Using the Criminal Code to Require News Media to “Un-Publish” Fails

In Canada, s. 486.4(2.1) of the Criminal Code to make an order protecting a victim of a crime from having any information that could identify the victim from being “published in any document or broadcast or transmitted in any way.” The victim has to be under 18 years of age.

A recent decision of the Supreme Court considered a case in which the Crown wanted information published online prior to a publication ban to be “un-published” by the news organization.

R. v. Canadian Broadcasting Corp, dealt with an application for an interim injunction to require the CBC to “un-publish” a story about a murder. Essentially, the facts of the case were: An individual was charged with the murder of a person under the age of 18. The CBC reported on the case and published the victim’s name before the Crown obtained a publication ban regarding the name of the victim. The Crown wanted the CBC to remove the information on the CBC’s website. The CBC refused. The Crown sought an interlocutory order requiring the CBC to remove the name of the victim until the hearing to decide whether the CBC was in criminal contempt for failing to remove the name of the victim.

The Crown was obliged to establish that it had a “strong prima facie case” in order to obtain the interlocutory order requiring the CBC to remove the identifying information of the victim. This is because the order would compel the CBC to “do” something. If the order simply required the CBC to refrain from doing something, the test would be lower.

The key issue was whether the Crown had a strong prima facie case that the CBC was intentionally disobeying a court order. The Crown attempted to argue that publishing on the CBC website was a continuous activity. On this theory, the CBC was directly and intentionally violating the publication ban, even if the original publication occurred prior to the publication ban. The Supreme Court did not rule out the possibility that the Crown would be successful. However, the court concluded that the Crown did not have a strong prima facie case that the publication was a continuous activity. The result was that the CBC did not have to remove the identifying information.

We should be cautious in suggesting that the court’s decision is relevant to the current debate in Canada regarding the type of “right to be forgotten” that Office of the Privacy Commissioner of Canada (OPC) has suggested exists under Canada’s private sector privacy law. I discussed this “right to be forgotten” in a recent post on the OPC’s draft Position on Online Reputation. In that draft Position paper, the OPC suggested that individuals have the right, in certain circumstances, to have inaccurate online information about them removed and could even require search engines remove or suppress search results for an individual’s name on the basis that the information about the individual was not accurate.

There is a fairly wide gulf between the CBC case and the type of “right to be forgotten” discussed by the OPC. Nevertheless, there is one intriguing point of relevance. The court seemed quite skeptical that the mere fact that information remained available online meant that it was being “continuously” published. Provided that the “story” was not “updated” (i.e. “republished”), perhaps the court might be reticent to require the editing of historical documents. It is too soon to tell but not too soon to think about. 

Read R. v. Canadian Broadcasting Corp, 2018 SCC 5.