreme Court of Canada handed down a landmark ruling on publication bans and news media in the case of Dagenais versus Canadian Broadcasting Corporation. The ruling dealt with limitations on the scope of bans and it named factors that courts must consider before issuing bans that might infringe on freedom of the press. In a 6-3 ruling, the court ruled that the freedom of the press can be of equal or greater importance as the right to a fair trial.
The Dagenais case arose from a cross-Canada publication ban against the broadcast of a fictional drama, “The Boys of St. Vincent,” set in Newfoundland, which portrayed child sexual and physical abuse in a Roman Catholic orphanage. The ban was issued by a lower-court judge after hearing an application by lawyers for four members of a Catholic order in Ontario charged with the sexual and physical abuse of young boys in Catholic training schools.
The judge reasoned that since the men would face trial soon in Ontario, the TV drama could jeopardize their fair trial rights. The judge ruled that the drama could not go to air until after the four trials, and he also agreed to ban any publicity about the application for the ban. The CBC appealed, but the appeal court agreed with the lower-court decision. However, the appeal court did limit the ban to Ontario and Montreal and it did away with the ban on publicizing the original ban.
The Supreme Court ruled that in “post-Charter Canadian society” the common law principle of protecting against a fair trial “does not provide sufficient protection for freedom of expression.” The court laid down a “modified rule” that a ban should be issued only when:
• Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and
• The salutary effects of the public ban outweigh the deleterious effects of the free expression of those affected by the ban.
The court said the issue is which constitutional right is more important at the time of application. The party, Crown or accused who wants a ban bear the burden of justifying this limitation on freedom of expression. Also, the judge issuing a ban must keep it as limited in scope as possible.
The court noted that judges need to consider seriously alternate measures to bans, such as changing trial venues, sequestering jurors, allowing challenges and voire dires during jury selection, and providing strong direction to juries.
The supreme court listed reasons as to why publication bans are not healthy for the justice system as a whole, because not ordering a ban may:
• Prompt persons with relevant information to come forward
• Prevent perjury by placing witness under public scrutiny
• Prevent state or court wrongdoing by putting the justice system under scrutiny
• Promote public discussion of important issues.
