Today, the Supreme Court of Canada will hear a landmark case about the Canadian police’s attempt to obtain confidential conversations from Vice News, a major news outlet. ARTICLE 19, along with 11 other international press freedom, media rights and civil liberties organisations, intervened in the case in support of VICE News, arguing that the actions of the Canadian police violated the protection of sources and journalistic material.
The case concerns Ben Makuch – a national security reporter for VICE News Canada, who published a series of articles on VICE News website which covered conversations he had with a Canadian-born, alleged Islamic State fighter, Farah Shirdon. In one of these conversations, Shirdon referred to himself as an IS recruiter and made reference to future US terrorist attacks.
Shortly after the material was published, the Canadian police made an order to obtain access to all conversations had between Makuch and Shirdon. The Canadian police claimed that they required access to these communications as this material was vital to their ongoing criminal investigation against Shirdon, who had been charged with multiple terrorism offences. Makuch has since been embroiled in a three-year legal fight against the order, which has been upheld in two lower court decisions.
ARTICLE 19 and the other intervening parties (the International Coalition), submit that a stricter test is needed for assessing whether law enforcement is justified in demanding access to confidential and journalistic material. A stricter test, based on tests applied in various states in the US; the UK and by the European Court of Human Rights, would ensure that the interests of the State are more appropriately balanced with the public interest in freedom of expression and privacy.
The International Coalition argue that it is only permissible for law enforcement to obtain confidential and journalistic material where:
- they have reasonable grounds to believe the information is of important value to their investigation;
- the material is relevant and central to the prosecution;
- there is no other way the information can be sourced; and
- the public interest in the investigation outweighs the reasonable expectation of privacy and freedom of the press as held by journalists.
It is well-recognised in international human rights law that State measures to obtain information from the press is a serious interference with their important public watchdog role. If the State can easily gain access to journalistic material, there is a disincentive for individuals to share important information as there is no guarantee their confidentiality is protected. In turn, this may inhibit the ability for news outlets, like VICE News, to source this information from individuals for their investigations. Accordingly, balancing exercises between State interest and public interest in freedom of expression must consider the chilling effect orders for information have on the retrieving and distribution of information.
We call on the Supreme Court of Canada to overturn the previous decisions and take a strong stand for the protection of sources and freedom of the press.
The coalition comprises ARTICLE 19, the Committee to Protect Journalists, Index on Censorship, the International Human Rights Program/University of Toronto Faculty of Law, the International Press Institute, Media Law Resource Center, Media Legal Defense Initiative, PEN Canada, PEN International, Reporters Committee for Freedom of the Press, Reporters Without Borders, and World Association of Newspapers and News Publishers.