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A publication ban is a court order which prohibits the public or media from disseminating certain details of an otherwise public judicial procedure. In Canada, publication bans are most commonly issued when the safety or reputation of a victim or witness may be hindered by having their identity openly broadcast in the press. They are also commonly issued when the crime involves minors or is sexual in nature.
In countries where press freedom is the norm, an actual ban on publication is used mostly for ongoing court cases where publicity may affect the case.
There are several types of publication ban permitted under the Canadian criminal code:
- An order restricting the publication of information identifying complainants of sexual offences [ s.486.4 ]
- An order restricting publication of information identifying victims and witnesses [ s.486.5(1) ]
- An order restricting publication of information identifying a justice system participant [ s.486.5(2) ]
Under s. 486.6, anyone who violates any of these orders (s. 486.4(1), (2) or (3) or 486.5(1) or (2)) can be liable for a summary conviction offence.
General Publication Ban (s. 486(1),(2))
Section 486.5(1) provides the court with the authority to make an order "directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice."
While section 486.5(2) provides the authority to make an order to not reveal "information that could identify the justice system participant".
This can be applied for by a prosecutor, a victim or a witness, a judge or justice. (s. 486.5(1))
Under s.486.5(4), the application must be made in writing and notice must be given to the prosecutor, accused, or any other person affected by the order that the judge specifies. The application itself as well as the contents of a hearing on the application cannot be published.(s. 486.5(6), (9))
The order shall only be made where the applicant establishes that the order is "necessary for the proper administration of justice". (s. 486(1), (2), (5))
The factors that must be considered to decide whether to proceed are set out in s. 486.5(7):
- (a) the right to a fair and public hearing;
- (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
- (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
- (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
- (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
- (f) the salutary and deleterious effects of the proposed order;
- (g) the impact of the proposed order on the freedom of expression of those affected by it; and
- (h) any other factor that the judge or justice considers relevant.
Sexual Offence Publication Ban
Under s. 486.4 (1), the court may make an order "directing that any information that could identify the complainant or a witness" not be published, broadcast or transmitted for any sexual offences (as listed in s. 486.4(1)(a)).
Any complainant or witness under the age of 18 years old must be notified of their right to make an application for an order, and if requested by the complainant, prosecutor or witness under 18 years of age, the judge must made the order. (s. 486.4(2))
Similarly, under 486.4(3), for charges under 163.1, the court must make an order in relation to any person who comprises the subject of child pornographic materials.
Jury Identification Ban
Under 631(6), the court or crown may order a publication ban on any information that may tend to identify jury members where it "is necessary for the proper administration of justice".
In Canada, the role of publication bans came under intense scrutiny in April, 2005 when Justice Gomery issued a publication ban on the testimony of three key witnesses at the Gomery Inquiry in the sponsorship scandal. The ban was granted at the request of the lawyers for the Jean Brault, Paul Coffin and Chuck Guite who argued intense media coverage would bias potential jurors for their upcoming criminal trials. Shortly after the ban was issued, however, an editorialized summary of Brault's testimony was posted on an American blogger's website where it was immediately accessible and well known to Canadians interested in the story. Also, somewhat strangely, the inquiry remained public to anyone willing to venture to where the proceedings were being held; thus, the opposition parties were aware of what was being revealed at the inquiry, even while their respective leaders were kept intentionally unaware to prevent them from accidentally violating the ban at a press conference. Justice Gomery later lifted the ban on most of the testimony.
In January 2005, author Stephen Williams was sentenced for violating the publication ban by including forbidden details in his two books on Paul Bernardo and Karla Homolka, making him only the second person sentenced for violating the publication ban—the first being one of the "Electronic ban breakers". Stephen Williams reached a plea agreement with the Canadian authorities in which he agreed that he would no longer use "any materials belonging to the Crown" as part of his writings.
In the UK
An order prohibiting publication under Section 11 of the Contempt of Court Act (1981) was issued forbidding any United Kingdom newspaper from releasing certain information regarding a memo which is alleged to have been an official transcript of a conversation between U.S. President George W. Bush and UK Prime Minister Tony Blair, which in the context of the planning for the 2003 invasion of Iraq, regarded a plan to bomb selected offices of the Arabic language Al Jazeera television news station.
In the US
A notable legal dispute between the governments attempt to censor newspapers occurred in the context of the Watergate Scandal during the early 1970s. The Richard Nixon administration attempted to block the New York Times and the Washington Post from publishing information contained in the Pentagon Papers. The matter was resolved after a two-week delay by the United States Supreme Court in the New York Times Co. v. United States case, wherein the Court ruled that the publication ban was a violation of the First Amendment right to free speech.
- "Top court lifts ban in Stafford case". CBC.ca. December 9, 2010. Retrieved 2010-12-09.
- Cathcart, Brian. "Reporting restrictions have been lifted - by the Internet." The Independent. Sunday February 19, 1995. Retrieved on October 11, 2010. "These questions would not arise in the United States, where the First Amendment, guaranteeing freedom of speech, ensures that the media enjoy great latitude in the coverage of criminal investigations and trials."