Free Expression and the Law

There are many areas where the law can intersect with or challenge free expression. These include:

Defamation and libel

Defamation and libel laws protect citizens against the spreading of false information, either written or spoken, which might damage one’s reputation or dignity.

Free expression advocates in this area have two major goals. First, that defamation and libel laws should be civil rather than criminal – Canada, for instance, still has criminal libel laws that could lead to jail sentences. And, second, that damage to reputations must be weighed against the consequences of limiting the Charter right to free speech. In 2009, the Supreme Court of Canada created the defence of responsible communication on matters of public interest, which provides journalists with qualified immunity if they act professionally even if they report incorrect information that might otherwise be considered defamatory or libelous.

Freedom of Assembly

Freedom of assembly is the individual right or ability to come together and collectively express, promote, pursue, and defend their ideas. This is recognized as a human right, political right and civil liberty.

Hate Speech

When to protect freedom of speech and when to protect others from hateful speech is the subject of much debate. However, putting limits on what can be said for fear of offending others, when the impugned statements do not incite hatred that is likely to lead to a breach of the peace, runs the risk of creating a repressive environment for free expression. CJFE believes that the best response to offensive speech is not less speech but more speech.

Media Access to the Courts

Media access is crucial to the “Open Court” principle, where citizens’ knowledge of what occurs in our courtrooms ensures that the judicial system is fair, just and accountable. Media access to the courts often requires a balance between a free information flow and individual privacy rights (for example, for youth), as well as an accused’s right to a fair trial.

In Canada, media access to the courts is mandated by law, and exceptions must be justified on a case-by-case basis. Media access encompasses issues such as publication bans, the recording of court proceedings with audio devices and the use of new media such as Twitter.

Search and Seizure

From time to time, police forces attempt to compel journalists to turn over their materials – notes, photographs, recordings. In addition to depriving journalists of access to their work, this practice can put journalists at risk or make their job more difficult in future if they are seen as an arm of the police.

In Canada, examples of search and seizure have included taking cameras and recording devices from the hands of journalists reporting on a crime scene and the use of search warrants and subpoenas to gain access to a reporter’s work.