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By JASMINE BALA
Staff reporter

Ryerson journalism professor Lisa Taylor, co-editor of The Unfulfilled Promise of Press Freedom in Canada.

Threats to press freedom are actually threats to the public’s right to know, says the co-editor of a new book that examines efforts to undermine Canadian journalists’ abilities to do their jobs.

Lisa Taylor, a lawyer, award-winning journalist and assistant professor at the Ryerson School of Journalism (RSJ), said that the discourse surrounding press freedom in recent years is worrisome because it overlooks the real cost of restrictions on journalistic work.

“Journalists don’t seek access to information so that they can just talk to other journalists about it,” Taylor said. “The end game is in sharing it with the public, and I think somewhere along the line we’ve lost sight of the idea that all the media are is a surrogate for the public.

“The public can’t drop everything and go to court for a day. The public can’t make it their job to spend weeks tracking down information and accessing it through Freedom of Information (FOI) requests. Journalists don’t do it to benefit journalists, they do it to benefit the world at large. Press freedom is not really a freedom for the press, it’s a freedom for the people who receive information from the press.”

The Unfulfilled Promise of Press Freedom in Canada, edited by Taylor and Cara-Marie O’Hagan, the former director of the Ryerson Law Research Centre, is a collection of essays by academics, journalists, lawyers and others. The edited volume, Taylor writes in an opening note, explores how press freedom has been constrained by “governmental interference, threats of libel suits and financial constraints.”

Taylor said the chapters examine press freedom “from many different angles,” an approach that makes it different than other books on the topic.

“It was exciting because I think often academics write stuff that only other academics read, or journalists write about this issue and academics don’t bother with what journalists have to say about it,” Taylor explained. “So as someone who has been a journalist, works as an academic and has worked as a lawyer, it was, quite selfishly, really exciting to pull together these three worlds that I’ve inhabited.”

Contributors to the collection include RSJ professors Ivor Shapiro and Gavin Adamson, City of Vaugan integrity commissioner Suzanne Craig, court reporter Robert Koopmans and former CBC media lawyer Daniel Henry. They cover topics ranging from press freedom and privacy in the digital sphere to reporters’ access to information during court proceedings and the press freedom provisions of the Canadian Charter of Rights and Freedoms.

Taylor’s own chapter discusses the difficulty of rescinding publication bans on the identity of sexual assault complainants who want their bans lifted. These bans automatically come into effect if either the prosecutor or the complainant ask for it. Not only do the bans prevent media from publishing the identity of complainants, Taylor writes, they also prevent complainants from identifying themselves as sexual assault survivors during and after proceedings. This impedes the complainant’s charter rights under section 2(b), she continues, which states that everyone has the “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

“What happens is, if we have a willing sexual assault complainant who would like to speak to the press they are prevented from speaking publicly,” Taylor said in an interview. “[This] means that the press is also prevented from disseminating their words. So it’s just another way in which press freedom is hampered.”

Taylor suggests a more flexible approach is required, one that will “ensure that the complainant who wants to have the protection of the statute will still have that opportunity, while the complainant who chooses to speak out will be able to exercise the rights she is guaranteed under the charter.”

The book draws on papers presented during Press Freedom in Canada: A status report on the 30th anniversary of the Charter of Rights and Freedoms, a 2012 conference organized by the Ryerson Journalism Research Centre.

When the charter was put into place in 1982, Taylor said, it looked like journalists finally had the guarantees of press freedom they needed. As it turned out, however, that was an overly optimistic assessment.

Before the charter was enacted, “we saw unfair restrictions on the press [and] we saw simple FOI applications take weeks, months or even years to be fulfilled,” Taylor said. “Back when it was first enshrined, there’s no way I could have imagined that in 2017 we’d be fighting a lot of the same battles. It just looked like it was on its way out. There was great promise that came with the charter and we just haven’t seen it fully realized. In fact, we’ve seen some back steps.”

Media lawyer and Ryerson School of Journalism adjunct professor Brian MacLeod Rogers. (Paul Lawrence courtesy Ryerson School of Journalism)

By JASMINE BALA
Staff Reporter

The European Court of Justice’s 2014 ruling on the “right to be forgotten” (RTBF) doesn’t just affect search engines, it also has implications for journalists, said Ryerson University School of Journalism adjunct professor and media lawyer Brian MacLeod Rogers.

In 2014, the court ruled that individuals have the right to ask search engines, such as Google, to remove links with personal information if the details are inaccurate or no longer relevant. Search engines have to make case-by-case assessments of requests under EU law.

The decision, Rogers said in an interview, also had implications for reporters in European newsrooms. Journalists there, he explained, have reason to fear that the right could “impact free expression and the ability of news organizations to publish” and to keep information published as a complete historical record.

The ruling has not yet affected Canadian journalists directly, Rogers said. But, he added: “I think that it certainly focuses on an issue that has been a subject of great concern and debate, and that is unpublishing generally.”

Unpublishing is just one of the potential implications of the RTBF idea that is explored by Rogers and Ryerson University School of Journalism professor Ivor Shapiro in a recent paper published in Digital Journalism. The researchers define unpublishing as “retrospective redaction of error-free news reports.”

Researcher and Ryerson School of Journalism professor Ivor Shapiro. (Courtesy Ryerson School of Journalism)

The paper, “How the ‘Right to be Forgotten’ Challenges Journalistic Principles,” not only explains the law that now applies in Europe, but also explores how its core ideas might help journalists resolve dilemmas that they face increasingly often.

“We tried to set out some of the legal principles and the ethical principles behind this decision,” Shapiro said, “to make some suggestions to journalists as to how to handle questions of unpublishing and informed consent.”

Although journalists traditionally resist unpublishing, the increased frequency of requests from members of the public for the removal of articles about themselves has journalists reassessing their practices, explains Shapiro and Roger’s report.

Unpublishing requests often come from people who have previously been accused of crimes and want details of these past accusations erased from online history. “Crime reporting is notoriously episodic and often left unfinished in the public record,” the authors observe in their research paper.

“Individuals who’ve been named in those earlier stories are coming up in [Internet searches], and people getting those results don’t see what happened to the charges and the fact that they may have been thrown out,” said Rogers.

Although unpublishing requests aren’t new, they have become much more frequent as web searches become part of daily routine, Rogers and Shapiro wrote. Meanwhile, journalists are slowly changing their practices with the knowledge that the stories they publish will remain on the web—in some form—forever.

Rogers and Shapiro’s paper describes how, in one journalism ethics class co-taught by the two authors, a news reporter said that “he and a colleague had decided to include a video of a criminal act, showing the face of the alleged perpetrator, but decided against including that person’s full name in the written report. Their grounds for doing so: a face on video will not show up in name-based search results.”

If this had been an old-fashioned print story, explained Shapiro, the journalists would probably have just used the alleged perpetrator’s name. “There’s no possible libel case because they have the crime actually captured on video. So from a legal view, it doesn’t matter whether they use his name or not.”

The RTBF issue has also prompted discussions among journalists about informed consent. Just like unpublishing requests, the concept has traditionally been neglected in journalistic practice, the paper says. Today, however, some journalists are doing more to ensure that sources understand how a story’s appearance on the web could potentially harm them.

Journalists who seek informed consent from sources, the authors wrote, show “an attitude of greater consideration toward ordinary citizens” by explaining the long-term implications of publication.

“I’m not saying that every journalist, before talking to a source, needs to get them to sign a waiver indicating their awareness of all the personal consequences of an interview,” said Shapiro. “But I am saying that the discussion around consent needs to take into account the nature of the personal harm that can come to the person and the means by which [we ensure] that the person is aware of the personal harm that can result.”

As for the law in Canada, the right to be forgotten is unlikely to become a fixture here soon, said Rogers—at least not outside Quebec.

Europe has a long-established legal framework for protecting privacy, Rogers explained, as does Quebec. Litigation in this area is governed not by judge-made common law, but by a civil code and a Charter of Human Rights and Freedoms which, like the European human-rights convention, explicitly includes the right to privacy and the right to reputation. “And I think that there is, to some extent, a different sensibility about privacy and certainly different judicial reasoning around the issue of privacy,” Rogers said.

In common-law Canada, he added, civil rights complaints fall under provincial jurisdiction, so introducing a right to privacy would require the federal government to work with the provinces.