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  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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