Canada Rejects A Free Press: Supreme Court Says Journalist Must Hand Over Sources

from the shameful dept

In a very unfortunate bit of news, the Canadian Supreme Court on Friday ruled that there is no source protection for journalists in Canada, and a Vice Media reporter, Ben Makuch, is required to hand over his sources from an investigation he did with a Canadian man who claimed to have joined ISIS. Makuch had interviewed Farad Mohamed Shirdon back in 2015, and the Royal Canadian Mounted Police (RCMP) demanded access to all of his information. Vice and Makuch refused. In 2016, a lower court ruled against Vice and on appeal, the media organization lost again. Given those two loses, perhaps the eventual Supreme Court ruling isn't that surprising, but it is still extremely disappointing and worrisome.

As Vice noted in an editorial posted after the ruling, this is a dark day for press freedom:

Lawyers for VICE Canada argued unsuccessfully through three levels of court that the RCMP is fishing for information and is effectively forcing a journalist to be an agent of the state. With this court decision hanging in the balance for years, Makuch has continued to produce fearless and important journalism on sensitive and often dangerous topics. Today’s decision will no doubt have a chilling effect on both sources, who may be reluctant to talk to reporters, and on journalists themselves, who could be less inclined to report on sensitive issues.

While our lawyers lost, we strongly believe that the journalism—which is already under attack across the globe—needs to be free from state intervention.

To some extent, we've dealt with this issue in the US as well, where some believe the 1st Amendment should already protect reporters and media orgs from giving up information on sources, but where the government still has gone to court -- such as in the case of James Risen -- to try to force journalists to reveal sources.

And while there have been some attempts at creating so-called "shield laws" against these sorts of things, unfortunately, nearly every attempt to do so would require the government to define who counts as a journalist, which would also be a huge 1st Amendment problem. (And, of course, over in Europe there's an issue where Romania has been trying to use the GDPR to force a reporter to cough up sources).

I know that some people don't think this is that big of a deal, but it is a huge deal if you want journalists to be free to investigate and report on things like government corruption and abuse. To do that, journalists rely on sources providing them information -- and to get sources to provide you information, journalists frequently need to guarantee them anonymity for fairly obvious reasons. But when governments can force away that anonymity, it creates a huge mess. Sources will be much less willing to come forward, as they know that even if a journalist promises protection, they can't guarantee it against a demand from the government. This will lead to significantly less whistleblowing, especially in important cases.

As Vice says:

It should go without saying: we are all better off when journalism operates freely, without interference from the state. Otherwise, leaders remain unchecked, massive corporations undermine elections, and the stories of the most vulnerable members of society remain untold. This might seem like hyperbole, but a quick glance at the recent headlines in any major publication should serve as proof that these things are happening.

It's too bad that Canada has decided to flush that kind of openness away.


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  • icon
    Stephen T. Stone (profile), 3 Dec 2018 @ 12:35pm

    This is one of the few instances where contempt of court (via not revealing the source) is not only justified, but downright obligatory.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      S. O. Wright, 3 Dec 2018 @ 12:43pm

      Re: The bravado of a true keyboard commando, "Stephen"!

      But it's not your freedom in jeopardy.

      They'll cave, like everyone.

      The tyranny of inherited tyrants can only be resisted by the power of common law. Otherwise the loyal royalists will help crush you -- and receive "honors" for it.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 3 Dec 2018 @ 12:49pm

        it's not your freedom in jeopardy

        If it were, I would have the courage to risk my freedom for my principles. Maybe I would crack sooner or later, but I would at least have the courage to put myself in that position.

        The tyranny of inherited tyrants can only be resisted by the power of common law.

        …fucking what

        reply to this | link to this | view in chronology ]

        • identicon
          Shufflepants, 3 Dec 2018 @ 12:54pm

          Re:

          You know. Common law. That thing you're not doing that would fix everything. If only you hadn't rejected it.

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 3 Dec 2018 @ 12:56pm

            Re: Re:

            That thing you're not doing that would fix everything.

            So…watching Black Mirror?

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 3 Dec 2018 @ 8:23pm

            Re: Re:

            This case took place in Ontario, which uses common law. Like everywhere in Canada that's not Québec.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 4 Dec 2018 @ 6:47am

              Re: Re: Re:

              Please define Common Law, within context. This is important, because there is at least one frequent commenter on this site who is consistent in excessive misuse and misapplication of the term.

              reply to this | link to this | view in chronology ]

      • icon
        Gary (profile), 3 Dec 2018 @ 1:11pm

        Re: Re: The bravado of a true keyboard commando, "Stephen"!

        The tyranny of inherited tyrants can only be resisted by the power of common law

        Code word for "Make things up!" Common law is - last I checked - the law derived from judicial rulings and legal precedent.

        In this context, I believe he means "Screw on your tinfoil hat and misquote the constitution!" Of Canada. Or ramble on about some sort of natural law that predates Canadian law?

        reply to this | link to this | view in chronology ]

        • identicon
          Shufflepants, 3 Dec 2018 @ 2:37pm

          Re: Re: Re: The bravado of a true keyboard commando, "Stephen"!

          last I checked - the law derived from judicial rulings and legal precedent.

          Yeah, you didn't check the right place. He's one of those who doesn't know how language works. Only his definition of "common law" is the correct definition, and he refuses to tell us what that definition is.

          reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 4 Dec 2018 @ 8:57am

      Re:

      This is one of the few instances where contempt of court (via not revealing the source) is not only justified, but downright obligatory.

      In case anyone else misunderstood you like I did: I think you're saying that committing contempt of court is justified. I thought at first you were saying the charge of contempt of court is justified.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    S. O. Wright, 3 Dec 2018 @ 12:38pm

    UK serfs have no Rights, only the illusion.

    And yet some are here every day telling us how horrible the US of A is and that our guns should be confiscated so that can't defend ourselves from tyrannicla gov't, nor from unlimited immigrants. In other words, we should commit suicide way Europe is doing.

    Ask your globalist hero Macron how that whole down with nationalism and up with carbon taxes plan is working out recent.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Dec 2018 @ 12:42pm

      A rebuttal, of equal merit as the argument presented:

      If everybody had an ocean
      Across the U. S. A
      Then everybody'd be surfin'
      Like Californi-a
      You'd see them wearing their baggies
      Huarachi sandals too
      A bushy bushy blonde hairdo
      Surfin' U. S. A

      You'd catch 'em surfin' at Del Mar
      (Inside, outside, USA)
      Ventura County line
      (Inside, outside, USA)
      Santa Cruz and Trestles
      (Inside, outside, USA)
      Australia's Narrabeen
      (Inside, outside, USA)
      All over Manhattan
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      And down Doheny Way
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      Everybody's gone surfin'
      Surfin' U.S.A

      We'll all be planning that route
      We're gonna take real soon
      We're waxing down our surfboards
      We can't wait for June
      We'll all be gone for the summer
      We're on surfari to stay
      Tell the teacher we're surfin'
      Surfin' U. S. A

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        S. O. Wright, 3 Dec 2018 @ 12:48pm

        Re: UK serfs have no Rights, only the illusion.

        Sheesh.

        Techdirt fanboys of late seem resolved to destroy the site far faster than I could ever even hope! I am in awe of your "depth".


        Aside to Masnick: remember when I boasted that you'd rather have one of me than a hundred of these? Still even pretend to disagree?

        Don't bother changing cosmetics, just shut the site down. It's now your only rational choice.

        reply to this | link to this | view in chronology ]

        • identicon
          Shufflepants, 3 Dec 2018 @ 12:56pm

          Re: Re: UK serfs have no Rights, only the illusion.

          Don't bother changing cosmetics, just shut the site down. It's now your only rational choice.

          That seems like a rather extreme measure just to get rid of you.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 3 Dec 2018 @ 1:22pm

          A response as rational as S. O. Wright's

          I'd like to be under the sea
          In an octopus' garden in the shade
          He'd let us in, knows where we've been
          In his octopus' garden in the shade

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 3 Dec 2018 @ 1:59pm

            A response as rational as S. O. Wright's

            Three-thirty in the morning,
            Not a soul in sight:
            The city's lookin' like a ghost town
            On a moonless summer night.
            Raindrops on the windshield,
            There's a storm rollin' in;
            He's headed back from somewhere
            That he never should have been.

            And the thunder rolls.
            And the thunder rolls.

            Every light is burning
            In a house across town.
            She's pacin' by the telephone
            In her faded flannel gown,
            Askin' for a miracle,
            Hopin' she's not right:
            Prayin' it's the weather
            That's kept him out all night.

            And the thunder rolls.
            And the thunder rolls.

            The thunder rolls,
            And the lightnin' strikes.
            Another love grows cold,
            On a sleepless night.
            As the storm blows on
            Out of control,
            Deep in her heart,
            The thunder rolls.

            She's waitin' by the window
            As he pulls into the drive.
            She rushes out to hold him,
            Thankful he's alive.
            In all the wind and the rain,
            A strange new perfume blows;
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            And he knows that she knows.

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            The thunder rolls,
            And the lightnin' strikes.
            Another love grows cold, darlin',
            On a sleepless night.
            As the storm blows on
            Out of control,
            Deep in her heart,
            The thunder rolls.

            She runs back down the hallway,
            And through the bedroom door.
            She reaches for the pistol
            Kept in the dresser drawer.
            Tells the lady in the mirror
            He won't do this again,
            'Cause tonight will be the last night
            She'll wonder where he's been

            The thunder rolls,
            And the lightnin' strikes.
            Another love grows cold, darlin',
            On a sleepless night.
            As the storm blows on
            Out of control,
            Deep in her heart,
            The thunder rolls.

            reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 3 Dec 2018 @ 1:47pm

          Re: Re: Blues clues

          I’m pretty sure if there were word crimes, the word rational would have a restraining order to prevent you from ever using it.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 3 Dec 2018 @ 1:49pm

          Re: Re: Blues balls

          Aside to blue: Remember when you literally begged Mike to make the community stop hiding your posts.

          Still pretend that’s not the case?

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Dec 2018 @ 2:54am

          Re: Re:

          First you have to prove Shiva Ayyadurai as the sole inventor of email.

          Oh wait.

          You can't.

          Sucks to be you, blue boy!

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Dec 2018 @ 12:58pm

      Re: UK serfs have no Rights, only the illusion.

      And in the US, you are free to suffer the tyranny of asset forfeiture, having your life ruined by unreliable drug tests, and being shot because the cop thinks that anything other than immediate compliance with their orders endangers their lives.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Dec 2018 @ 12:45pm

    Shouldn't we Annex that Damn country already? The whole population of Canada is about the same as California.

    reply to this | link to this | view in chronology ]

  • icon
    TKnarr (profile), 3 Dec 2018 @ 12:58pm

    There's another solution to the situation, the same solution that the software industry's "responsible disclosure" farce encourages for handling bugs and vulnerabilities. Instead of sources talking to reporters privately and reporters filtering the information to avoid disclosure of anything not truly needed, sources contact reporters anonymously and mass-dump all the original materials through a service like Wikileaks that allows for large-scale duplication making it all but impossible to shove the documents back in the safe. Then reporters don't need to vet the source, they can vet the original documents and report based on that. If the reporter never knows who provided the information, they can't reveal more than that they don't know the source's identity. The government can go chase the original documents and the original source, but the material's still out there regardless so they won't accomplish their goal. Sources of course need to make sure they're untraceable when uploading the information, but that's what they're having to do already so no major change there.

    reply to this | link to this | view in chronology ]

    • icon
      Bamboo Harvester (profile), 3 Dec 2018 @ 2:06pm

      Re:

      That's fine for information that can be vetted on it's own, say by email headers, but does nothing for "whistleblowers" who are simply stating what they witnessed.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Dec 2018 @ 1:09pm

    It would be interesting if this reporter had entirely made up the story, and thus there were no sources to hand over. Would the judge likely accept that answer, or believe that he was lying (about lying) and throw him in jail until he cracks?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Dec 2018 @ 2:19pm

    "First they came for the journalists, and I did not speak out—
    Because I was not a journalist........ "

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 3 Dec 2018 @ 2:37pm

    'Chilling effects'? Funny way to say 'working as intended'

    Otherwise, leaders remain unchecked, massive corporations undermine elections, and the stories of the most vulnerable members of society remain untold.

    Or as corrupt governments and corporations would say, 'That's a feature, not a bug.'

    reply to this | link to this | view in chronology ]

  • icon
    BernardoVerda (profile), 3 Dec 2018 @ 3:03pm

    As I Canadian citizenm I'm soooo embarrassed.

    I thought my country's Supreme Court was smarter than that.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Dec 2018 @ 3:05pm

    Non-compliance?

    Is Makuch prepared to go to jail over this? It would then move from a journalistic mess to a political mess. As a relatively small country, Canada likes to rely on it’s progressiveness and moral authority. It doesn’t help if another country can close down a discourse with “…and you jail journalists.” It certainly won’t be the first time a journalist has been detained at Her Majesty’s pleasure for doing their job.

    reply to this | link to this | view in chronology ]

  • icon
    Gorshkov (profile), 3 Dec 2018 @ 3:47pm

    Close, but not quite

    The story, as characterized, is not quite accurate.

    First - there is no "disclosing" of journalistic sources. The series that was published gave the source, so there's no secret. The stories were based on recorded interviews conducted by Makuch by NAMED SOURCES. There's no secret there to be protected. What the government wanted was access to the recordings themselves to see what else was in there.

    Essentially, the court said "You've already told us who your sources are, so there's no secret to be kept. You've already reported based on the disclosed interviews, so there's no secret to be kept there, either"

    Do I think it's bad form, on general principals? Yes, absolutely. But it's not what it's been made out to be, and will have exactly zero effect on any similar case where the identity of the sources are secret.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 3 Dec 2018 @ 6:10pm

      Re: Close, but not quite

      And if the recordings contained information that the source didn't want public, to the point that they wouldn't have agreed to the interview had they known the resulting recordings would be poured over?

      Or if not this time, what about future instances, where a source will have to be very careful what they say, and/or be explicitly clear when they want something 'off the record', carefully making sure that there are no recordings running?

      reply to this | link to this | view in chronology ]

      • icon
        Aaron Walkhouse (profile), 4 Dec 2018 @ 5:01am

        Two minor points affect this case this time:

        The source went off to join da'esh, and that's proven.
        The guy appears to be dead, though that's not yet proven.

        The reporter, from a far-right propaganda outlet, is simply
        trying to make a martyr of himself against Canada; but it
        remains to be seen if he will go through with contempt or
        just take the publicity he's already generated and pin a
        medal on himself. ‌ ‌ ; ]

        I heard that the Supreme Court was applying a set of safeguards
        that this reporter failed to meet. ‌ Does anybody see that list?

        reply to this | link to this | view in chronology ]

      • icon
        Gorshkov (profile), 4 Dec 2018 @ 6:11pm

        Re: Re: Close, but not quite

        First - nothing of what you said has any bearing on the law surrounding this case.

        Second - you'll note that already said it was bad form and didn't like it.

        Third - my criticism of the case was in it's characterization. There was no forced disclosure of secret sources, because they were ALREADY KNOWN.

        reply to this | link to this | view in chronology ]

        • icon
          Aaron Walkhouse (profile), 5 Dec 2018 @ 6:05am

          "First - nothing of what you said has any bearing on the law surrounding this case."

          The Court mentioned both points I listed in their discussion
          of the safeguards they apparently were thinking about.
          Presumably, if the guy hadn't run off to be a "jihadi"
          and was still alive today, that test of theirs may have
          weighed more favourably to the appeal, so both points
          are, in fact, central to the case as THEY saw it.


          "Second - you'll note that already said it was bad form and didn't like it.

          Third - my criticism of the case was in it's characterization. There was no forced disclosure of secret sources, because they were ALREADY KNOWN."

          I don't care, and neither does the Court. ‌‌ Canada already has
          precedent for press freedom but is also free of the absolute
          constraint that Mike takes for granted. ‌‌ We didn't flush away
          that which we never had in the first place. ‌‌ The judges were
          free to deal with the facts of the case without being forced
          either way, and were still careful to consider the costs.
          It does seem unlikely that this exact situation will arise
          again, so there is little to no threat to press freedoms.

          That reporter was just looking for publicity and now his
          employer has a fat bill to pay for their failed experiment.
          That's no threat to press freedoms either, but one hopes it
          may at least slightly deter courtroom experimentation without
          first getting some good advice. ‌‌ ‌‌ ; ]

          reply to this | link to this | view in chronology ]

    • icon
      Narcissus (profile), 4 Dec 2018 @ 4:32am

      Re: Close, but not quite

      Thanks, I wanted to check if I was understanding that correctly and it seems I did.

      Which begs the question if RCMP was asking for his identity, would the court have decided the same? Is there jurisprudence on that in Canada?

      reply to this | link to this | view in chronology ]


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