A Northern Ireland court has barred a Belfast newspaper, Sunday Life, from publishing unpixelated photos of the perpetrator of a sex related murder who is now being released after serving out his sentence. It had been the paper’s intent to publish pictures to enable the public to identify the man should he end up in their community. At issue is the conflict between the desire of the public to know the criminal history of their neighbours and the impact of such privacy violations on an individual’s ability to reform and reintegrate with society. Many Canadians can best relate to this debate in the context of the high profile release of Karla Homolka and the ensuing media attention over her whereabouts and actions.
In this case, the Judge considered two legal principals as the basis for the injunction, misuse of private information and harassment. Under the head of misuse of private information it was uncontested that the individual had an expectation of privacy. However, the Judge must balance this privacy interest against the public interest of disclosure. The evidence put forward showed that this public exposure tends to “…increase the risks to the public by undermining the home, employment and support networks of offenders who are being rehabilitated” and concluded that “[i]f public humiliation and identification of his precise whereabouts increases risks to the public then that is a course which is counter productive irrespective of the fact that the plaintiff does not deserve any sympathy.”
The tone and content of the paper’s prior reporting on the convict was also significant in the decision. The Judge found that it was “calculated to and did engender considerable public hostility and animosity towards” the man, and had been without balance.
The debate over whether and to what degree convicted offenders, particularly sexual offenders, should be monitored after release remains strong. Many States in the U.S. have strict ‘Megan’s Laws‘ that enable the publication and tracking by the public of offenders’ whereabouts. Other jurisdictions have taken a much less public approach with reported information remaining restricted to law enforcement officials.
While publication over the Internet did not play a role in this case, it plays a significant role in disseminating this information in the U.S. where laws promote public disclosure. The Internet’s reach and accessibility enhance both the positive and negative effects of publication and can therefore make reaching a balance more difficult.
Canadian courts, in the separate context of publishing photo evidence from a trial, have had to consider the balance between the privacy interest in the photos and the needs of new reporting. This balancing has resulted in publication being allowed as well as denied.
3 Responses
“The Internet’s reach and accessibility enhance both the positive and negative effects of publication and can therefore make reaching a balance more difficult”
Although a good observation, I am not sure if it is “the internet that would make reaching a balance more difficult” for the internet comes into play after the fact; after the information is already made available.
The balancing analysis happens first, this is where the court must decide whether or not disclosure should be made and what should be disclosed. We are able to see this in R.v. Fowler (2006) BCSC when the court says it “must determine whether access can be accomplished in a manner that balances any competing Charter rights, including the right of an accused person.”
There is a lot of merit in the argument that “the internet’s reach and accessibility enhance both the positive and negative effects of publication.” It seems that since the decision to disclose has already been made, what the internet does is shed heavy light on whether this decision was in fact correct. In addition, I might add it amplifies the ‘correctness’ of this choice immensely. Although, the internet alone cannot be said to do this. In fact, this situation occurs with media in general, the only difference being, the internet is the most powerful.
I’m going to have to disagree with you here. If the Judge is balancing the impact of a privacy violation with the benefits to society of a disclosure he should surely take into account how severe the privacy impact will be and how much it will benefit the public. The Internet has an impact on the magnitude of both of these and so such a decision cannot be made in a vacuum.
In the case at hand, the Judge closely considered how the photo was likely to be used upon publication by looking at the paper’s past coverage.
In R v. Fowler, at para 13 (alluding back to para 4), the judge considers the impact of reporting in the Kelowna Capital News (which was making the request) would have on the plaintiff’s family as his sister lives in Kelowna.
I agree with your points, however I think that a distinction should still be made between cause and effect. In deciding whether to disclose, it seems there is some overriding interest (or combined interest) that tips the scales in favour of it or against it. This interest (or combined interest) is the cause. The internet on the other hand, can be seen as an effect. Even though, a judge may consider the “impact of reporting” in the balancing process, my point is that it always by implication (as it is an effect), occurs after the cause being the case to disclose or not.
However, you make a very good point in that such “decisions cannot be made in a vacuum”. This sheds light into the problem. For example, how many factors should we consider in the balancing process (the internet being just one factor of many) and where do we draw the line?
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