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Publication
bans (oldest) | Publication
bans (also from archives) | Publication
bans (2004) | Publication
bans (also 2004) | Dan
Zakreski and the FASD case | Jo
Lynn Sheane and the Ramsay case | We laumched this website
by defying a publication
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1999 story | Sarah Gibb's
Where angels fear to tread | The Vopni
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worker and prosecutors involved |
Telling the
truth about the undefamable / Restoring reputations to the defamed:
It can be done only with names.
Publication
Bans 2005
Internet wreaks havoc
on publication bans
By KIRK MAKIN, Globe and
Mail, April 5, 2005
The effectiveness of publication
bans in the Internet age can be gauged by a rough rule of thumb:
the bigger the case, the more useless the ban. A ban on testimony
at the Gomery inquiry into the sponsorship scandal had barely
been issued last week before it was massively breached on the
weekend by U.S. bloggers whose websites are easily accessible
to Canadians.
It was a familiar replay of
leaks from William Pickton's preliminary hearing on 13 murder
charges in Vancouver; extradition proceedings for an Israeli
man charged with killing Toronto teenager Dmitri (Matti) Baranovski;
court sessions involving those accused in the Air-India bombings;
and Karla Homolka's 1993 manslaughter trial.
While hundreds of publication
bans are imposed each year without a word being reported, cases
that attract international attention usually cannot be kept under
wraps.
"What we are seeing in
these cases is a one-two punch: the availability of information,
and the will to seek it out," said Jim Rossiter, a Halifax
media lawyer.
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"In a case like this,
it is crucial to the public interest for that information to
be out there," argued media lawyer Lorne Honickman. "Unlike
a regular trial, a public inquiry involves the highest peak of
public interest."
Publication bans are generally
imposed to safeguard the right to a fair trial. They can be strictly
enforced within Canadian borders, but this becomes almost impossible
when the source of the information is abroad.
In the Pickton case, Seattle
television and newspaper websites ran accounts despite a publication
ban. And at Ms. Homolka's 1993 trial for the slayings of two
Ontario teenagers, The Washington Post and some Buffalo media
breached the ban. Although the U.S. media were ultimately barred
from the courtroom, at least one U.S.-based website continued
to publish case details.
The efficacy of publication
bans is a topic of great debate. Most media argue that, besides
being outdated and difficult to enforce, they are also unnecessary.
Even some defence lawyers have lost faith in them.
"There are times when
such a ban is clearly warranted, especially to withhold specific
facts or images from the public - the Bernardo case comes to
mind," criminal lawyer Robert Rotenberg said. "But
as a general rule, instead of running from technology, the courts
system should learn to live with it, and embrace it.
Mr. Honickman said there is
no evidence that media reports influence potential jurors. "The
idea of a tainted jury pool is fiction," he said.
He said that many enlightened
judges have taken heed of this fact, permitting pre-trial publicity
subject to a "sunset clause" that shuts down publication
a few weeks before a jury is to be picked.
The fact that lawyers can closely
question potential jurors about their knowledge of a case has
also helped negate the effect of pre-trial publicity, Mr. Honickman
said.
However, Mr. Rossiter said
that bans may do some good. "How much good? More than if
one hadn't been issued at all," he said. "My opinion
is that fewer people will be aware than would be without a ban."
Bloggers bust bans
Editorial, The Ottawa
Citizen, April 05, 2005
Publication bans are worse
than useless in the Internet age. They not only prevent Canadians
from following public inquiries or trials; they also create a
hierarchy where some citizens are in the know and others are
not.
Last week, Justice John Gomery
put a temporary ban on reporting testimony from three key witnesses
in the sponsorship inquiry: Jean Brault, Paul Coffin and Charles
Guite. The ban was intended to prevent the three men's testimony
from influencing potential jurors in their upcoming criminal
trials. But the effect of the ban has been to take the discussion
of the sponsorship inquiry out of the mainstream media and push
it onto the Internet. The Internet is covered by the publication
ban, too -- at least, pages that originate in Canada are. But
word spread quickly on the weekend that information about the
testimony was available on at least one U.S. website.
A publication ban has become
the equivalent of a brown paper wrapper: it marks the information
as naughty, but does not put it beyond reach. The whispers and
hints are likely to send people looking for the information,
thus negating the intended effect of the ban.
The Citizen has argued that
the ban at the Gomery inquiry is wrong because it prevents the
public from learning, in a timely fashion, how deep the rot went
in the government's sponsorship program. For the public at large,
that's still true. But this week, many Canadians already know,
or think they know, the content of last week's testimony: politicians,
journalists, gossips -- anyone with access to the Internet and
a little patience.
Some reporters and the few
members of the public who watch the proceedings in person know
exactly what Jean Brault said last week. Stopping the spread
of word-of-mouth gossip is hard enough. Stopping the spread of
a juicy story on the Internet is impossible. U.S. news sources
have not felt any compulsion to follow the rules imposed by Canadian
courts in the cases of Paul Bernardo and Karla Homolka, or of
Robert Pickton. Now, in the age of blogs, there is an even greater
risk the information will leak out.
Canada and the U.S. share information
but have different traditions about limiting freedom of expression.
Courts and governments must recognize that their jurisdiction
is limited, although information is not. Indeed, a man who now
lives in Ontario is suing the Washington Post for libel over
stories it published in 1997, arguing that Ontario readers can
access the Post's online archive.
It is almost impossible to
control the spread of information in 2005. Even in repressive
regimes such as China, North Korea or Iran, the Internet spreads
out beyond the clutches of the state. In a free country, where
all residents have instant and unfettered access to international
sources of information, bans are quickly becoming futile.
Judge Gomery's publication
ban has left Canadians with a choice: They can seek out information
about their own government from U.S. sources --or they can sit
back in ignorance and watch the members of Parliament decide
whether to force an election over testimony that citizens aren't
even supposed to know about.
© The Ottawa Citizen 2005
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
