Privacy 

A vehicle for censorship 
The new act would allow citizens to sue, without proof of damage, if someone invades their privacy — even if that means reporting something that happened in a public place 

By Carolyn Ryan 

At some point between their election in June of 1999 and last Christmas, Bernard Lord's Progressive Conservatives decided to bring in a simple two-page piece of legislation that nobody in New Brunswick seems to like. Not one single citizen appeared to applaud it at public hearings in Fredericton in late March, and a slew of groups ranging from community newspapers to lawyers to insurance companies to security firms stood up to argue against it.

Why are the Tories pushing ahead with it anyway? That's a very good question.

The Privacy Act will give individuals more protection from voyeurs and stalkers by allowing them to sue for damages, Justice Minister Brad Green has said, pointing to the unsavoury case of a peeping Tom who spied on women using the washroom in his own department, discovered just after the Tories took office. That case was an embarrassment for the government, as was the fact that nobody could find a crime with which to charge the culprit. Sadly, he committed suicide soon after, and so the case was closed.

Reporters and journalists in New Brunswick certainly would not object to a law that punished such people and made them liable for civil damages. But as it is drafted, the Progressive Conservatives' legislation goes much further than that.

It wouldn't take long for media managers and their lawyers to weigh the risks and decree that it's not worth it to look into alleged wrongdoing, even if you can prove that what you want to publish is true.

The Saint John Times Globe is not alone in wondering: Could it be that the Tory politicians want to protect themselves from having the truth published when they have done something wrong? The new act would certainly do that, much more effectively than it would keep disturbed, perverted individuals from preying on innocent victims. Deterrence works on the rational (which arguably would include most members of the media and their lawyers), not the irrational.

The Saint John Times Globe was among the media agencies that asked the legislature's law amendments committee to reconsider or rewrite Bill 23.

David Coles, a Halifax lawyer representing the Atlantic Community Newspaper Association, whose members include most of the weekly newspapers in New Brunswick, called the bill "a vehicle for censorship," adding:

"There's going to be a real chilling, a real retraction from vibrant reporting as editors, reporters and photographers have to evaluate in each and every instance, 'Is this revealing something that somebody is going to say is personal to them?' "

"This law would create a lot of work for lawyers, and personally I'm not opposed to that," said Saint John lawyer John Barry, who spoke on behalf of the CBC. "But I don't think we should be making laws just to make work for lawyers."

Journalists have long worked under a set of restrictions that anybody can understand: defamation law, contempt of court, and the Criminal Code, among others. If they are about to publish something that might hurt someone's reputation, they had better be prepared to prove in court that it is true. Absolute and qualified privilege give them more protection for reporting events that happen in a legislature or courtroom, because of the public interest involved in seeing the truth emerge from the cross-examination process or the hurly-burly of political debate. Finally, commentators and editorial cartoonists are allowed the defence of "fair comment," which lets them publish opinions as long as those opinions are firmly founded on facts.

The new act would allow citizens to sue, without proof of damage, if someone invades their privacy, even if that means reporting something that happened in a public place, or gives "undue publicity" to something that should be private.

The main problem, as the Times Globe sees it, is that the act does not define a worrisome handful of key words and phrases, including just what "private information" is, what the legislators believe "undue publicity" to be, how you prove that someone consented to be interviewed and give personal information, and whether calling someone at home for comment amounts to "disturbing" him or her.

Reporters and editors aren't the only ones shaken by this. In a written submission, the New Brunswick Law Society called the legislation "poorly drafted'' and stated that "its inexplicable lack of a definition section is acutely troubling.''

Why is the Lord government widening its net like this, if the main aim of its Privacy Act is attacking stalkers and voyeurs, not journalists? To protect its citizens, or to protect the thin-skinned members of its own ranks?

The Justice Minister has said the courts will have to determine what those words mean, over time, as lawsuits are fought when the act is proclaimed.

To a journalist, that's like getting a driver's licence and being told you could be arrested for going too fast — but nobody will tell you what the speed limit is.

The result, should this bill be passed and used by angry story subjects: The end of truth-based, public service journalism as we know it, and contraints on even the least controversial reporter.

Defending yourself against even one nuisance lawsuit can cost tens of thousands of dollars. The act does give the media a defence if publishing a story can be proved to be in the public interest or protected by privilege as defined in the Defamation Act, and consent is an absolute defence, but the bill can climb pretty high before you get a judge to agree with you. It wouldn't take long for media managers and their lawyers to weigh the risks and decree that it's not worth it to look into alleged wrongdoing, even if you can prove that what you want to publish is true.

Examples of the kind of story that would be vulnerable are not hard to find. Could we report that a mayor parked in a handicapped parking space or used unauthorized advances on her salary to make personal investments, for example? Could we publish photos of an aboriginal leader's palatial home, as part of a story about allegations of financial impropriety? Could we say a prominent opposition politician has been getting job offers from the ruling party? Could we ever again talk to friends, neighbours and colleagues while preparing a profile of a would-be politician, without getting his consent to publish every comment? Could we print a warning when a paroled child molester whom police consider still dangerous moves into town? Could we say that a prominent citizen owns a numbered company that refuses to fix up dangerously dilapidated slum apartment buildings despite multiple bylaw infractions?

Every single one of those situations has led to stories in our the Times Globe in the last few years. All we had to be concerned about was whether they were true and presented fairly, and whether local community standards would forgive any intrusion into personal territory given the major public-interest issues involved.

Even the advertising section would fall under the new rules. Could we run a simple obituary without checking with all the family members mentioned in it? Could we run a "Lordy, Lordy, Look Who's 40" ad? We're not so sure.

Wire services originating from outside New Brunswick are another concern. Could Toronto Mayor Mel Lastman, unable to sue media in Ontario for covering his paternity controversy or his wife's shoplifting habit, look for some revenge against the media in general by going after us for printing a Canadian Press story about the brouhaha? And what of all of Frank magazine's victims? Might the provincial government be trying in a roundabout way to make the slangy mag pull out of this province entirely, or at least not pick on fledgling Tory MLAs, as it has been known to do?

The Justice Minister, while saying that he is open to changing the act slightly, has pooh-poohed the concerns of New Brunswick media ranging from the CBC to the smallest weekly newspaper, pointing out that other provinces with privacy legislation have seen very few cases against the media over the years.

He can name only one successful case, a ruling against Vice-Versa magazine in Quebec, in which a woman successfully sued for damages after a freelance photographer without her consent took and sold a photo of her sitting on the steps of a public building. (In fact, there have been two successful suits in Quebec under that section of the province's Civil Code, and they scare the hell out of media agencies concerned with freedom of expression.)

My own research shows that there have been more than a handful of cases in British Columbia alone, most of which were thrown out after expensive battles. And with New Brunswick's act going farther than those of B.C., Manitoba, Saskatchewan, Quebec and Newfoundland by speaking vaguely of giving something "undue publicity," we fear our Privacy Act would indeed be used against us more often than theirs.

So why is the Lord government widening its net like this, if the main aim of its Privacy Act is attacking stalkers and voyeurs, not journalists? To protect its citizens, or to protect the thin-skinned members of its own ranks?

We've asked the province to either scrap this act entirely or add a blanket exemption for journalistic and artistic endeavours, as was done for the federal government's Bill C-54 after determined lobbying by the Canadian Newspaper Association and Canadian Association of Broadcasters. Its response will answer those questions. 

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Carolyn Ryan is the editor of the Saint John Times Globe and member of Media magazine's editorial board.