Legal decisions threaten press freedom
By Ulli Diemer
Seven News, March 23, 1979
The calendar of our times suffers from no shortage of black marks commemorating particularly depressing events. Significantly, however, the most ominous and widely known date in our political history lies not in our past but in our future. Symbolic of modern societies’ drift to increasing barbarity, brutality, and totalitarianism, that date, 1984, is now a mere five years in the future.
With the countdown to 1984 now at minus five, we might do well to ask ourselves what chance there is that the world in 1984 will actually resemble the nightmare society of George Orwell’s bleak novel. If we do so, we will find that to a great extent the world of Big Brother is already in existence in one form or another across most of the globe. A majority of the world’s people live, right now, under dictatorships marked by one-party rule, tight government control over the media and education, and arbitrary police power. Only a relative handful of countries, Canada among them, still maintain some semblance of a pluralistic society.
But even in Canada the situation is not nearly as rosy as many of us would like to believe, and, more importantly, things are getting steadily worse. Press freedom is under attack, computer systems and police files are undermining our privacy, books are being banned, trials are being held is secret, police powers are being greatly expanded, governments are competing with each other in passing repressive legislation.
This trend is deeply disturbing, but even more disturbing is the lack of outcry with which it has been met. In a society where most of us have so little freedom to do what we wish with our lives, one would suppose that people would be looking for ways to extend the sphere of rights and freedom, rather than standing passively by while it is being constantly reduced.
“Freedom of the press”
Yet how many people are even aware, for example, of recent decisions constricting freedom of the press in Canada? A comment on the term, “freedom of the press”, is in order: Freedom of the press is unfortunately not a freedom that belongs to everyone equally, or to most people at all. It is inseparable from the power to publish: in the words of the well-known phrase “Freedom of the press belongs to those who own one.” And they have it in proportion to their economic clout: the publishers of the Toronto Star have a thousand times as much “freedom of the press” as the people who write for 7 News. Nevertheless, it is something. In however a stunted and unsatisfactory form, “freedom of the press” exists, and can potentially be expanded. An attack on it is therefore an attack that should concern us all: “Whenever a particular freedom is put in question, freedom in general is put in question.”
Negative legal decisions
At one time, the legal rights of a Canadian newspaper in commenting on events were much stronger than they have been in recent years. These rights, however, were severely narrowed by a pair of Supreme Court decisions in 1960 and 1961, and since then the media have relied almost exclusively on the defence of “fair comment” in fending off libel suits by people in the news who feel themselves wronged. However, “fair comment” has itself now been significantly undermined by a series of recent decisions:
In 1974, the CBC produced a program called “Dying of Lead”, which dealt with lead pollution. The program brought on a libel suit from a Dr. Donald Barltrop, a paid consultant to Riverdale’s Canada Metals Co. He sued because another doctor interviewed on the program said that “Dr. Barltrop is a paid consultant to the lead industry. He is paid to say what he has just said.” In 1977, a Court of Appeal convicted the CBC of libel because it said that the statement quoted contained an implication that Barltrop was professionally dishonest. This represented a significant departure from earlier precedents, which had held that libels must at least be explicit, not merely interpreted as being implied. Formerly, similar comments had been held to be “fair comment”. The Supreme Court has refused to allow the decision to be appealed.
Also in 1977, the Vancouver Sun was sued for libel after it criticized Liberal MP Simma Holt for interviewing followers of Charles Manson while touring American prisons for the House of Commons Committee on Prisons. The Sun editorially commented that this was not what Holt was “paid to be doing” and that she ought to “keep her mind on the task at hand”. The Sun was convicted of libel.
Even letters and cartoons
Earlier this year, the Supreme Court found the publisher of the Saskatoon StarPhoenix guilty of libel because the paper printed a letter to the editor referring to Saskatoon alderman and lawyer Morris Cherneskey. According to Bi-Monthly Reports, which published an analysis of the case, “the crux of the court’s decision was the newspaper, in publishing such a letter, must actually agree with the contents of the letter – as well as proving that it is the letter writer’s honest opinion – in order to plead fair comment as a successful defence to a libel action. What the decision means is that any publisher of a ‘fair comment’ must actually agree with the comment...” A key point in the trial was that the writers of the letter had left Saskatchewan and that therefore it could not be proved that they actually agreed with the letter as it had been published. The publisher was held liable, even though he did not agree with the contents of the letter.
Also earlier this year, the Victoria Times and cartoonist Bob Bierman were found to have libelled then-Human Resources Minister William Vander Zalm after publishing a cartoon showing Vander Zalm pulling the wings off flies. A defence that cartoons normally deal in exaggeration and symbolic actions which are not to be construed literally was to no avail.
In a different kind of decision, the CTV Television Network was issued an injunction earlier this month forbidding it to air an interview with Margaret Trudeau. The court took upon itself the right to pre-censor CTV’s program because it might hurt sales of Mrs. Trudeau’s upcoming book.
Another case in which the Toronto Sun has been charged with violating the Official Secrets Act, is still awaiting a verdict. Prosecutors pressed charges although or the 16 items used in the column in question, 11 had been used in a television program a month earlier, while three others had been discussed in Parliament by MP Tom Cossitt.
One bright note among all these unfavourable decisions has been the recent acquittal of the Body Politic on a charge of transmitting indecent, immoral or scurrilous material through the mails. The Body Politic had published an article which discussed sexual relations between adults and children.
Body Politic victory
The court’s decision was that it is not illegal to write about things that are immoral or even illegal (this can hardly be news to fans of murder mysteries). At the same time, however, the Body Politic trial demonstrates very clearly how even unsuccessful prosecutions or libel suits can have a serious deterrent effect on the press by making it extremely cautious in avoiding anything too controversial lest legal action result. For even an unsuccessful action can destroy a newspaper: the Body Politic had to spend over $30,000 in proving itself innocent, and now has been told that the Crown intends to appeal the verdict. The paper was also the victim of police actions which came close to destroying it: in their raid on the paper, the police carted away 12 packing boxes of essential files from the Body Politic’s office, including subscription and advertiser lists and manuscripts. These will now be presumably returned, and all subscribers on the list will have to presume that photocopies of the Body Politic’s files are now permanently in police possession.
In the face of the onslaught it is facing, it is hardly surprising that the Canadian press is becoming even more conservative and timid than it already is. The situation will likely get worse before it gets better.
Rights and Liberties
This article was published in Seven News, Volume 9, Number 22, March 23, 1979