Canadian ruling in VICE Media case sends wrong signal on press freedom

[vc_row][vc_column][vc_column_text]Index on Censorship is disappointed that Canada’s Supreme Court has upheld a decision by lower courts that requires a journalist with VICE Media to hand over materials related to communications with a journalistic source. A coalition of 12 press freedom and civil liberties groups from around the world, including Index, intervened in the case.

The journalist, Ben Mackuch, wrote articles based on interviews with a suspected terrorist, which led to the Royal Canadian Mounted Police requiring him to hand over all communications with the suspect.

The case raised important issues related to the confidentiality of journalists’ sources. The coalition argued that the protection of confidential journalistic material from compelled disclosure is a fundamental condition of freedom of the press. Without it the 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.

Jodie Ginsberg, Index on Censorship CEO, said “The Supreme Court of Canada should have given greater weight to protection of journalistic sources, because it is essential for protecting press freedom. This is a disappointing outcome, which sends the wrong signal to other countries.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1543840257753-4c278ff0-3cc9-4″ taxonomies=”6534″][/vc_column][/vc_row]

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]

Advocates from five nations demand their governments respect strong encryption

Today, 84 organisations and individuals from Australia, Canada, New Zealand, the UK and the USA sent letters to their respective governments insisting that government officials defend strong encryption. The letter comes on the heels of a meeting of the “Five Eyes” ministerial meeting in Ottawa, Canada earlier this week.

The “Five Eyes” is a surveillance partnership of intelligence agencies consisting of Australia, Canada, New Zealand, the United Kingdom, and the United States. According to a joint communique issued after the meeting encryption and access to data was discussed. The communique stated that “encryption can severely undermine public safety efforts by impeding lawful access to the content of communications during investigations into serious crimes, including terrorism.”

In the letter organised by Access Now, CIPPIC, and researchers from Citizen Lab, 83 groups and individuals from the so-called “Five Eyes” countries wrote “we call on you to respect the right to use and develop strong encryption.” Signatories also urged the members of the ministerial meeting to commit to allowing public participating in any future discussions.


Read the letter in full:

Senator the Hon. George Brandis
Attorney General of Australia

Hon. Christopher Finlayson
Attorney General of New Zealand

Hon. Ralph Goodale
Minister of Public Safety and Emergency Preparedness of Canada

Hon. John Kelly
United States Secretary of Homeland Security

Rt. Hon. Amber Rudd,
Secretary of State for the Home Department, United Kingdom

CC: Hon. Peter Dutton, Minister for Immigration and Border Protection, Australia;
Hon. Ahmed Hussen, Minister of Immigration, Refugees, and Citizenship, Canada;
Hon. Jeff Sessions, Attorney General for the United States;
Hon. Jody Wilson-Raybould, Minister of Justice and Attorney General, Canada;
Hon. Michael Woodhouse, Minister of Immigration, New Zealand


To Ministers Responsible for the Five Eyes Security Community,
In light of public reports about this week’s meeting between officials from your agencies, the undersigned individuals and organisations write to emphasise the importance of national policies that encourage and facilitate the development and use of strong encryption. We call on you to respect the right to use and develop strong encryption and commit to pursuing any additional dialogue in a transparent forum with meaningful public participation.

This week’s Five Eyes meeting (comprised of Ministers from the United States, United Kingdom, New Zealand, Canada, and Australia) discussed “plans to press technology firms to share encrypted data with security agencies” and hopes to achieve “a common position on the extent of … legally imposed obligations on … device-makers and social media companies to co-operate.” In a Joint Communiqué following the meeting, participants committed to exploring shared solutions to the perceived impediment posed by encryption to investigative objectives.

While the challenges of modern day security are real, such proposals threaten the integrity and security of general purpose communications tools relied upon by international commerce, the free press, governments, human rights advocates, and individuals around the world.

Last year, many of us joined several hundred leading civil society organisations, companies, and prominent individuals calling on world leaders to protect the development of strong cryptography. This protection demands an unequivocal rejection of laws, policies, or other mandates or practices—including secret agreements with companies—that limit access to or undermine encryption and other secure communications tools and technologies.

Today, we reiterate that call with renewed urgency. We ask you to protect the security of your citizens, your economies, and your governments by supporting the development and use of secure communications tools and technologies, by rejecting policies that would prevent or undermine the use of strong encryption, and by urging other world leaders to do the same.

Attempts to engineer “backdoors” or other deliberate weaknesses into commercially available encryption software, to require that companies preserve the ability to decrypt user data or to force service providers to design communications tools in ways that allow government interception are both shortsighted and counterproductive. The reality is that there will always be some data sets that are relatively secure from state access. On the other hand, leaders must not lose sight of the fact that even if measures to restrict access to strong encryption are adopted within Five Eyes countries, criminals, terrorists, and malicious government adversaries will simply switch to tools crafted in foreign jurisdictions or accessed through black markets. Meanwhile, innocent individuals will be exposed to needless risk. Law-abiding companies and government agencies will also suffer serious consequences. Ultimately, while legally discouraging encryption might make some useful data available in some instances, it has by no means been established that such steps are necessary or appropriate to achieve modern intelligence objectives.

Notably, government entities around the world, including Europol and representatives in the U.S. Congress, have started to recognise the benefits of encryption and the futility of mandates that would undermine it.

We urge you, as leaders in the global community, to remember that encryption is a critical tool of general use. It is neither the cause nor the enabler of crime or terrorism. As a technology, encryption does far more good than harm. We, therefore, ask you to prioritise the safety and security of individuals by working to strengthen the integrity of communications and systems. As an initial step, we ask that you continue any engagement on this topic in a multi-stakeholder forum that promotes public participation and affirms the protection of human rights.

We look forward to working together toward a more secure future.


Access Now

Advocacy for Principled Action in Government

American Library Association

Amnesty International

Amnesty UK

Article 19

Australian Privacy Foundation

Big Brother Watch

Blueprint for Free Speech

British Columbia Civil Liberties Association (BCCLA)

Canadian Civil Liberties Association (CCLA)

Canadian Journalists for Free Expression (CJFE)

Center for Democracy and Techology

Centre for Free Expression, Ryerson University

Chaos Computer Club (CCC)

Constitutional Alliance

Consumer Action



Defending Rights and Dissent

Demand Progress

Digital Rights Watch

Electronic Frontier Foundation

Electronic Frontiers Australia

Electronic Privacy Information Center


Freedom of the Press Foundation

Friends of Privacy USA

Future Wise

Government Accountability Project

Human Rights Watch


Index on Censorship

International Civil Liberties Monitoring Group (ICLMG)

Internet NZ


Liberty Coalition

Liberty Victoria

Library Freedom Project

My Private Network

New America’s Open Technology Institute

NZ Council for Civil Liberties


Open Rights Group (ORG)


Niskanen Center

Patient Privacy Rights

PEN International

Privacy International

Privacy Times

Private Internet Access

Restore the Fourth

Reporters Without Borders

Rights Watch (UK)

Riseup Networks

R Street Institute

Samuelson-Glushko Canadian Internet Policy & Public Interest

Clinic (CIPPIC)

Scottish PEN


Sunlight Foundation


Tech Liberty

The Tor Project


World Privacy Forum

Brian Behlendorf, executive director, Hyperledger, at the Linux Foundation

Dr. Paul Bernal, lecturer in IT, IP and media law, UEA Law School

Owen Blacker, founder and director, Open Rights Group; founder, NO2ID

Thorsten Busch, lecturer and senior research fellow, University of St Gallen

Gabriella Coleman, Wolfe Chair in scientific and technological literacy at McGill University

Sasha Costanza-Chock, associate professor of civic media, MIT

Dave Cox, CEO, Liquid VPN

Ron Deibert, The Citizen Lab, Munk School of Global Affairs

Nathan Freitas, Guardian Project

Dan Gillmor, professor of practice, Walter Cronkite School of Journalism and Mass Communication, Arizona State University

Adam Molnar, lecturer in criminology, Deakin University

Christopher Parsons, The Citizen Lab, Munk School of Global Affairs

Jon Penney, research fellow, The Citizen lab, Munk School of Global Affairs

Chip Pitts, professorial lecturer, Oxford University

Ben Robinson, directory, Outside the Box Technology Ltd and Discovery Technology Ltd

Sarah Myers Wes, doctoral candidate at the Annenberg School for Communication and Journalism

J.M. Porup, journalist

Lokman Tsui, assistant professor at the School of Journalism and Communication, the Chinese University of Hong Kong (Faculty Associate, Berkman Klein Center)

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