Supreme Court backs CBC against bid to ‘unpublish’ internet story

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The Supreme Court has refused to order the Canadian Broadcasting Corp. to remove a story from its website after the public broadcaster was charged with criminal contempt of court for refusing to do so.

In a case closely watched by media observers because of its importance to internet publishing, the court's 9-0 ruling released on Friday signalled that trying to force news agencies to "unpublish" material will be an uphill battle for any government, corporation or individual.

Fred Kozak, an Edmonton lawyer who represented the CBC, called the ruling an important one for freedom of expression. He said he was surprised the Alberta Crown brought the charge because "unpublishing" internet material is a new issue for the courts.

"It was shocking to me that the Crown reacted this way," he said in an interview. "Information today is captured in a variety of ways. Newspapers publish broadsheets that go to libraries and they're archived. If at some point down the road, some aspect is subject to a ban, nobody says newspapers have to retrieve that information from the library. The library copy represents history."

The Alberta Justice Department was not prepared to comment on the Supreme Court ruling when a spokesman was contacted on Friday afternoon.

Two years ago, the CBC posted to its website a story and photograph of a 14-year-old girl who was a homicide victim. Several days later, after a man was charged in her death, the Crown applied for a publication ban on her identity. Under the Youth Criminal Justice Act, victims of crime under 18 have a similar right to anonymity as those who are charged or convicted under that act. Once a prosecutor (or a victim) requests a ban, the judge must impose it.

With the ban in place, the Alberta Attorney-General demanded the CBC remove its story and photograph, and when the CBC refused, it asked a judge to cite it for criminal contempt of court – based on what it called public defiance of a court order. Pending a hearing on that issue, the Attorney-General also sought a court order requiring CBC to remove the material.

Justice Peter Michalyshyn of the Alberta Court of Queen's Bench refused to grant that court order, saying the constitutional right of freedom of expression was at issue, the criminal contempt charge was not likely to succeed, and the harm to the public was slight, if any.

But Alberta's Court of Appeal overturned that ruling 2-1 and ordered the CBC to remove the material. CBC appealed to the Supreme Court.

Alberta prosecutors had argued that the case was not about freedom of expression but defiance of a court order, bringing harm to the justice system, and discouraging young victims of crime from reporting them. The Supreme Court did not deal with that issue or offer a defence of free expression. It said the Alberta Attorney-General had to meet a high standard to force the CBC to delete material before its trial for criminal contempt: It needed to show a strong likelihood of a guilty verdict.

And the court said it had not done so or, at least, Justice Michalyshyn decided it had not, and he was in the best position to know.

"The effect of it all is to give greater protection to free-expression rights," Iain MacKinnon, who represented a media coalition (including The Globe and Mail) that intervened in the case, said in an interview. "You have to have a very strong case right out of the gate to get someone to remove an article."

The CBC has been acquitted of the criminal contempt charge by an Alberta judge.

"There is no evidence that CBC is doing anything but opening its library or allowing access to what has been written to those who might ask," Justice Terry Clackson of the Alberta Court of Queen's bench ruled last May in acquitting the CBC. It therefore was not "publishing" the material covered by the ban, he said.

He also said the CBC had taken a stand on principle.

"This is a case where the challenge is not to the Court's authority but a challenge to the Crown's interpretation of the Court's order," he wrote. "That kind of challenge is to be expected and even encouraged in a free and democratic society."

But the Crown has appealed the ruling. "Every media organization, and every individual with an online platform, has been handed an incentive to rush to publish information before a ban can be issued," Iwona Kuklicz, counsel for the province's Justice Department, said in a written argument filed with the Alberta Court of Appeal.

The issues at the heart of the case may yet reach the Supreme Court, Mr. MacKinnon said.