DEAN JOBB
The recent phone-hacking
scandal appears certain to
strengthen Britain’s already
robust privacy laws and usher in
some form of official oversight to
curb the excesses of Fleet Street’s
notoriously aggressive journalists.
Reporters and editors were
arrested, a major
newspaper (the vener-
able News of the
World) was folded
and British Prime
Minister David Cam-
eron launched a pub-
lic inquiry into “the culture, the
practices, and the ethics of the
press.” Chris Elliott, readers’ edi-
tor (ombudsman) for The Guard-
ian — the paper that first exposed
how reporters and private investi-
gators had teamed up to illegally
access the voicemail messages of
celebrities, politicians and the
victims of murder and terrorism
— calls the scandal “a tipping
point” that “will prompt a fresh
look at ethical standards.”
The prosecutions and hand-
wringing on the other side of the
Atlantic are bound to raise ques-
tions about the culture, practices
and ethics of the Canadian media.
How would our laws deal with a
Could the aftershocks
from Britain’s
“hackgate” be felt
here, in the form of
stricter privacy laws
or new restrictions on
newsgathering?
“
Part 3 of
MEDIA
LAW
SERIES
journalist who illegally intercepted private communications?
Could the aftershocks from Britain’s “hackgate” be felt here, in the
form of stricter privacy laws or
new restrictions on newsgathering?
In Canada, as in Britain, the
practice of phone hacking is illegal. The Criminal Code prohibits
anyone from recording telephone
conversations, or disclosing
what’s said in cellphone conversations picked up on a police-radio
scanner, without the consent of at
least one of the parties involved in
the exchange. In addition, federal
legislation makes it an offence to
broadcast recordings of such conversations without consent. It is
also a violation of the Code to
hack into a computerized system,
such as a voicemail account, to
access data. Prosecutions under
any of these provisions, it should
be noted, are rare.
While the criminal law is clear,
seeking compensation for invasion of privacy is another matter.
Under the Code, anyone convicted of revealing the contents of
a cellphone conversation can be
ordered to pay the victim of the
intrusion up to $5,000 in damages. It’s in the civil law realm,
however, where things get murky.
Rupert Murdoch’s media
empire paid hundreds of thou-
Dean Jobb,
Journalism professor
right to privacy,” it states.
When the public’s right to
know collides with the right to
privacy, journalists should let
“common sense, humanity and
relevance” be their guide “and
report only information in which
the public has a legitimate inter-
est.”
There’s a reason for the lack of
Canadian jurisprudence on prose-
cutions or civil actions for breach
of privacy. Canadian journalists,
unlike some of their hyper-com-
petitive British counterparts, don’t
have a tradition for riding rough-
shod over privacy rights or break-
ing the law to score scoops. n
Dean Jobb, author of Media Law
for Canadian Journalists (Emond
Montgomery Publications, 2011),
is an associate professor of journalism at the University of King’s
College in Halifax. His website is
www.deanjobb.com
LEGAL BRIEFS
CONTENTS
NEWS
ONE-TWO PUNCH from top court
rocks tribunal ...............................1
LAWYERS AND the vulnerable
very young ................................. 14
TIGHT-FISTED stance sees
knuckles rapped ...........................1
Cross-Border Law
BEWARE U.S. property tax
implications ................................ 15
FEWER MEDIA sins means fewer
cases ...........................................2
CROSS-COUNTRY legal acts
tough to follow........................... 16
DEFENCE NOT bound by informer
privilege........................................ 3
BUSINESS & CAREERS
PRE-TEEN dream job a reality...... 4 NICE GUYS do finish last........... 21
ONTARIO CHILD porn case sent
back for retrial.............................. 5
EVENTS AND values change,
ethics don’t ................................ 23
Mobility, at a cost
Benchers of the Law Society of
Upper Canada have approved a
scheme to permit temporary mobility
for members of the Barreau du
Québec and the Northwest, Yukon
and Nunavut territories only if they
pay an annual fee, which is expected
to be $100. The benchers were told
that members of the Barreau and the
three territorial law societies currently
can provide legal services in Ontario
on up to 10 matters over 20 days in
any 12-month period at no cost and
without having to notify the society of
their presence. However, the other
four law societies require special
authorizations and charge fees to
outside lawyers who wish to practise
in their jurisdictions. Under a bylaw
yet to be drafted, the law society will
also issue permits allowing lawyers
from those jurisdictions to deal with
up to 10 cases in any calendar year
for the fee.
STEMMING TIDE of women
leaving law................................... 8
COUNTER-OFFERS are born out of
selfishness ................................. 24
Adjournments curtailed
THOUSANDS LAG in professional
development .............................. 26
FOCUS
sands of dollars to people whose
phones were hacked, to settle
lawsuits alleging invasion of privacy. In Canada, the legal right to
seek redress in the courts may
hinge on where a phone-hacking
victim lives.
Four jurisdictions — British
Columbia, Manitoba, Saskatchewan and Newfoundland and Labrador — have enacted legislation
to protect personal privacy. The
definition of what could constitute an invasion of privacy is
broad: B.C.’s Privacy Act simply
declares that “it is a tort, actionable without proof of damage, for
a person, wilfully and without a
claim of right, to violate the privacy of another.” Saskatchewan’s
legislation specifically covers
phone hacking, stating that the
“listening to or recording of messages … by means of telecommunications” is a violation of privacy.
While these statutes include
exemptions for legitimate newsgathering activities and the publication of information on matters
of public interest, a journalist
who broke the law to intercept
voicemail or cellphone calls would
have no defence. As well, Quebec’s Civil Code recognizes the
right to sue for injuries caused by
an invasion of privacy and the
province’s Charter of Human
Rights and Freedoms protects the
private lives of citizens.
In the remaining provinces
and territories, a victim of inva-
sion of privacy could face an
uphill battle. Earlier this year, a
judge of the Ontario Superior
Court of Justice reviewed the
scattered references to privacy
rights found in the case law and
ruled the tort of invasion of pri-
vacy does not exist in the prov-
ince, a finding now under appeal
(Jones v. Tsige [2011] OJ No.
1273).
Family Law
FROZEN MOMENT of judicial
compassion .................................. 9
RICHES, MCKENZIE & HERBERT LLP
PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION
UNIFIED FAMILY courts should be
expanded ................................... 10
DEPARTMENTS
BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS
WRONG ARENA to revisit this
struggle ...................................... 11
TIPS FOR financial security upon
divorce ....................................... 12
Announcements. . . . . . . . . . . 22
Careers ................. 21
Classified Ads ............ 19
Lawddities............... 13
Legal Briefs...............2
Names in the News......... 4
Weekly Digest............ 17
PAUL HERBERT, B.SC., PHM., R.PH, LL.B., J.D., PH.D.
DAN HITCHCOCK, B.ENG. (ELEC. ENG.), LL.B.
JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B.
BOBBY ATHWAL, B.A.SC. (MECH. ENG.), M.A.SC., LL.B., J.D.
BYRON THOM, B.A.SC. (ENG. SCI.), LL.B.
BRAN T LATHAM, B.A.SC. B.SC. (CHEM. ENG.), LL.B.
GARY M. TRAVIS, B.SC. (GEOL.), LL.B.
MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B.
MICHAEL YUN, B.SC. (BIOCHEM), J.D.
TRADE MARK AGENT MARTA TANDORI CHENG
MOVE TO more clarity in custody
law ............................................. 13
2 BLOOR ST. EAST, SUITE 1800
TORONTO, ONTARIO M4W 3J5
ESTABLISHED 1887
TELEPHONE: (416) 961-5000
FAX: (416) 961-5081
E-MAIL: riches@patents-toronto.com
At their October convocation,
benchers of the Law Society of Upper
Canada unanimously approved a new
practice direction designed to curb
adjournments of tribunal hearings.
Under the direction, requests for
adjournments must be made well in
advance of scheduled hearings.
Headed “Strict Adjournment Policy,”
the new direction stipulates in part:
“Adjournments will not ordinarily be
granted due to late retention of
counsel and/or the unavailability of
such counsel for the scheduled
hearing dates or on the grounds that
parties wish to engage in settlement
discussions. Settlement discussions
are encouraged, but should be part of
the pre-hearing preparation process.”
