Until the recent election of the Orange racist misogynist, the public seems to have had mixed feelings about the press. On the one hand, people use it as a means of achieving justice via social pressure and shaming when our legal system fails them. On the other hand you have people unreasonably targeted in the court of public opinion thanks to the press and social media, ruining their lives before the courts can decide their innocence, liability, or guilt. On top of that, news websites are covered with politically or corporate sponsored pieces masquerading as real news that claim to be offering sound advice and information when they’re really just pushing products or agendas no one needs.
It is in this new age of juggling fake vs. real news that we as a society need to take a serious look at what real journalism is, and the laws and ethics of those who practice it.
The simplified definition of journalism is the occupation of a diverse bunch of people who write, edit, and distribute electronic, print, and audio visual material on subjects of public interest. People think of journalists as strictly doing the news, but most news websites have everything from the news, to animal sob stories, to entertainment stuff, to insight on fashion and tech trends to ranty editorial pieces.
That said, though the press is universally recognized as playing an important role in any healthy democracy, there is little in Canadian law explicitly protecting its members. Journalists are widely considered to be the watchdogs of our democracy, calling bullshit and demanding justice before everyone else, but there’s no special law guaranteeing their rights.
Most of the rights of journalists come from the Canadian Charter of Rights and Freedoms. In Quebec, the Charter of Human Rights and Freedoms and the Civil Code, and in the rest of Canada, case law.
In the Canadian Charter of Rights and Freedoms, we have article 2(b) which guarantees freedom thought, belief, opinion and expression, including freedom of the press for everyone.
In the Quebec Charter, we have sections 3 and 9. Section 3 is a lot like 2(b) of the Canadian Charter in that it protects freedom of opinion and expression. Section 9 protects our right to the non-disclosure of our confidential information.
Last but not least in Quebec, we have civil law, written into our Civil Code and Code of Civil Procedure. The rule is that any evidence found to be obtained under circumstances that violate someone’s fundamental rights and freedoms can, to a certain discretionary degree, be rejected by the courts.
Journalists’ fight to protect their sources is one of the more frequent issues that come up before the courts, forcing our justice system to define the rights of the press outside of any definitive legislation.
In 2010 in Globe and Mail v. Canada (Attorney General), the Supreme Court was asked to come up with a way of deciding under what circumstances a journalist should be made to reveal their source.
Anonymous sources are extremely important for societal watchdogs as it allows them to get information from people in circumstances where their job, their reputation, or their lives would be jeopardized by publicly sharing the information themselves. On the other hand, you have the right of the authorities to know where important information is coming from in order to successfully resolve a criminal investigation, and the right of lawyers to have access to information and people in order to successfully defend their clients against criminal charges or lawsuits.
The Supreme Court in Globe and Mail used the Quebec Civil Code and the Canadian and Quebec Charters to come up with the following test as to whether a journalist should be made to reveal their source:
First, one must ask if the evidence resulting from making a journalist answer questions that could reveal their sources would be relevant to the case. If the answer is yes, the courts must consider the following four factors about the anonymous source:
- The relationship must originate in a confidence that the source’s identity will not be disclosed
- Anonymity must be essential to the relationship in which the communication arises
- The relationship must be one that should be sedulously fostered in the public interest
- The public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth
In addition to those rules and tests, you have the criminal code and the rules regarding civil liability.
Hate propaganda, public incitement of hatred, and promoting genocide are all criminal offenses in Canada.
If someone causes you damages such as those that could cost you your wealth or livelihood, damages that negatively affected your health, or damages that caused you psychological problems, you are allowed to seek reparations for those damages. People in Canada have successfully sued journalists and media companies for damages because their actions ruined their reputations and/or violated their right to privacy.
Outside the law, the press tends to regulate itself. Lobby groups like the Fédération professionnelle des journalistes du Québec put out codes of ethics for the profession that set out the rules they all should follow. This includes no plagiarizing, making sure to put out accurate information, and making clear distinctions between their personal opinions and the facts they present.
In an age where politicians feel free to accuse the press of undermining democracy, media literacy is more important than ever. We have a responsibility to keep our eyes open for the thinly veiled sponsored pieces and the ranty conjecture masquerading as fact.
Journalists who expose this to us are more important than ever and we need more rules to protect them. Politicians may not like reporters, but without them there’d be no democracy, and no one would know who they are. As Oscar Wilde once said:
“The only thing worse than being talked about, is not being talked about.”
Let’s keep the press free, so they can keep talking.
* Featured image by Pete O’Shea via Flickr Creative Commons
