Publication Bans in the Era of Online Information

The website of the Ministry of the Attorney General for Ontario includes an interesting discussion of publication bans in Ontario, but really misses the point when it comes to the distribution of court judgments and publication bans in the era of online distribution and access to legal information.

Publication bans are described on the website as “an exception to the constitutional right of the media to publish information about court cases”. The website goes on to say that publication bans may be necessary in certain cases “to protect the fairness and integrity of the case, the privacy or safety of a victim or witness, or the identity of a child or youth”. In addition to the presiding judge’s discretion to control court proceedings to ensure a fair trial, provisions in various federal and provincial laws “permit or require publication bans”. Finally, it states that under the common law, a judge also has “the authority to order a publication ban where various principles, including the effects on the accused’s right to a fair trial, on the right to freedom of expression and on the administration of justice, are weighed”. It goes on to warn that “there are serious consequences for breaching publication bans”.

What is really happening at the “nuts and bolts” level?

Missing entirely from the discussion on the website is any indication that anyone in the Ministry really understands publication bans at the “nuts and bolts” level where courts and the Ministry of the Attorney General physically distribute judgments to legal publishers for the purpose of making them available online. In Ontario, the process of distributing judgments is a fairly simple one. The process begins with the judge who has his secretary forward an electronic copy of the judgment to one of the three central distribution points, one for the Court of Appeal, another for the Superior Court, and the third for the Court of Justice. Administrative staff at these central distribution points then gather a number of decisions together and forward them by e-mail to legal and newspaper publishers. Upon receipt, the legal publishers code the judgments and mount them online, generally within twenty-four hours. Subsequently, judgments may be selected for publication in a print law report.

In general, a discretionary publication ban is sought and obtained after the judgment has been issued by the judge and sometimes after the judgment has been forwarded to central distribution. The issuing of a publication ban is a separate step with a life of its own. By the time the ban is issued, the judgment is likely already online. It is a fact that there have been instances when the record of the ban has not been forwarded to the publishers. In at least one recent instance, months passed before the existence of a ban was drawn to the publishers’ attention. Judgments have also been forwarded to legal publishers that are the subject of legislated publication bans. The publisher may or may not catch the mistake. In some instances, such judgments have been published with initials substituting for the names of the parties.

Who really “publishes” a judgment?

The general assumption is that a judgment is first published when it appears in a law report or a newspaper and more recently when it is mounted online. Is that really the case in the online era? I would suggest that the Ministry of the Attorney General is the publisher of first instance when it distributes the judgments on an unrestricted basis to the major legal publishers for the express purpose of making the judgments available to the legal profession online. At the “nuts and bolts” level, it is the Ministry that needs to have in place checks and balances to ensure that publication bans are adhered to, either by pre-screening judgments or by having a system in place to recall judgments that have been distributed in error.

Is there really a problem with publication bans?

No one really knows the extent of the problem. The issues surrounding publication bans in Ontario would undoubtedly have a higher profile if everyone involved in the process did not have a vested interest in keeping things quiet. Certainly the lawyer acting for a victim does not want to make matters worse by making an issue of the breach of a publication ban. It would simply generate more publicity. The same is true for legal publishers who gain access to judgments by the grace and favour of the Crown. Suffice it to say, breaches of publication bans happen and are likely to happen again.

What should be done?

At some level, it is recognized that the implementation of publication bans is an issue. Reference on the Attorney General’s web site is made to a Panel on Justice and the Media which made recommendations to improve operations and understanding between the justice system and the media. One of the recommendations referred to publication bans: “that the Ministry of the Attorney General and the judiciary establish an electronic notification system for discretionary publication bans to provide basic information in a timely manner.” The web site goes on to say that “Ministry staff are reviewing the recommendation and will be consulting with the Chief Justices, court users and other jurisdictions to determine the best way to proceed with this recommendation.”

Personally, I don’t think that this is enough. An electronic notification system for discretionary bans does not address the issue of the distribution of judgments in breach of publication bans by the Ministry itself. More is required if publication bans are to be effective. Both the judiciary and the Ministry should examine the whole process whereby judgments are distributed to the public to ensure that the judiciary and the Ministry have taken the necessary steps to make publications bans effective and not pass the buck to the publishers.

Any “publication ban” that does not actually prevent a judgment from going public is not really a publication ban at all.