Don't remember the name: Upholding publication bans in digital age proves difficult

Canadians were riveted last year by the shocking story of a 15-year-old Nova Scotia girl tormented into a suicide attempt after a photo of another teen having sex with her at a drunken party in 2011 circulated on social media.

Her name became synonymous with cyberbullying. But now thanks to a law some consider increasingly absurd, we’re asked to forget her name, at least in relation to what happened to her.

She later died in hospital when she was taken off life support after a suicide attempt. The boy involved was not charged – there was some question of whether the sex was consensual.

Outrage focused on the fact that photo, which showed her vomiting out the window, was taken and shared. Police did not investigate initially. But this year, perhaps helped by public pressure, two boys were charged with making and distributing child pornography.

One young man, now 20, pleaded guilty in September to taking the photo and sending it to a friend, who later sent it to others.

This week he was handed a non-custodial sentence under the Youth Criminal Justice Act because he was under 18 at the time of the offence. A charge against a second accused man remains unresolved.

Until those charges were laid, the girl was the focal point of a discussion of cyberbullying, along with B.C. teen Amanda Todd who was also hounded to death. Everybody knew who she was, or had been.

But once the charge was laid, an automatic publication ban kicked in covering both the name of the victim and the accused. The name disappeared from reports about the case. Or at least it was supposed to.

At least a few, including the girl’s parents, appeared to defy the ban, which is intended to protect underage victims of sex crimes. The Criminal Code section specifically refers to child pornography victims but the girl’s name has appeared frequently in social media in connection with the case.

But on Friday, Halifax Regional Police announced it would not lay charges in seven complaints related to alleged breaches of the ban on identifying the girl, which could result in contempt of court sanctions. Another complaint about disclosure of the accused’s names was also resolved without charges.

“Investigators considered whether the victim’s name was used in connection with the child pornography charges as well as the overall context in which her name was used,” police said in a news release. “Based on the investigation, which included consultation with the Crown, charges will not be laid in these files.”

Four of the complaints about the girl’s name related to social media and three to local news media, Const. Pierre Bourdages told Yahoo Canada News.

“In the vast majority of these posts, what we’ve seen is that the name is being used without a relation to the case itself, which is not in breach of the publication ban,” Bourdages explained.

Got that? You can write about the girl with the unusual first name. You just can’t refer to the reason why everyone in Canada knows it.

Once chargers were filed, reporters went through contortions not to include that name in stories, even though everyone knew who they were talking about. Ordinary citizens couldn’t either because tweets or Facebook posts constitute publication under the law.

Canadians were asked to exercise selective amnesia, to un-remember.

[ Related: Father of victim in child porn case satisfied with conditional discharge ]

Now let’s go to Winnipeg, where police, with the permission of her parents, released the name of 16-year-old Rinelle Harper, sexually assaulted, beaten and tossed in the Assiniboine River a week ago.

She crawled out but was attacked again and left for dead, laying on the bank for hours until she was discovered. She’s now recovering in hospital and police arrested two suspects Thursday, crediting publication of her name with speeding the investigation.

This time it was police who broke the ban on identifying a suspected sexual assault victim. Who knows if the ban will be reimposed when the case goes to court.

Peter Jacobsen, founding partner of a Toronto firm whose practice includes media law, said the two situations illustrate the need for a radical rethink of a law that has not kept pace with communications technology.

“These two cases show the authorities in both Manitoba and Nova Scotia are prepared to pragmatically correct obvious defects in the law that make it difficult for victims to be identified if they want to be identified,” Jacobsen said.

Jacobsen said the Criminal Code and Youth Criminal Justice Act should be amended to allow a judge to authorize publication of a young victim’s name. Adult sexual assault victims can already petition the court to disclose their identities.

“Right now it’s very patronizing. It’s saying it just can’t happen.

“Our system works much better when there is some discretion, there is some wiggle room to take care of the extraordinary cases like [Nova Scotia] and like the Harper case.”

Jacobsen said the Nova Scotia case illustrates the absurdity of the current law.

The publication ban aimed to remove the young girl’s name from the public domain retroactively even though she was dead and her parents wanted to talk about her.

“They’ve been very vocal about the need to change things that led to their daughter’s death,” said Chris Waddell, director of the Carleton University School of Journalism and Communications in Ottawa. “So it doesn’t seem that releasing the name or mentioning the name could do any damage in that case.”

Her name still comes to mind whenever anyone talks about the child porn case.

“It just makes a farce of the law,” he said. “It creates disrespect for the law.”

[ Related: First Nations leaders call for change in wake of Rinelle Harper attack ]

The growing tension between court-ordered publication bans and modern communication technology was highlighted two decades ago in the landmark Dagenais decision by the Supreme Court of Canada. It concerned a bid by members of a Catholic religious order charged with child abuse to stop the CBC from broadcasting a fictionalized account of abuse at church-run school. They argued showing the mini-series, entitled The Boys of St.Vincent, could prejudice a jury.

The court turned them down in a decision seen as a major advance in freedom of expression. It raised the difficulty of enforcing a ban in an age of cable and satellite TV.

“It has also been reduced by the advent of information exchanges available through computer networks,” Chief Justice Antonio Lamer wrote. “In this global electronic age, meaningfully restricting the flow of information is becoming increasingly difficult. Therefore, the actual effect of bans on jury impartiality is substantially diminishing.”

Veteran Vancouver media lawyer Mike Wagner, a partner with Farris, Vaughan, Wills & Murphy, said that ruling’s prescience has been reinforced in more recent decisions.

A 2008 Ontario Court of Appeal ruling on a publication ban related to two young offenders in the infamous Toronto Boxing Day shooting said: “That concern has only been exacerbated in the almost fifteen years since Dagenais was decided.”

“We can now add to the list of holes through which information can slip the realities of blogs, podcasts, satellite radio, specialty television channels, websites such as “YouTube” and “Facebook”, and the ever increasing number of personal websites. Most, if not all, of these outlets lie outside any effective control by this court.”

The Appeal Court made the same observation three years later in turning down a requested publication ban by two accused murderers on the fact a third accused had pleaded guilty.

Wagner said the problems with bans like the one in Nova Scotia are twofold.

“First of all there’s the question of what I call the genie in the bottle problem,” he said.

News reports and, increasingly, social media often circulate information before charges are laid. Retroactive bans, once issued, are very hard to enforce, which raises the question, why have them if they don’t work well?

“How does it make sense on a principled level to keep it going?” Wagner said. “That’s really a question not for lawyers but for the public and for Parliament ultimately if people think these are ineffective.”

There’s little appetite in the justice system to look at the law, though media organizations that still have the financial resources are challenging bans where they can.

Police and the Crown have always used their discretion when it comes to laying charges. But Wagner said the larger question here is whether this law should exist at all.

“The criminal law is a reflection of policy,” Wagner said. “It’s about more than any one case. That’s the policy-level issue that has to be wrestled with if people think change is warranted.”

As for the Nova Scotia case, Bourdages said Halifax police will continue to investigate any reports they receive of someone violating the ban.

“We’re not combing the internet for these reports,” he said. “We rely on complainants making us aware.”