Publication ban

Last updated

A publication ban is a court order which prohibits the public or media from disseminating certain details of an otherwise public judicial proceeding. In Canada, publication bans are most commonly issued when the safety or reputation of a victim or witness may be hindered by having their identity openly broadcast in the press. They are also commonly issued when the crime involves minors or is sexual in nature.

Contents

In countries where press freedom is the norm, an actual ban on publication is used mostly for ongoing court cases where publicity may affect the case, although in Canada the balance has tilted away from disclosure since the passage in 1985 of the Freedom of Information and Protection of Privacy Act (Ontario).

In Canada

There are several types of publication ban permitted under the Canadian criminal code:

Under s. 486.6, anyone who violates any of these orders (s. 486.4(1), (2) or (3) or 486.5(1) or (2)) can be liable for a summary conviction offence.

General publication ban (s. 486(1),(2))

Section 486.5(1) provides the court with the authority to make an order "directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice."

Section 486.5(2) provides the authority to make an order to not reveal "information that could identify the justice system participant".

This can be applied for by a prosecutor, a victim or a witness, a judge or justice. (s. 486.5(1))

Under s.486.5(4), the application must be made in writing and notice must be given to the prosecutor, accused, or any other person affected by the order that the judge specifies. The application itself as well as the contents of a hearing on the application cannot be published.(s. 486.5(6), (9))

The order shall only be made where the applicant establishes that the order is "necessary for the proper administration of justice". (s. 486(1), (2), (5))

The factors that must be considered to decide whether to proceed are set out in s. 486.5(7):

(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.

Sexual offence publication ban

Under s. 486.4 (1), the court may make an order "directing that any information that could identify the complainant or a witness" not be published, broadcast or transmitted for any sexual offences (as listed in s. 486.4(1)(a)).

Any complainant or witness under the age of 18 years must be notified of their right to make an application for an order, and if requested by the complainant, prosecutor or witness under 18 years of age, the judge must made the order. (s. 486.4(2))

Similarly, under 486.4(3), for charges under 163.1, the court must make an order in relation to any person who comprises the subject of child pornographic materials.

Jury identification ban

Under 631(6), the court or crown may order a publication ban on any information that may tend to identify jury members where it "is necessary for the proper administration of justice".

Prominent cases

In Canada, the role of publication bans came under intense scrutiny in April, 2005 when Justice Gomery issued a publication ban on the testimony of three key witnesses at the Gomery Inquiry in the sponsorship scandal. The ban was granted at the request of the lawyers for Jean Brault, Paul Coffin and Chuck Guité, who argued that intense media coverage would bias potential jurors for their upcoming criminal trials. Shortly after the ban was imposed, however, an edited summary of Brault's testimony was posted on an American blogger's website, where it was immediately accessible and became well-known to Canadians interested in the story. Also, the inquiry remained public, so the opposition parties were aware of what was being revealed even while their respective leaders were kept intentionally unaware to prevent them from accidentally violating the ban at a press conference. Justice Gomery later lifted the ban on most of the testimony.

In January 2005, author Stephen Williams was sentenced for violating the publication ban by including forbidden details in his two books on Paul Bernardo and Karla Homolka, making him only the second person sentenced for violating the publication ban—the first being one of the "Electronic ban breakers". Stephen Williams reached a plea agreement with the Canadian authorities in which he agreed that he would no longer use "any materials belonging to the Crown" as part of his writings.

In December 2010, a publication ban was imposed in the case of the murder of Victoria Stafford because the victim was a minor. [1]

The Court also imposed a publication ban in the case of Nicole Wagler, a 17-year-old from Milverton, Ontario, who was brutally murdered December 2012. [2]

In the United Kingdom

Where a judge considers that the reporting of an ongoing case may prejudice a trial, what are termed "reporting restrictions" are likely to be imposed while the case is in progress. For example, an order prohibiting publication under Section 11 of the Contempt of Court Act 1981 was issued forbidding any United Kingdom newspaper from publishing certain information regarding a memo alleged to be an official transcript of a conversation between U.S. President George W. Bush and UK Prime Minister Tony Blair, which, in the context of the planning for the 2003 invasion of Iraq, regarded an alleged plan to bomb selected offices of the Arabic-language television news station Al Jazeera.

There is a blanket prohibition on reporting the identities of alleged or confirmed victims of sexual offences in England and Wales, under the Sexual Offences (Amendment) Act 1992.

In the United States

Brian Cathcart of The Independent has stated that the First Amendment to the U.S. Constitution "ensures that the media enjoy great latitude in the coverage of criminal investigations and trials." [3]

A notable legal dispute over a government attempt to censor newspapers arose in the context of the Watergate Scandal during the early 1970s. Richard Nixon's administration attempted to block The New York Times and the Washington Post from publishing information contained in the Pentagon Papers . The matter was resolved after a two-week delay by the United States Supreme Court in New York Times Co. v. United States, in which the Court ruled that the publication ban was a violation of the First Amendment guarantee of freedom of speech and of the press.

Publication of name of sexual assault victim

The US Supreme Court ruled the imposition of damages for truthfully publishing public information violates the First Amendment.

See also

Related Research Articles

Sexual assault is an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence that includes child sexual abuse, groping, rape, drug facilitated sexual assault, and the torture of the person in a sexual manner.

<span class="mw-page-title-main">Press Complaints Commission</span> British voluntary regulatory body, 1991–2014

The Press Complaints Commission (PCC) was a voluntary regulatory body for British printed newspapers and magazines, consisting of representatives of the major publishers. The PCC closed on Monday 8 September 2014, and was replaced by the Independent Press Standards Organisation (IPSO), chaired by Sir Alan Moses. Unlike the UK's only 'Approved Regulator' Independent Monitor for the Press (IMPRESS) who are fully compliant with the recommendations of the Leveson Inquiry, IPSO has refused to seek approval to the Press Recognition Panel (PRP).

<span class="mw-page-title-main">Sexual Offences Act 2003</span> United Kingdom legislation

The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom.

<span class="mw-page-title-main">Criminal law of Canada</span>

The criminal law of Canada is under the exclusive legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act and several other peripheral statutes.

In criminal law, consent may be used as an excuse and prevent the defendant from incurring liability for what was done.

A rape shield law is a law that limits the ability to introduce evidence about the past sexual activity of a complainant in a sexual assault trial, or that limits cross-examination of complainants about their past sexual behaviour in sexual assault cases. The term also refers to a law that prohibits the publication of the identity of a complainant in a sexual assault case.

Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent.

An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. Generally, the term can be used to indicate strong moral repugnance and outrage in expressions such as "obscene profits" and "the obscenity of war". As a legal term, it usually refers to descriptions and depictions of people engaged in sexual and excretory activity.

<span class="mw-page-title-main">Human trafficking in Australia</span>

Human trafficking in Australia is illegal under Divisions 270 and 271 of the Criminal Code (Cth). In September 2005, Australia ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, which supplemented the United Nations Convention against Transnational Organized Crime. Amendments to the Criminal Code were made in 2005 to implement the Protocol.

Bail in Canada refers to the release of a person charged with a criminal offence prior to being tried in court or sentenced. The Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms guarantee the right not to be denied reasonable bail without just cause. That right is implemented by the Criminal Code, which provides several ways for a person to be released prior to a court appearance. A person may be released by a peace officer or by the courts. A release by the courts is officially known as a judicial interim release. There are also a number of ways to compel a person's appearance in court without the need for an arrest and release.

Rape is a statutory offence in England and Wales. The offence is created by section 1 of the Sexual Offences Act 2003:

(1) A person (A) commits an offence if—

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

<span class="mw-page-title-main">Code of Criminal Procedure (India)</span> Erstwhile Code of Criminal Law of India

The Code of Criminal Procedure commonly called Criminal Procedure Code (CrPC) was the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April 1974. It provides the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty. It also deals with public nuisance, prevention of offences and maintenance of wife, child and parents.

<span class="mw-page-title-main">Sexual Offences (Amendment) Act 1976</span> United Kingdom legislation

The Sexual Offences (Amendment) Act 1976 is an act of the Parliament of the United Kingdom. It made provision in relation to rape and related offences. Except for subsections (1) and (2) and (4) and (6) of section 7, the whole Act is repealed. Section 7(2) now provides the definition of the expression "a rape offence" in relation to court martial proceedings. The other remaining provisions are purely supplemental.

Victims' rights are legal rights afforded to victims of crime. These may include the right to restitution, the right to a victims' advocate, the right not to be excluded from criminal justice proceedings, and the right to speak at criminal justice proceedings.

Criminal procedure in South Africa refers to the adjudication process of that country's criminal law. It forms part of procedural or adjectival law, and describes the means by which its substantive counterpart, South African criminal law, is applied. It has its basis mainly in English law.

Revenge porn is the distribution of sexually explicit images or videos of individuals without their consent. The material may have been made by a partner in an intimate relationship with the knowledge and consent of the subject at the time, or it may have been made without their knowledge. The subject may have experienced sexual violence during the recording of the material, in some cases facilitated by narcotics such as date rape drugs which also cause a reduced sense of pain and involvement in the sexual act, dissociative effects and amnesia. The possession of the material may be used by the perpetrators to blackmail the subjects into performing other sexual acts, to coerce them into continuing a relationship or to punish them for ending one, to silence them, to damage their reputation, and/or for financial gain. In the wake of civil lawsuits and the increasing numbers of reported incidents, legislation has been passed in a number of countries and jurisdictions to outlaw the practice, though approaches have varied and been changed over the years. The practice has also been described as a form of psychological abuse and domestic violence, as well as a form of sexual abuse.

After a sexual assault or rape, victims are often subjected to scrutiny and, in some cases, mistreatment. Victims undergo medical examinations and are interviewed by police. If there is a criminal trial, victims suffer a loss of privacy, and their credibility may be challenged. Victims may also become the target of slut-shaming, abuse, social stigmatization, sexual slurs and cyberbullying. These factors, contributing to a rape culture, are among some of the reasons that may contribute up to 80% of all rapes going unreported in the U.S, according to a 2016 study done by the U.S. Department of Justice.

<i>R (Canada) v Adams</i> Supreme Court of Canada case

Justice Sopinka wrote for a unanimous court in this appeal from the Alberta Court of Queen's Bench on a case in which a Criminal Code section 486 publication ban was overturned by the trial judge, Justice Feehan, after he had found the primary witnesses for both sides of a sexual assault trial to be unreliable.

<span class="mw-page-title-main">Evidence Act 2006</span> Act of Parliament in New Zealand

The Evidence Act 2006 is an Act of the Parliament of New Zealand that codifies the laws of evidence. When enacted, the Act drew together the common law and statutory provisions relating to evidence into one comprehensive scheme, replacing most of the previous evidence law on the admissibility and use of evidence in court proceedings.

<span class="mw-page-title-main">Sexual Offences (Amendment) Act 1992</span> United Kingdom legislation

The Sexual Offences (Amendment) Act 1992 is an Act of the Parliament of the United Kingdom.

References

  1. "Top Court Lifts Ban in Stafford Case". CBC.ca. December 9, 2010. Retrieved 2010-12-09.
  2. "Milverton man charged with first-degree murder | Your online newspape…". Archived from the original on 15 January 2013.
  3. Cathcart, Brian. "Reporting Restrictions Have Been Lifted – by the Internet." The Independent . Sunday February 19, 1995. Retrieved on October 11, 2010. "These questions would not arise in the United States, where the First Amendment, guaranteeing freedom of speech, ensures that the media enjoy great latitude in the coverage of criminal investigations and trials."