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Shofar FTP Archive File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press-Council-Submission.07


Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.07
Last-Modified: 1998/09/21


(I)  Reports Of Public Meetings, Court Proceedings, And Other
     Public Proceedings Are Not Privileged

146.      The Canadian Criminal Code offence of "defamatory
libel" of individuals is subject to special defences relating to
reports of public meetings, court proceedings, and other
proceedings.  Section 298. (1) defines "defamatory libel" to mean
"matter published, without lawful justification or excuse, that
is likely to injure the reputation of any person by exposing him
to hatred, contempt or ridicule, or that is designed to insult
the person of or concerning whom it is published." [emphasis
added]. Section 309 provides: "No person shall be deemed to
publish a defamatory libel by reason only that he publishes
defamatory matter that, on reasonable grounds, he believes is
true, and that is relevant to any subject of public interest, the
public discussion of which is for the public benefit."

147.      Further, section 305 of the Criminal Code protects the
publication of defamatory matter "in a proceeding held before or
under the authority of a court exercising judicial authority" or
"in an inquiry made under the authority of an Act or by order of
Her Majesty, or under the authority of a public department or a
department of the government of a province."  Section 306
protects publication "to the Senate or House of Commons or to a
legislature of a province of defamatory matter contained in a
petition to the Senate or House of Commons or to the legislature
of a province" or publications of extracts or abstracts of such a
petition.  Section 307 protects a fair report published "in good
faith, for the information of the public_of the proceedings of
the Senate or House of Commons or the legislature of a province,
or a committee thereof, or of the public proceedings before a
court exercising judicial authority".  Section 308 protects a
fair report, in good faith, of the proceedings of "any public
meeting if  (a) the meeting is lawfully convened for a lawful
purpose and is open to the public; (b) the report is fair and
accurate; (c) he does not refuse to publish in a conspicuous
place in the newspaper a reasonable explanation or contradiction
by the person defamed in respect of the defamatory matter."

148.      The United Kingdom Public Order Act, 1986, also
recognizes defences for such reports:
          
          Section 26: Savings for reports of
          parliamentary or judicial proceedings
            
            (1)  Nothing in this Part applies to a
            fair and accurate report of proceedings in
            Parliament.
            
            (2)  Nothing in this Part applies to a
            fair and accurate report of proceedings
            publicly heard before a court or tribunal
            exercising judicial authority where the
            report is published contemporaneously with
            the proceedings or, if it is not
            reasonably practicable or would be
            unlawful to publish a report of them
            contemporaneously, as soon as publication
            is reasonably practicable and lawful.

149.      Australia's Discrimination Act, 1991 provides a similar
defence to a charge of racial vilification under section 66 which
states:  "66.(1)  it is unlawful for a person, by a public act,
to incite hatred towards, serious contempt for, or severe
ridicule of, a person or group of persons on the ground of the
race of the person or members of the group.  The defence is found
in section 66(2) which provides:  "(2) Nothing in this section
renders unlawful-(a)  a fair report of a public act referred to
in subsection (1); (b)  a communication or the distribution or
dissemination of any matter comprising a publication which is
subject to a defence of absolute privilege in proceedings for
defamation".

150.      In a civil defamation context, the British Columbia
Libel and Slander Act, R.S.B.C. 1996, c. 263 creates privilege
defences for reports of public meetings, court proceedings, and
other public proceedings.  The Act provides:
          
          Newspaper reports of proceedings in court
          privileged
          
          3 (1) A fair and accurate report in a public
          newspaper or other periodical publication or in a
          broadcast of proceedings publicly heard before a
          court exercising judicial authority if published
          contemporaneously with the proceedings, is
          privileged. _
          
           Newspaper reports of public meetings, etc.,
          privileged
          
          4 (1) A fair and accurate report published in a
          public newspaper or other periodical publication
          or in a broadcast of the proceedings of a public
          meeting, or, except if neither the public nor a
          news reporter is admitted, of a meeting of a
          municipal council, school board, board or local
          authority formed or constituted under any Act, or
          of a committee appointed by any of the above
          mentioned bodies, or of a meeting of commissioners
          authorized to act by letters patent, Act or other
          lawful warrant or authority, or select committees
          of the Legislative Assembly, and the publication
          at the request of a government office or ministry,
          or a public officer, of a notice or report issued
          for the information of the public, is privileged,
          unless it is proved that the report or publication
          was published or made maliciously. _
          
          (3) The protection intended to be afforded by this
          section is not available as a defence in
          proceedings if it is proved that the defendant has
          been requested to insert in the newspaper or other
          periodical publication, or to broadcast in the
          same manner as that, in which the report or other
          publication complained of appeared, a reasonable
          letter or statement by way of contradiction or
          explanation of the report or other publication and
          has refused or neglected to insert it.
          
          (4) This section does not limit or abridge a
          privilege now existing by law, or protect the
          publication of matter not of public concern and
          the publication of which is not for the public
          benefit.

151.      At common law, in a civil defamation case, a defence of
qualified privilege protects fair and accurate reports by the
news media of the public proceedings of institutions such as
Parliament, the legislative assemblies of the Provinces, the
courts and quasi-judicial tribunals.   "The reason for this
protection is that members of the public are entitled to be
present at such proceedings and it is in the public interest that
as many people as possible should know what is taking place even
though they cannot all be present.  [Macintosh v Dun [1908] AC
390]:  Carter-Ruck on Libel and Slander, at 139.

152.      The Press Council respectfully submits that a group
defamation law which does not recognize such a defence cannot be
regarded a reasonable or as demonstrably justified in a free and
democratic society. In this regard, the British Columbia Human
Rights Code censorship section mirrors the failure of apartheid
South Africa to provide such an exemption from the censorship
provisions of the Publications Act.

The Human Rights Code Gives No Value Or Recognition Whatsoever To
Freedom Of Expression In A Free And Democratic Society.  In this
regard the Code differs from the international treaties
concerning human rights and from the statutes of many other
democratic jurisdictions including all of the Canadian provinces
except Manitoba, which does not contain a "group defamation"
provision of the type found in the Code.

153.      The 1993 amendment to the Human Rights Code removed the
explicit speech protection in the former Human Rights Act that
said "a person may, by speech or in writing, freely express his
opinions on a subject."

154.      With the exception of Manitoba, every other human
rights statute of Canadian provinces and territories which
contains a prohibition against "discriminatory publications" also
contains an exemption for the expression of opinion.  Manitoba's
statute does not apply to newspapers.  Accordingly, British
Columbia is the only Canadian province with a "group defamation"
prohibition that does not contain an exemption for the expression
of opinion in the news media.  The other provinces provide the
following exemptions (or defences) for free speech:
     
     1)   Alberta, Human Rights, Citizenship and Multiculturalism Act,
          section 2(2) states: "Nothing in this section shall be deemed to
          interfere with the free expression of opinion on any subject.";
2)   The Saskatchewan Human Rights Code states in section 14(2):
"Nothing in subsection (1) restricts the right to freedom of
speech under the law upon any subject."
3)   Quebec, Charter of Human Rights and Freedoms, article 3
states:  Every person is the possessor of the fundamental
freedoms, including freedom of conscience, freedom of religion,
freedom of opinion, freedom of expression, freedom of peaceful
assembly and freedom of association.";
4)   Newfoundland, Human Rights Code, section 14(2) states
"Nothing in this section interferes with the free expression of
opinions upon a subject by speech or in writing.";
5)   New Brunswick, Human Rights Code, section 6(2) states:
"Nothing in this section interferes with, restricts, or prohibits
the free expression of opinions upon any subject by speech of in
writing.";
     
     6)   Nova Scotia, Human Rights Act, section 7(2) states: "Nothing
          in this Section is deemed to interfere with the free expression
          of opinion upon any subject in speech or in writing."
     
     7)   Ontario, Human Rights Code, states in section 13(2):
          "Subsection (1) shall not interfere with freedom of expression of
          opinion.
     
     8)   Prince Edward Island, Human Rights Act, section 12(2)
          states: "Nothing in this section shall be deemed to interfere
          with the free expression of opinion upon any subject in speech or
          in writing.";
     
     9)   Northwest Territories, Fair Practices Act, states in section
          5(2): "Nothing in subsection (1) interferes with the free
          expression of opinion on any subject."

155.      The Human Rights Code of the Yukon Territory, although
it does not contain a "discriminatory publications" prohibition
like the other provinces and territories, states in section 4:
"Every individual and every group shall, in accordance with the
law, enjoy the right to freedom of expression, including freedom
of the press and other media of communication."

156.      At the time the 1993 amendment to the Human Rights Code
was before the British Columbia Legislature, the New Democratic
Party government claimed that a human rights statute should not
contain free speech protection because that such a clause would
mislead Human Rights officials into giving improper importance to
free speech.  The Press Council respectfully submits that
explanation is nonsense.  We need only look to principal
international instruments concerning human rights which
unashamedly and explicitly recognize the fundamental importance
of freedom of expression: The Universal Declaration of Human
Rights (1948), Article 19;  The European Convention on Human
Rights (4 November 50), Article 10, , and The International
Covenant on Civil and Political Rights (16 December 66), Article
19; and The International Convention on the Elimination or Racial
Discrimination (7 March 1996), Article 5.

157.      The Universal Declaration of Human Rights (1948)
provides, inter alia: "Article 19   Everyone has the right to
freedom of opinion and expression: this right includes freedom to
hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of
frontiers."

158.      The European Convention on Human Rights (4 Nov
50),provides, inter alia:
          
          ARTICLE 10
          
          1.  Everyone has the right to freedom of
          expression.  This right shall include
          freedom to hold opinions and to receive and
          impart information an ideas without
          interference by public authority and
          regardless of frontiers. This article shall
          not prevent States from requiring the
          licensing of broadcasting, television or
          cinema enterprises.
          
          2.  The exercise of these freedoms, since it
          carries with it duties and responsibilities,
          may be subject to such formalities,
          conditions, restrictions or penalties as are
          prescribed by law and are necessary in a
          democratic society, in the interests of
          national security, territorial integrity or
          public safety, for the prevention of
          disorder or crime, for the protection of
          health or morals, for the protection of the
          reputation or the rights of others, for
          preventing the disclosure of information
          received in confidence, or for maintaining
          the authority and impartiality of the
          judiciary."

159.      Article 10 of the European Convention was considered in
Goodwin v The United Kingdom (16/1994/463/544) March 27, 1996,
where the European Court of Human Rights, overturning a decision
of the House of Lords, which gave great weight to the importance
of freedom of expression and confirmed the importance of
preserving the independence of the news media.  The case
concerned the right of a journalist to protect a confidential
source.  The European Court stated at 17:
          
          The Court recalls that freedom of expression
          constitutes one of the essential foundations
          of a democratic society and that the
          safeguards to be afforded to the press are of
          particular importance...
          
          Protection of journalistic sources is one of
          the basic conditions for press
          freedom...Without such protection, sources
          may be deterred from assisting the press and
          informing the public on matters of public
          interest.  As a result the vital public watch-
          dog role of the press may be undermined and
          the ability of the press to provide accurate
          reliable information may be adversely
          affected.  Having regard to the importance of
          the protection of the journalistic sources
          for press freedom in a democratic society and
          the potentially chilling effect an order of
          source disclosure has on the exercise of that
          freedom such a measure can not be compatible
          with Article 10 of the Convention unless it
          is justified by an overriding requirement in
          the public interest.

160.      To fully understand the importance that the European
Court of Human Rights gave to freedom of expression, one must
know that United Kingdom legislation already afforded what some
might regard as significant protection for confidential sources.
Nevertheless the European Court held that the following
provisions of s. 10 of the United Kingdom Contempt of Court Act
1981 were inadequate:
          
          "No court may require a person to disclose,
          nor is any person guilty of contempt of court
          for refusing to disclose the source of
          information contained in the publication for
          which he is responsible, unless it be
          established to the satisfaction of the court
          that disclosure is necessary in the interests
          of justice or national security or for the
          prevention of disorder or crime."

161.      In the English courts, Goodwin, a journalist, was found
guilty of contempt of court for refusing to name his source and
fined 5,000 pounds sterling.  The European Court of Human Rights
reversed the orders and the finding of contempt.  The Court held
the protection of journalistic sources is one of the basic
conditions for press freedom, and went on to state at p.17:
          
          "As a matter of general principle, the
          "necessity" for any restriction on freedom of
          expression must be convincingly established
          (see the Sunday Times v. The United Kingdom
          (no. 2) Judgment of 26 November 1991, Series
          A, No. 217, pp., 28-29, Article 50) for a
          statement of the major principles governing
          the "necessity test").  Admittedly, it is in
          the first place for the national authorities
          to assess whether there is a pressing social
          need for the restriction and, in making their
          assessment, they enjoy a certain margin of
          appreciation.  In the present context,
          however, the national margin of appreciation
          is circumscribed by the interest of
          democratic society in ensuring and
          maintaining a free press.  Similarly that
          interest will weigh heavily in the balance of
          determining, as must be done under paragraph
          2 of Article 10, whether the restriction was
          proportionate to the legitimate aim pursued.
          In sum, limitations on the confidentiality of
          journalistic sources call for the most
          careful scrutiny by the Court." [emphasis
          added]

162.      The protections for freedom of expression in Article 10
of the European Convention on Human Rights were also considered
by the European Court of Human Rights in Lingens Case (8 July
1986).  The Court held that there had been a breach of Article 10
where a journalist complained of his conviction for "defamation
through the press" under Article 1 para 2 of the Criminal Code of
Austria, which provides:
           
           "1.  Anyone who in such a way that it may
           be perceived by a third person accuses
           another of possessing contemptible
           character or attitude or of behaviour
           contrary to honour or morality and of such
           a nature as to make him contemptible or
           otherwise lower him in public esteem shall
           be liable to imprisonment not exceeding six
           months or a fine.
           
           2.  Anyone who commits this offence in a
           printed document, by broadcasting or
           otherwise in such a way as to make the
           defamation accessible to a broad section of
           the public shall be liable to imprisonment
           not exceeding one year or a fine.
           
           3.  The person making the statement shall
           not be punished if it is proved to be true.
           As regards the offence defined in paragraph
           1, he shall also not be liable if
           circumstances are established which gave
           him sufficient reason to assume that the
           statement was true."

163.      The Criminal Code of Austria provided in Article 112
that "evidence of the truth and good faith shall not be
admissible unless the person making the statement pleads the
correctness of the statement or his good faith..."

164.      The facts of the defamation are recited in the judgment
of the European Court of Human Rights at pages 26-27:
           
           "43  The applicant was convicted because he
           had used certain expressions ("basest
           opportunism", "immoral" and "undignified")
           apropos of Mr. Kreisky, who was Federal
           Chancellor at the time, in two articles
           published in the Viennese magazine Profil
           on 14 and 21 October 1975 (see paragraphs
           12-19 above).  The articles dealt with
           political issues of public interest in
           Austria which had given rise to many heated
           discussions concerning the attitude of
           Austrians in general- and the chancellor in
           particular - to National Socialism and to
           the participation of former Nazis in the
           governance of the country.  The content and
           tone of the articles were on the whole
           fairly balanced but the use of the
           aforementioned expressions in particular
           appeared likely to harm Mr. Kreisky's
           reputation."

165.      The Court continued at pages 27-28:
          
          _The defendant had submitted that the
          observations in question were value-judgments
          made by him in the exercise of his freedom of
          expression (see paragraphs 22 and 29 above).
          The Court, like the Commission,, shares this
          view  The applicant's criticisms were in fact
          directed against the attitude adopted by Mr.
          Kreisky, who was Federal chancellor at the
          time.  What was at issue was not his right to
          disseminate information but his freedom of
          opinion and his right to impart ideas; the
          restrictions authorised in paragraph 2 of
          Article 10 nevertheless remained applicable.
          
          46.  The relevant courts then sought to
          determine whether the defendant has
          established the truth of his statements; this
          was in pursuance of Article 11 para 3 of the
          Criminal Code (see paragraph 20 above).  They
          held in substance that there were difference
          ways of assessing Mr. Kreisky's behaviour and
          that it could not logically be proved that
          one interpretation was right to the exclusion
          of all others; they consequently found the
          applicant guilty of defamation (see
          paragraphs 24, 26 and 29 above.)
          
          In the court's view, a careful distinction
          needs to be made between facts and value-
          judgments.  The existence of facts can be
          demonstrated, whereas the truth of value-
          judgments is not susceptible of proof.  the
          court notes in this connection that the facts
          on which Mr. Lingens founded his value-
          judgment were undisputed, as was also his
          good faith (see paragraph 21 above).
          
          Under paragraph 3 of Article 111 of the
          Criminal Code, read in conjunction with
          paragraph 2, journalists in a case such as
          this cannot escape conviction for the matters
          specified in paragraph 1 unless they can
          prove the truth of their statements (see
          paragraph 20 above)...
          
          47. From the various foregoing considerations
          it appears that the interference with Mr.
          Lingens' exercise of the freedom of
          expression was not  "necessary in a
          democratic society ...for the protection of
          the reputations...of others"; it was
          disproportionate to the legitimate aim
          pursued.  there was accordingly a breach of
          Article 10 of the Convention."

166.      Some explanation of the role of the European Commission
of Human Rights is necessary because the Commission is mentioned
in Lingens Case.

167.      The Council of Europe was founded in 1949 as an
organization to promote unity and cooperation among the European
nations. As its first major human rights activity, it established
the Convention for the Protection of Human Rights and Fundamental
Freedoms (also known as the European Convention on Human Rights),
which was signed by the member nations in 1950 and entered into
force in 1953. The Convention created two bodies: the European
Commission of Human Rights (1953), and the European Court of
Human Rights (began in 1959). Although both bodies adjudicate
human rights questions, they are subsidiary to the national
courts of the Council's member nations.

168.      The European Commission of Human Rights reviews
petitions or applications from individuals or member nations
concerning human rights violations of the Convention. It decides
on the admissibility of applications and acts as an intermediary
in order to reach a friendly settlement. If this is not reached,
the Commission drafts a report that is sent to the European Court
of Human Rights to decide whether a violation has taken place.
The European Court of Human Rights is not a court of appeal from
the Commission; it hears disputes which the Commission could not
settle.


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