Judge, jury and textecutioner

Court-ordered publication bans extend into cyberspace and social media, so careful what you post

Rosie Mullaley rmullaley@thetelegram.com
Published on May 20, 2014
Publication bans ordered by judges include any communication via Facebook, Twitter or other social media.
Robert Simon

If you think court-imposed publication bans only apply to media organizations, think again.

Sharing protected information from a court case on your Facebook status, in a Tweet or even in a group text message is against the law and could get you arrested.

And if the disturbing case involving a Conception Bay North mother’s child abuse trial in Harbour Grace provincial court last week is any indication, judges may be getting tougher on implementing the rule.

The woman — who was convicted of numerous counts of assault, forcible confinevment and criminal negligence causing bodily harm against her children — had her name banned from publication in order to protect the identity of the children.

In fact, Judge Jim Walsh extended the publication ban to include anything that could reveal their identity, including the number of children involved and the community where they live.

But some specific comments by the judge raised eyebrows last week.

He warned a crowded courtroom that anyone breaching the publication ban via social media will be pursued by law.

The case — which included graphic and horrific detail of how the children were abused for years — grabbed the attention of the entire province, with people taking to online news sites and social media to express shock and anger.

The judge wanted it stopped.

But in this technologically sophisticated world — in which people use computers and smartphones to communicate — the question is — how do you control it?

“It’s a real problematic issue,” prominent St. John’s lawyer Bob Simmonds said.

“The question arises: what defines publication?

“The Criminal Code is not set up to deal with this. When the rules were drafted, they didn’t have the Internet in mind.”

•••

According to the Criminal Code of Canada, a publication ban orders that the information subject to the ban, “shall not be published in any document or broadcast or transmitted in any way.”

The purpose of imposing publication bans is to protect the accused’s right to a fair trial, to protect the identity of the victims of crime and to protect the administration of justice.

Bans are usually imposed at bail hearings and preliminary inquiries. In a jury trial, anything said in the absence of the jury is also banned from publication.

Bans are also put in place for sexual assault cases, cases involving young offenders and young witnesses. A lawyer can also ask for a publication ban in cases in which a person’s safety could be threatened by the publication of information.

And so a mention of a young witness’s name or information from a bail hearing on a Facebook status could land you in trouble with the law.

But word can travel fast, especially in small towns and communities.

And because so many non-traditional media outlets exist — such as bloggers and online citizen journalists — Simmonds said not everybody would be aware of the bans.

“It would be difficult to enforce and to prove (they knew about the ban),” Simmonds said.

“If 500 people Tweeted information (from a court case that’s banned from publication), imagine the cost of trying to apprehend and prosecute 500 people.

“And then, you have to think about what kind of police resources would it take to enforce these bans?

“The time, and ingenuity, to deal with cyber crimes is almost inconceivable.”

•••

But Donovan Molloy, director of public prosecutions, says the law is clear — publication can include the tranmission of information by any means.

“Potentially, there may be some members of the public who would tend to view publication as limited to its more traditional means, namely television, newspaper and other media. The difficulty, however, is what those citizens would encounter if they were to publish material on the Internet that’s subject to a ban.

“A lack of awareness that publication includes transmission by any means would not help people charged with posting material on the Internet, because ignorance of the law is no excuse.

“We live in a society where a person’s presence is increasingly becoming an online persona. People need to understand that any offence that you could commit by saying something directly to another person can also very likely be committed by using the Internet to facilitate that very same communication.”

As for enforcement, Molloy said the police would act on ban breaches just as they would any other crime.

“In this case, I believe the origin of a complaint would be from someone who saw the offensive information on the Internet and then reported it to police, then leading to an investigation to determine whether an offence had occurred.”

•••

Extending publication bans to cover social media is far from unique to this province. Several judges across the country have made such orders, including during high-profile murder cases such as that of Robert Pickton in British Columbia in 2005, the Terri-Lynne McClintic case in 2010 and Chris Falconer in Nova Scotia, accused of killing Amber Kerwin in 2011.

Dean Jobb, the associate director for the school of journalism at King’s College in Nova Scotia, said the Internet has made everyone a publisher, but that doesn’t mean they are exempt from the law.

Jobb, a former journalist and author of the book, “Media Law for Canadian Journalists,” said the judge in the child abuse case at Harbour Grace provincial court was simply stating the facts of a ban.

“There’s nothing new here. The sheer volume of people who could potentially publish may be different (nowadays), but the ban doesn’t change at all,” Jobb said.

“People think, I’m just posting to my page, why worry about a ban? Answer is, it’s not just about the media. … Once you understand that, it’s pretty simple.”

Jobb said more and more judges are recognizing the power of the Internet and are mentioning it in court proceedings.

He said sharing information to any audience is breaching a court publication ban.

“If you went home and said, ‘Guess what happened?’ That’s no harm,” he said. “But then if you said, ‘OK, I’m going to rent a lecture hall and make sure everyone knows,’ that would be publishing it.

“If you’ve got a bullhorn, that’s publishing it. It’s broadcasting it.

“If you were to send a text message (to one person), that may be a technical breach, but you’re not publicizing it to the greater world.”

Jobb pointed out that courts are open and publication bans aren’t the norm for most cases, and so bans don’t limit people’s right to freedom of expression.

“So you can rant about unfairness about the ban and how it shouldn’t be imposed, but you can’t violate the ban and get away with it,” he said.

“You can curb it a bit, but no one is keeping you from raising the issue. It may seem like it’s unenforceable, but it’s totally enforceable,” he said.

“Some may ask, is that a good use of police resources? But there are a whole bunch of laws out there people think aren’t necessary.

“People think they won’t be chased down, but why try it?”

rmullaley@thetelegram.com

Twitter: @TelyCourt