Interview with Dan Henry, CJFE's 2012 Vox Libera Award recipient

Monday, November 12, 2012
Daniel Henry is the 2012 recipient of CJFE’s Vox Libera Award, given to a Canadian who has demonstrated an outstanding commitment to the principles of free expression and who has had made an important and sustained contribution – at home or abroad – to those same principles. Dan was selected to receive the Vox Libera award for his extensive legal work defending press freedom. He has worked on many of the most significant cases in Canadian media law, and was involved in almost every major legal battle to extend media coverage of the courts. In his decades working with the CBC, Henry helped scores of journalists navigate the legal hurdles involved in bringing difficult and challenging stories to air. Click here to read more about why Dan was chosen for this award. Sharon Tindyebwa, journalism student at Humber College, interviewed Dan to learn more about his work defending free expression.

What does winning CJFE’s Vox Libera Award mean to you?

I feel very honoured to receive the award. I have personally known most of the previous recipients and have always held them in the highest regard, so I am humbled to be placed in their company. I have always tried to make a contribution to the advancement of free expression. It's very gratifying that my efforts have been recognized by an organization I’ve admired for some time, because of the good work that CJFE has done and the principles for which it stands.

What does free expression mean to you?

It means the ability to convey what is on your mind truthfully, candidly and relatively unfettered. It’s an internationally recognized human right, a Canadian constitutional right, and a right on which many other rights rely for their force and effect. It’s a right people have fought and risked their lives for, and a right that’s easy to lose even in a free society, if you’re complacent and not vigilant in protecting it. There are many interests, at all levels and in all segments of society, who from time to time want to control expression by others for one reason or another. Free expression has been at the centre of my law practice, and a personal focus.

Why did you become a media lawyer?

I’ve always been interested in mass communication. I was an actor in radio and television in my youth, and I was a member of ACTRA. I was initially interested in media law to the extent that it involved entertainment, but then took courses at the University of Toronto related to communications regulation, had my own series on U of T’s Radio Varsity, interviewing professors, like Margaret Atwood, and on behalf of the student body helped put together an application for an FM licence for that station. When I joined CBC’s Law Department in 1978, I was exposed to all facets of media law – and became involved in free expression issues and journalism.

Why do you think freedom of the press is important?

Because it is important for individual fulfillment to understand the society in which one lives – and freedom of expression is key to that understanding. Freedom of the press is vital to facilitating our individual free expression. Without accurate information, and candid opinion, it becomes much more difficult for each of us to help our society function and to achieve individual fulfillment.

What was the most difficult case that you took on in your three decades as CBC’s legal counsel?

The most difficult issue has proven to be getting television camera access to courtrooms. It has made it difficult to share what the public is actually entitled to see and hear in public courtrooms. While I’ve had some success in helping to develop a climate where electronic access to the courts is accepted, getting it routinely accepted in the trial court setting has been the biggest challenge. This is where a lot of important issues affecting us are explored and resolved. Certainly the most significant case I was involved in – the one that led to the most significant change in the law of free expression as it relates to the court – was the Dagenais case. That is the case in which the Supreme Court of Canada re-wrote the common law to make it clear that freedom of expression and fair trial rights are equal, each of which has to be accommodated.

Why do you think it has been such a challenge to get electronic devices into the courts?

There are many people to convince before change can happen, and there are many levels of courts. On many occasions there has been support from one level of courts but not another; one group of lawyers but not every necessary judge. It has been a matter of taking advantage of opportunities as they arise. On each occasion where access has been permitted, acceptance and satisfaction has been the almost universal reaction to the outcome. The challenge is overcoming the system’s inertia and getting all of the stakeholders to agree and be in the right place at the right time. At the same time, given the constitutional implications, I have wanted to proceed carefully because it’s important to demonstrate that allowing television access in courts really does add value to society, but a constitutional setback can take a long time to recover from.

Media is constantly changing and evolving. What media law issues should journalists be most concerned with today?

While the media is evolving, the legal issues that surround them evolve at the same time. Challenges that persist include improving public access to court proceedings, as I’ve mentioned; continuing to fight for greater access to government information; ensuring the laws of defamation and copyright continue to facilitate free expression, not inhibit it; and laws of privacy, which are often antithetical to free expression, are limited to what is absolutely necessary.

How did your work change as the CBC began publishing content online?

In some respects, the work was very much the same, because the principles are the same across all media. But the Internet brings a different geographic dimension to publication. It brings different people into the equation, in the sense that everyone can be a publisher online, and many more people have access to the means of publication than did before. It changed the impact and volume of expressive spontaneity; radio and television have always had a live component, but online expression gives everyone the unfiltered ability to be publicly spontaneous, and often less considered. That can have more serious implications, but it can also mean that errors can be more quickly corrected. It’s changed the problems, it’s changed some of the solutions, but certainly within the Canadian context the analysis has not changed a great deal. What will continue to change are the international ramifications of what is published within each jurisdiction. Standards in Canada are different than those in other countries, and in recent years we’ve seen examples involving Google and Yahoo where the difference in standards between jurisdictions has been highlighted. Hopefully that will not unduly inhibit free expression in countries that value it more highly than others.

What advice would you give journalists to empower themselves against legal challenges of their work?

The first thing is to understand your rights and your responsibilities, and know when to get legal advice. That means educating yourself. There are all kinds of resources for journalists about the law available on the Internet. A good Canadian source is adidem.org, the website of the Canadian Media Lawyers Association, but there are others. Second, if you need a lawyer, you want to find one who understands that his or her role is to facilitate your expression, not inhibit it. The law now provides journalists with many tools to do their work effectively and responsibly, in a way that will survive any legal challenge. Third, it helps to work in an environment where journalists can stand up for themselves . Caring about advancing your rights is a journalist’s responsibility. If journalists don’t ask for their rights to be advanced and supported, then the organizations that they work for may not understand the need to do that. Protecting your rights begins with you.

What are some of the things that you are working on now that you have retired from the CBC?

I have an independent media law practice at danieljhenry.com that allows me to work with producers, authors, bloggers, journalists, and a variety of organizations. My focus is on providing contractual assistance, pre-publication advice, and general legal troubleshooting, and I’m developing a website, whatcanisay.net, to provide pre-publication advice to anyone on deadline, much as I did at CBC. I’m still actively involved on the executive of Ad IDEM, the Canadian Media Lawyer’s Association, as a former president, and I’m teaching media law and ethics at Sheridan College, McMaster University, and UTSC (University of Toronto, Scarborough Campus).

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