From time to time one reads of court orders banning people from using social media, usually in anticipation of trial but sometimes as part of a formal disposition.
For example, in R. v. Elliott, the defendant accused of harassment on Twitter was banned from using Twitter pending trial. Ultimately he was acquitted, and the ban was lifted. He had spent three years off Twitter.
A Nova Scotia court banned a teenaged defendant from social media for 21 months after his conviction for assault, uttering threat and criminal harassment. He was ordered to delete his Facebook, Twitter and Instagram accounts for that period as well and submit his passwords to a parole officer.
More recently, a person known as the Canada Creep was banned from using social media pending trial, for posting intrusive pictures on Twitter.
Presumably such orders are intended to be parallel to those offline prohibiting criminals or accused persons from putting themselves in the way of further temptation, or avoiding further risk to the public. For example, an accused pedophile may be banned from hanging around schoolyards. People accused of family violence may be ordered not to contact their spouse.
Question: do such orders go too far, when they target social media use? Here are some considerations in favour of limiting their scope.
- In Peckingham v North Carolina, the United States Supreme Court in its spring 2017 session unanimously set aside a statute providing that registered sex offenders may not access social media sites. The statute placed too much of a restriction on the defendant’s freedom of expression. The Court held that the “vast democratic forums of the Internet,” and social media in particular, were today the primary places for the exchange of views essential to a democracy.Access to this information was as important as the ability to speak. It was not appropriate to “suppress lawful speech as the means to suppress unlawful speech.” A legislature could impose narrowly focused prohibitions, such as banning someone from contacting a minor, or from using a website to gather information on a minor. Broader prohibitions were unconstitutional.
- The United Nations Human Rights Council last year adopted policies on the proper interpretation of the freedom of expression in the major human rights and civil rights conventions to ensure that these freedoms should be protected online as well as off.
[T]he same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights
This policy built on earlier U.N. declarations, which had not been free of controversy.
- A German court a few years ago ruled that access to the Internet is an essential human right – though it may have undercut that statement by comparing it to the loss of use of a car. The case involved damages for failure of a service provider to maintain a connection over the period of some months.
- It is worth noting that both in Germany and in the U.S., knowledgeable observers have concluded from the cases mentioned that provisions banning people from the Internet for copyright infringement – so-called “three strikes” or “graduated response” rules – may not be maintainable. See for example here and here. The whole three-strikes debate is beyond the scope of this note. Slaw.ca has dealt with it previously, notably by David Canton and Simon Chester.
The question here is one of prior restraint of activity or communication. There is no real disagreement that actual action or communication online may have legal consequences, whether they involve defamation or hate speech or fraud.
But is there anything about social media that make mere access to them, and thus the potential for misconduct, so dangerous that people can be cut off from them just in case – despite the widely recognized economic, social and political benefits of access?
If so, what standards should apply to choosing how should be subject to such orders, and to setting their scope and limits? Many of the Canadian orders seem to be very broadly drafted. Probably they should be rethought, based on the considerations from other places mentioned above.
Is our law on publication bans a good place to look for principles? Courts have distinguished between mandatory bans, e.g. concerning identification of young offenders, and discretionary bans, e.g. to protect sensitive parties not mentioned in statutes. Presumably the discretionary bans would be the relevant comparison for social media bans.
Should the rules be the same for those accused of illegal activity as those convicted of it? Should they be the same for allegations or findings of crime as for those relating to civil wrongs? It seems arguable that civil wrongs, alleged or decreed, should not support as broad bans on social media access and use as criminal offences.
Is there room for legislation on such topics, or should the courts and tribunals be encouraged to develop their own law in the light of appropriate Charter standards?
Feel free to engage in policy development in the Comments, and to point out errors or omissions in the foregoing discussion.