Mass Media and the Law

Question 1. 

Saumur v Quebec (1953) 2 S.C.R 299 

Facts : Saumur was a member of the Jehovah witness church in Quebec City. A by-law of the city no. 184 prohibited the distribution of pamphlets without getting permission from the Chief of police. According to Saumur, his freedom of speech, religion, and press provided by the British Constitution allows him to distribute the biblical material as well as preach the gospel orally. He claimed that the city bylaw no. 184 was ultra vires, discriminatory, and unconstitutional. Saumur went to court to get a permanent injunction against the Quebec City from enforcing the by-law. 

Legal Issue : Whether by-law no. 184 was ultra vires and unconstitutional since the constitution provided for the freedom of religion, freedom of press, and freedom of speech. 

Court reasoning : Rand J noted that the freedom of worship and freedom of speech are primary liberties that all citizens should enjoy and should not be infringed by anyone. As such, these freedoms cannot be triumphed by any by-laws set by a municipal. 

Holding : The Quebec by-law no. 184 was preventing Saumur from enjoying his freedom of religion. 

Switzman v Elbing and Attorney General of Quebec (1957) 

Facts: The Quebec legislature had passed the Padlock Law in 1937. This Act was meant to stop any propagation of the communist ideology. Switzman’s landlord had sued him for using his property illegally by promoting the communist ideology basing his allegations on the Padlock Act. The Quebec court found the Act Intra vires . Switzman appealed on the grounds that the padlock Act was unconstitutional and it should be declared ultra vires. 

Legal Issue : Was the Padlock Law a violation of the freedom of speech? 

Holding : The Padlock Law was ultra vires and a violation of freedom of speech. 

Reasoning : The court noted that a province is not allowed to use what is substance and pith in criminal law to prohibit the freedom of religion and freedom of speech. 

It can be said that most Canadians are proud of these two cases being a part of our legal history, and this is mostly because of the role that the said cases played in helping establish and cement our freedom of expression and to information. 

Question 2. 

The Federal Court of Appeal in Canada found Section 13 of the Human Rights Law that governs hate messages in the internet to be valid, constitutionally speaking. The court argued that the law does not violate anyone’s freedom of expression. It further noted that the penalty of this law which is set at $10,000 to be reasonable as it will deter citizens from engaging in such activities. The government, on the other hand, cited the penalty prescribed for this Section as a quasi-criminal punishment which plays a role in invalidating the Human Rights Act. Generally, it is not in the courts’ position to give remedies to such issues as they are not equipped to do so. It is the work of the legislature to do so (Brean, 2014). This issue is a clear abuse of power by the judicial system. The legislature should be left to do their job which is to come up with laws and propose penalties for anyone who breaches these laws. The role of the court in such issues should only be to determine whether the penalty or remedy prescribed by the parliament is within the measure of reasonableness. 

In his ruling, Justice Richard Mosley in the case of Canadian Human Rights Commission v Richard Warman, the A.G and Marc Lemire found s.13 of the Human Rights Act to be constitutional but the huge penalties were found to be unconstitutional. The government of Canada sought to repeal Section 13 because it violates the right to free speech and is not an effective means of combating hate speech on the internet. On the contrary, s.13 would have been an oppressive law that in turn, would have violated the freedom of expression of all Canadian citizens. However, the goodness of S.13 is that it would have deterred all Canadian citizens from talking ill of others, and most especially of the minority on the internet. 

Question 3 

Countries are ranked based seven indicators. This indicators include; pluralism which shows how opinions are represented by the media, media independence, environmental and self-censorship, the legislative framework in the country, level of transparency within institutions, quality of infrastructure, and the level of abuse. These indicators are scored between zero to one hundred with 100 being the worst score and zero being the best score. The countries ranked highly in terms of respecting the freedom of press are Norway, Netherlands, and Finland. In 2014, Canada was number 18 with a score of 10.99 with the U.S taking position 46. In the U.S the freedom to information has experienced freedom as journalists have often been harassed and others jailed for refusing to reveal their sources. The Espionage Act has also posed some problems to journalists as they are often tried using the Act (Reporters without Boarders, 2014). 

Question 4 

A “libel chill” is the discouragement to exercise your legal rights by way of the threat of a lawsuit. In the past, anyone could be sued in Britain for articles published in any country. This law made the country “a mecca for aggrieved people from around the world who would have wanted to sue for libel.” (Lyall, 2009) The libel laws are also a threat to free speech. People such as scientists and journalists have suffered from these libel laws as major corporations use them to silence them from writing articles that criticize them or simply do not please them (Independent, 2011). In my opinion, the proposed changes to the British law on defamation will fix the problem. This is because, the proposed changes will make it hard for rich individual and corporations to bully the media by using the British courts to silence them. In most cases, people refrain from publishing or saying something which they could say lawfully for the fear of getting sued for defamation. 

Question 5 

A SLAPP plaintiff is a plaintiff who brings a strategic lawsuit against public participation in order to intimidate the critics and silence them by giving them the cost burden of preparing a legal defense which makes them abandon their criticism. Richard Warman could be described as a SLAPP plaintiff. In the case Warman v Fournier , Warman sued Fournier, alongside other john Does, to disclose personal information and identities of anonymous persons who had posted defamatory information in a website, acting. The case was held in his favor where he was awarded costs of $85,000 and damages amounting to $42,000 which forced the Free Dominion website to close. 

In Morries v Johnson , it was held that the plaintiff had failed to establish a prima facie case as in the Warman v Fourier which meant that the motion to compel the defendants to reveal the identity of the John Does was dismissed. The Civil liberties Association in this case argued that the public’s freedom of speech needed to be reconciled with the interests of the plaintiff. It also submitted that the court needed to address the chilling effect on the freedom of speech that comes with the disclosure of identities. In my view, the law should be able to address the fine line between cyber bullying and anonymous participation in public debates to avoid the chilling effects brought by the uncertainty that usually clouds such like cases. 

Question 6 

From the decisions in Warman v Fournier and Morris v Johnson , the court noted that charter values do not apply strictly to private legislation alone, which would usually pit litigants who haven’t invoked a state action in their case against each other. Civil procedure rules are statutes and can be interpreted to be consistence with charter values and rights. The test developed in Warman is for review of the competing interests of freedom to privacy and expression in public speech and the public interests in administering justice. This was a huge decision as it helped the country develop its own precedent on freedom of expression against the public interests, something that was not clearly provided for at common law. 

Reference List 

Brean, Joseph. (2014) Court finds Internet Hate Speech Law Section 13 to be Constitutionally Valid, doesn’t Violate Freedom of Expression. National Post . Retrieved from http://nationalpost.com/news/canada/court-finds-internet-hate-speech-law-section-13-to-be-constitutionally-valid-doesnt-violate-freedom-of-expression/wcm/42066dd1-a61b-471e-958a-a4074ce76f9b 

Independent. (2011) Leading Article: Our Libel Laws have become a Threat to Freedom of Speech. Independent . Retrieved from http://www.independent.co.uk/voices/editorials/leading-article-our-libel-laws-have-become-a-threat-to-freedom-of-speech-2179186.html 

Lyall, Sarah. (2009) Britain, Long a Libel Mecca, Reviews Laws. New York Times , Retrieved from http://www.nytimes.com/2009/12/11/world/europe/11libel.html 

Reporters without Boarders. (2014) World Press Freedom Index 2014. rfs.org , Retrieved from https://rsf.org/en/world-press-freedom-index-2014