In Canada and elsewhere, freedom of speech is on the endangered list - LawNow Magazine

In Canada and elsewhere, freedom of speech is on the endangered list

Freedom of speech. Freedom of the press. These phrases may conjure up Hollywood-style images of noble activists and principled reporters butting heads with those in power – and winning. However, the reality is often far different: surveillance, gag orders, expensive and oppressive lawsuits, and activists and journalists being arrested, imprisoned – and in extreme cases, even dying – for their convictions.

The heavy-handedness of defamatory libel and its use in curbing freedom of expression is an ongoing problem, said Professors David Pritchard (University of Wisconsin-Milwaukee) and Lisa Taylor (Ryerson University) … For a long time, the issue of press freedom focused largely on the journalistic coverage of criminal trials. W. H. Kesterton, in his 1976 book The Law and the Press in Canada, said that in Canada and Great Britain, “the considerations of a fair trial prevail over considerations of a free press … the press is restrained in most cases where unfairness in a trial seems likely to result.” By contrast, U.S. press freedoms are covered under that country’s first amendment, giving the impression of a “freer” press.

But the advent of social media platforms and the rapid dissemination of information – both real and fake – has generated a hot debate. Issues range from the balancing act of regulated-versus-open use (especially in cases where there are questions of accuracy) to the U.S. government engaging the 1917 Espionage Act to prosecute WikiLeaks founder Julian Assange for the 2010 dissemination of secret documents (seen as subversive by some and as free speech by others). As well, the rights of American individuals were threatened with a May 2019 U.S. Supreme Court decision supporting the right of police officers to not be sued for arresting anyone on the basis of “probable cause”. This means an officer can make an arrest for anything considered to be “wrongful behaviour,” from protesting outside a consulate to using a cellphone under what could subjectively be deemed “suspicious” circumstances.

It all speaks to a tighter rein on personal and press freedoms. The Canadian Charter of Rights and Freedoms provides a guarantee of freedom of expression and press freedom, with some provisos and grey areas. While free speech may be legally restricted as a means of ending discrimination and promoting gender equality and social harmony, the definition of the punishable crime of hate speech remains vague. Though the Charter promises “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication,” much has changed in the 40-plus years since Kesterton’s book.

… journalistic freedoms are threatened and reporters can face imprisonment just for covering protests. These anti-journalism efforts are driven largely by governments. Denis Rancourt, a researcher with the Ontario Civil Liberties Association (OCLA), said via email that the press freedoms that once existed in post-World War II Canada and the U.S. have dissolved over time. This dissolution is due to the introduction of heightened government oversight, greater corporate mergers and globalization, such that “the overriding threat to press freedom for corporate journalists is near-absolute absence of professional independence.”

Human Rights Watch, an independent organization focusing on the protection of individual rights, acknowledges that access to information is on the rise, thanks to the growth of the Internet. At the same time, it notes that “efforts to control speech and information are also accelerating, by both governments and private actors in the form of censorship, restrictions on access, and violent acts directed against those whose views or queries are seen as somehow dangerous or wrong.” This profoundly affects journalists, who must often put themselves in conflict with governments in order to obtain – and disseminate – information. Such was the case in Burma for Reuters’ journalists Wa Lone and Kyam Soe Oo. The pair were detained after covering the 2017 massacre of Rohingya villagers by the Burmese military. Their May 2019 release from prison was a bright light in a place where press freedoms are often otherwise dim.

Closer to home, Reporters Without Borders monitors international press freedom through its World Press Freedom Index. Canada’s ranking has gone through some ups and downs in the past few years, from eighth in 2015 to a low of 22nd place in 2016 before rebounding slightly to 18th in the following two years. That improved standing is at least partially due to the 2017 enactment of the Journalistic Sources Protection Act. According to the federal government, the Act “allows journalists to not disclose information or a document that identifies or is likely to identify a journalistic source unless the information or document cannot be obtained by any other reasonable means and the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source.”

… the press freedoms that once existed in post-World War II Canada and the U.S. have dissolved over time. J-Source, representing media organizations and journalism schools, lauds Canada’s top-20 position (by contrast, the U.S. standing is 48th). It also warns on its website of troubling situations where journalistic freedoms are threatened and reporters can face imprisonment just for covering protests. These anti-journalism efforts are driven largely by governments.

Canadian Journalists for Free Expression (CJFE) said a worrying sign was the 2018 proposal by Privacy Commissioner Daniel Therrien for a social media “right to be forgotten” regulation. This proposal would allow individuals to delete information – and this may involve removing information that is essential to journalists in their investigations. CJFE has called on the government to conduct a review of the proposed law. As well, CJFE’s interactive Censorship Tracker currently has “over 50 reports of restrictions on free expression … with reports covering a wide range of issues, including the silencing of federal scientists, civil injunctions against protesters, and a number of defamation suits … [I]ndividuals from all walks of life are affected by attempts to curb free expression in Canada.”

The heavy-handedness of defamatory libel and its use in curbing freedom of expression is an ongoing problem, said Professors David Pritchard (University of Wisconsin-Milwaukee) and Lisa Taylor (Ryerson University), in a 2018 Globe and Mail article. A study they conducted found that police services used the threat of criminal libel as a punitive measure against those who would disagree with or disrespect them. And criminal libel allegations were considered just cause for police harassment, which could include the search and seizure of personal technology such as computers and cellphones. As such, even in the face of zero libel charges (or charges being withdrawn later on), the singular process of just being investigated for libel becomes a significant punishment.

One organization fighting for free speech, human rights, and civil liberties is the Canadian Civil Liberties Association (CCLA). Formed in 1964, its website states:

It isn’t always easy to speak up for free expression. It is often those with unpopular or radical views that are silenced or have their freedom of expression threatened … freedom of expression is so core to our democracy that we have even stood up to defend the rights of individuals whose opinions we abhor.

According to Cara Zwibel, a lawyer and director of CCLA’s Fundamental Freedoms Program, the media landscape has changed dramatically in the past five or six years. People need to have a better understanding of what freedom of expression means. She states: “Because people have a chance to be exposed to so much information, their understanding of what the law covers and what it doesn’t is not clear.” Many ambiguous areas exist, added Zwibel. For instance, the live-streaming of a terror attack in New Zealand in March 2019 was seen by millions. This was considered to be a horrifying example of extremists using social media to deliver their messages.

But putting controls on such technology could also be problematic. “What about when people use that kind of technology to show police misconduct?” Zwibel asks. As well, the borderless nature of online technology means that “even if the (Canadian) courts said something needs to come down (from social media), the courts’ reach doesn’t extend beyond Canada.”

… Reporters Without Borders monitors international press freedom through its World Press Freedom Index. Canada’s ranking has gone through some ups and downs in the past few years, from eighth in 2015 to a low of 22nd place in 2016 before rebounding slightly to 18th in the following two years.Balancing a journalist’s right to do his or her job against the demands of the justice system and government can be challenging. A case in point was the 2018 Supreme Court of Canada decision ordering Vice Media reporter Ben Makuch to turn over records of his interaction with an alleged ISIS member to police. Many saw the decision as profound interference in a situation that was all about “a reporter’s right to work unhindered,” said Zwibel. CCLA had a keen interest in the case because it involved “a journalist doing his job and protecting his sources.”

The OCLA’s Rancourt said the Supreme Court of Canada has failed in being “progressive in its freedom of expression decisions.” Rancourt added, with respect to the Court:

It likes to distinguish ‘useful expression in a democracy’ from ‘expression not worthy of protection.’ It condones the common law of defamation, which violates universal standards of protection of freedom of expression, and it regularly makes regressive applications of the Canadian Charter of Rights and Freedoms loopholes that are sections 1 [reasonable limits on freedom under the law] and 32 [the scope of the Charter].

Elsewhere in the world, the scrutiny under which activists and journalists operate may be even more heightened. For example, in Hong Kong, journalists must walk a fine political line. Not surprising, given China’s ranking of 177th on the World Press Freedom Index. Reporters will avoid stories that might appear “anti-Chinese government”, and they have trouble even getting people to speak on the record.

A Canadian journalist, currently working in Hong Kong for a major media outlet and requesting anonymity, said via email that, since 1997 when governance of Hong Kong was handed back to China, “many news outlets (particularly those owned by companies with business interests in China) began self-censoring themselves, or were not too critical of the Chinese government. This practice still continues.”

In 2018, the Chinese government decided not to renew the journalist visa of Financial Times’ Victor Mallet, then vice-president of the Hong Kong Foreign Correspondents’ Club. Mallet came under fire for chairing “a controversial talk, where independence activist Andy Chan of the Hong Kong National Party was given an opportunity to speak at the club,” the Canadian journalist said. “The Hong Kong government had already put pressure on Chan’s party, banning them on the grounds of national security and public safety.”

Mallet was later reassigned to the Financial Times’ Paris bureau. And while no Hong Kong journalist has been arrested, a potential extradition law may see “journalists who are critical of the Chinese government … arrested on trumped-up charges and extradited to the mainland to be tried for subversion,” said the Canadian journalist. They added that since Xi Jinping became president of China in 2012, “he has clamped down on the media in China, and this cold spell has spread down to Hong Kong. It will be harder to do good journalism in Hong Kong as it takes a lot of courage to report on politically-charged stories if the news outlet you are reporting for has a certain political leaning.”

As the Hollywood stereotype of David-vs-Goliath “wins for the underdog” fades out, freedom of speech will demand, more than ever, keener resolve, greater vigilance and absolute determination on the part of its advocates.

Authors:

John Cooper
John Cooper, EdD, is an educator and researcher who has taught journalism and corporate communications at Durham College and Centennial College.
 


A Publication of CPLEA