Coalition to intervene in Canada Supreme Court case on confidentiality of journalists’ sources

[vc_row][vc_column][vc_single_image image=”100413″ img_size=”full” add_caption=”yes” alignment=”center”][vc_column_text]Twelve press freedom, media rights, and civil liberties organizations from around the world were granted leave to intervene last month in support of Ben Makuch, a national security reporter for VICE News in Toronto, who received an order from the RCMP to hand over all communications with an alleged Islamic State fighter. The production order came after Makuch published a series of articles in 2014. VICE and Makuch have been fighting to quash the production order ever since, but it has been upheld in two lower court decisions.

The coalition argues that the protection of confidential journalistic material from compelled disclosure is a fundamental condition of freedom of the press. Without it, the vital watchdog role journalists play in a democratic society is undermined, as sources risk being deterred from sharing information of public interest with members of the press.

“If the appeal court’s ruling is allowed to stand, it will be easier for Canadian police to obtain notes and recordings from journalists, which is why we have chosen to intervene in this Supreme Court case,” said Margaux Ewen, RSF North America Director. “As one of the world’s strongest democracies, Canada must set a positive example of protecting journalists’ sources, not a negative one, by ensuring that journalists operate without government interference in their reporting. ”

“The outcome in this case will send an important signal about press freedom to other countries“, said Joy Hyvarinen, Head of Advocacy at Index on Censorship. “ It is extremely important that Canada’s courts ensure the protection of journalistic sources and safeguard press freedom.”

“At a time when the press is more threatened than ever, Canada should set an example for press freedom, said Alexandra Ellerbeck, North America program coordinator for the Committee to Protect Journalists (CPJ). “Undermining the ability of journalists to operate independently and keep their reporting product private sends the opposite message.”

“Protection of journalistic sources is essential to ensure proper investigative journalism, said Media Legal Defense Initiative (MLDI)’s Legal Director Padraig Hughes. “We hope the court will recognise that the risk to investigative journalism where the press are forced to reveal source material to law enforcement is very real, and will have a serious impact on their role as a ‘public watchdog.’”

The Supreme Court’s decision in the VICE case comes at an important time in Canada when journalists’ sources have recently been under threat. At least 13 journalists were under police surveillance in Quebec between 2013 and 2016 in an effort to identify leaks within the police force, prompting the establishment of a Commission of Inquiry which recommended stronger provincial legislation be adopted to protect source confidentiality. In October of last year, Canada’s parliament unanimously adopted the Journalistic Source Protection Act, a federal “shield law” designed to protect sources and whistleblowers. Despite the new legislation, Marie-Maude Denis, an investigative reporter for Radio-Canada, was ordered by a Quebec Superior Court in March to reveal her sources in a Quebec City corruption case. The court applied the shield law, but ultimately ruled that the public’s interest in the outcome of the trial outweighed that of journalistic source protection. Radio-Canada is currently fighting the order to compel Denis’ testimony.

The Journalistic Source Protection Act does not apply in the VICE case.

The coalition comprises Article 19, the Committee to Protect Journalists, Index on Censorship, the International Human Rights Program/University of Toronto Faculty of Law, the International Press Institute, Media Law Resource Center, Media Legal Defense Initiative, PEN Canada, PEN International, Reporters Committee for Freedom of the Press, Reporters Without Borders, and World Association of Newspapers and News Publishers.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”12″ style=”load-more” items_per_page=”4″ element_width=”6″ grid_id=”vc_gid:1526545460052-055aac87-916b-7″ taxonomies=”6534″][/vc_column][/vc_row]

Boosting Big Brother: Canada and the Digital Privacy Act

(Image: Shutterstock)

(Image: Shutterstock)

Knowledge, claimed Francis Bacon, is power. It is also money.  Which is why Canada’s newly drafted Digital Privacy Act, Bill S-4, is considered by the privacy fraternity to be a demon of some proportions.  As Gillian Shaw of the Vancouver Sun (Apr 14) explains, “If you worry Big Brother is reporting everything you do on the Internet, changes introduced to Canada’s privacy legislation last week may prove your worries are not totally unfounded.”

The bill has striking similarities to proposed US legislation that proved so contentious it wound up in the deep freeze of US Congressional contemplation.  The US Cyber Information Sharing and Protection Act (CISPA) would have granted blanket immunity to companies sharing user content with governments on the pretext of a pressing “cyber threat”.  S-4, however, goes further, increasing the sharing of such user information with parties beyond government to private organisations.

The aim of such legislation is twofold: re-enforcing copyright barriers via the umbrella pretext of fighting crime and contractual infringement while eroding privacy protections.  The snooping incentive in the case of Bill S-4 is considerable: to monitor those habits of downloading and use of material that just might breach intellectual property laws.

As with laws purportedly targeting digital piracy, it does more.  University of Ottawa’s law professor, Michael Geist, has kept his eye on developments in the area of Canadian privacy law for some time.  He is far from impressed by the latest measures on the part of the Canadian government.  “Unpack the legalese and you find that organizations will be permitted to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law” (Vancouver Sun, Apr 14).

Other effects follow on from S-4, read along with C-13 (the “cyber-bullying bill).  Immunity to organisations disclosing subscriber or customer information to law enforcement authorities, or copyright trolls, will be granted.  The mere fact that an investigation is taking place, be it into contractual breach, actual or potential, can trigger the need to disclose the confidential data of users of the service.  Those users will not be informed of such disclosure, and organisations engaging in such acts will be under no obligation to do so.

One of the amending provisions states, for instance, that “an organization may collect personal information without the knowledge or consent of the individual only if it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province.”

Geist makes various important points, noting how judicial management has been indispensable in keeping the information trawlers at bay. He cites the file sharing case of Voltage Pictures, a U.S. company which sought an order asking the internet service provider TekSavvy to disclose the names and addresses of thousands of users it claimed had infringed copyright.  TekSavvy requested the Canadian Internet Policy and Public Interest Clinic to intervene for the purposes of informing the court over privacy and copyright trolling concerns.

The disclosure was granted by the federal court, but the move came with various safeguards with the intention of discouraging copyright trolling lawsuits.  The point was considered fundamental by the court – compelling ISPs to reveal the private details of their subscribers would create a monumental strain on the court system.  Many infringements would be of a non-commercial nature, and taking these to court would see a needless use of judicial resources.  Even more significant, the cap of $5000 on liability for such non-commercial infringements “may be miniscule compared to the cost, time and effort in pursuing a claim against the subscriber.”

The court found Voltage’s conduct in seeking such disclosure potentially improper, though not sufficient to refuse the motion.  Instead, the company was asked to guarantee that any subscriber information obtained would remain confidential, not be used for any other purposes, not be made public and not be disclosed to third parties.  The fees for TekSavvy behind the disclosure would also be covered by Voltage.

The decision suggests heavy judicial oversight over the grants of such disclosure motions.  Important safeguards include court involvement over the contents of the “demand letter” sent to subscribers. As Geist notes, the letter must include the message that “no Court has yet made a determination that such subscriber has infringed or is liable in any way for payment of damages.”

S-4 would make such protections redundant, stifling court scrutiny and enabling a ready disclosure of private user information between companies.  In Geist’s words, “If Bill S-4 were the law, the court might never become involved in the case.  Instead, Voltage could simply ask TekSavvy for the subscriber information, which could be legally disclosed (including details that go far beyond just name and address) without any court order and without informing their affected customer.”

The legislative moves on the part of the Canadian government reveal the addictive nature of such copyright legislation.  Privacy is a subsidiary concern to the use of material provided by an ISP, while broadening the policing function against illegal use of information is paramount.  The current Digital Privacy Act seems a less than distant echo of the Personal Information Protection and Electronic Documents Act (PIPEDA), Bill C-29.  The government has evidently been there, but hasn’t yet done that.

Warrantless disclosure of private information is the holy grail of government regulation.  The sacrificial lamb is always the privacy of citizens. This, goes the official drum roll, is necessary to protect the public. In truth, it is designed to protect corporate legal interests and pull down the walls of data protection.

This article was posted on 23 April 2014 at

Canada: Legislation limits free speech for journalists

(Image: Shutterstock)

(Image: Shutterstock)

Canadian journalists will face fines for commenting on the striking action of trade unionists under new legislation passed in the province of Alberta. As reported by Index on Censorship earlier this week Bill 45 and Bill 46 will see heavy sanctions placed on those who partake in illegal picketing or comment publicly on those doing so. Both bills passed through their third and final readings on Wednesday 4 December, in front of a full gallery of concerned members of the public

Journalists now face fines of $500 a day for any comments made regarding support for union strikes. Alongside this, Bill 45 also limits the discussion of striking action or threats to strike by civil servants, fining unions $1 million a day unless they are able to convince a court they were not responsible for or encouraging of the striking talk.

Don Braid said in the Calgary Herald this week: “It’s hard to imagine a more blatant violation of free speech, a right that always implies a certain social anarchy to function usefully. People are not allowed to break laws, but they are permitted, except in obvious cases of threatening harm, to talk about challenging, testing, pushing or even breaking them. The offence is in the breaking, not the talking. But not for Alberta’s public unions. Talking is now pretty much illegal.”

An earlier version of this article referred to Alberta as a state. It is a province.

This article was originally posted on 6 Dec 2013 at


Canada’s record on free expression under pressure

(Photo illustration: Shutterstock)

(Photo illustration: Shutterstock)

Despite having a generally positive free expression record, Canada has, in recent years, taken some regressive steps, driven by court decisions that weakened confidentiality for journalists’ sources, obstructions to reporting during Quebec’s student protests and the introduction of a bill, which was later withdrawn, but would have allowed the government to monitor Canadians in real-time without the need for a warrant.

Conservative Prime Minister Steven Harper’s government has been criticised by activists for its tightening of access to information and slow response time to requests. Harper is accused of banning government-funded scientists from speaking to reporters about climate research.  The country’s 30-year-old Access to Information Act (ATIA) is also highlighted as an obstacle.

Canada’s Provincial governments exercise strong influence on the rights of the media and individuals. During the so-called “Maple Spring” in 2012 Quebec passed an emergency law aimed at stifling student protests against tuition increases.

Media Freedom

Cases challenging source confidentiality and various proposed bills have given free expression campaigners pause about the state of media freedom.

Currently, there are concerns about a move to foster tighter regulation of state-owned Crown corporations which would have potentially chilling effects on the Canadian Broadcasting Corporation and Radio Canada. Bill C-60 “gives the Treasury Board the right to approve Crown Corporations’ negotiating mandates, have a Board employee present at the negotiations between unions and management, and to approve the new contracts at the end of the process.“  The worry is that C-60 would lead to a deterioration of the arms-length relationship between the government and CBC, the country’s independent public broadcaster.  A group of free expression organisations are calling for the CBC to be exempt from the Bill.

Canadian Journalists for Free Expression’s 2012-2013 report outlines a systemic failure of the Canadian government to respond to requests for information, particularly around climate change research. The report details that some government-funded scientists must seek permission from the country’s Privy Council before speaking to the press – even in cases where the research is already published. As CJFE points out, delayed information often leads to journalism denied. The group singles out the Department of Fisheries and Oceans for seeking to muzzle its scientists.

Two 2010 court cases have dealt with journalistic privilege head on. While Canada’s Supreme Court Justices have stopped short of offering blanket confidentiality, they have stressed that compelling journalists to reveal sources should be extraordinary and not the rule, recognizing that investigative reporting plays an important role in society. Instead, tests should be applied on a case by case basis. In addition, the court ruled that journalists have the right to publish confidential material from a source — even when the source has no right to divulge the information or has obtained it by illegal means.

Digital Freedom

With widespread access and improving infrastructure for native groups in the country’s far north, Canada’s digital freedom environment can be seen as healthy. However, government efforts to monitor online activity in the name of security, a growing concentration of bandwidth ownership and outdated laws on privacy have troubling implications.

Digital freedom has risen to the forefront of concerns in Canada. Introduced in 2012, Bill C-30 would have allowed real-time surveillance of Canadians. The law was attacked as an unprecedented intrusion in the online life of Canadians and would have forced internet providers to install costly systems to track web usage. After being recast as a proposal meant to protect children from exploitation, the bill was eventually withdrawn in February 2013.

In February 2013, Canada’s government shelved Bill C-30, the Lawful Access Bill, in the face of widespread condemnation. Among other things, the proposed law would have allowed warrantless online surveillance. While the government presented the law as a child protection measure, opponents focused on the population-wide intrusion into the online lives of all Canadians. The bill would have also forced communications companies to undertake a costly implementation of technologies to monitor and record internet traffic. The abandonment of the bill was hailed as a victory by free expression advocates.

Canada’s Canada’s Personal Information Protection and Electronic Documents Act, which is an outdated 2001 law on consumer privacy is also a threat to digital freedom. The country’s top official on privacy, Jennifer Stoddart, has asked the government to give her the power to fine companies found to be in breach of rules. At present, companies are not required to disclose personal data breaches.  Bill C-12, would have amended the law, but failed to move forward after its second reading in the Canadian Parliament. However, that proposal also drew criticism from open internet activists because it would give police access to user information without judicial oversight or notification to the affected party.

Artistic freedom

Artistic freedom in Canada is protected by The Constitution Act of 1982, which contains the Canadian Charter of Rights and Freedoms.

Artistic endeavours often encounter difficulty in Canada due to a lack of available stable funding from the private sector. This can result in a reliance on federal or provincial funding, which means that governments can try to rein in artistic work they feel is controversial by threatening to withdraw funding.

In 2010, the government pulled funding from the Toronto theatre and music festival SummerWorks, after it displayed a play the government felt glorified terrorism. SummerWorks efforts were seriously damaged as a result — government funding accounted for 20 percent of the festival’s finances. Funding was later restored in 2012.

The Ontario Film Review Board, a governmental body once known as the Board of Censors when established in 1911, answers to the Minister of Consumer Services. Its activities are supported by the Film Classification Act, 2005.

In April 2007, after much dispute amongst the artistic community in Canada, MPs removed the artistic merit defence from Canada’s Criminal Code. The defence was originally granted by the Supreme Court of Canada in 2004, but Conservative MP Pierre Lemieux attempted once again to table the Private Member’s Bill C-430, which would remove artistic defence and replace it with public good.

This article was originally published on 16 Aug 2013 at Index on Censorship: The voice of free expression