A Few Basic Suggestions on How to Deal with Media Representatives Regarding your Court Case.
Most reporters and journalists are highly ethical and truly professional. Media frenzy often gathers around potentially scandalous and scornful events, highly publicized disputes that end up in court, serious allegations of child abuse or criminal charges involving influential persons. Let us face it. Television stations, newspapers and magazines specifically hire reporters and bureau chiefs to write and report stories that are expected to be of interest to the public. Chances are the more powerful you are, the higher the possibility of your becoming either a media celebrity or media pariah. But even if you are relatively unknown, it takes a few steps to the local courthouse to see your name in the local and sometimes national newspapers.
Be courteous and friendly with reporters but proceed with care when talking to them about your court case. If you are in the middle of an overly sensitive and controversial case, the wisest and safest way is to say a polite but firm "No", or "No comment" to anyone who wishes to interview you, unless the reporter assures you that the interview will be used as background only to assist his or her understanding of the factual and legal basis of your case.
You should be careful not to disclose information that may be used by your opponent to make a stronger case against you. Also be careful not to give the impression that you are intentionally seeking notoriety to advance your cause on the backs of the media "forces". Even if you ask the reporter to conceal the source of the information, many readers, including your opponents and their lawyers will have little doubt figuring out who the source is.
If you wish your remarks to remain "off the record", make sure you express your wishes before the interview begins, and go as far as obtaining written assurances from the editor or bureau chief to protect the sensitive nature of your discussions.
If your comments are printed, you may discover that despite the best efforts of the reporter to be accurate, the story may contain inaccurate information. Ensure that the paper will publish a correction. To avoid this, insist that the interview is recorded.
If you inadvertently reveal material evidence that finds its way in the media for the first time, your identity may eventually be revealed with possible negative consequences for you and others.
In many situations, it is best to let your lawyer speak to the media on your behalf to ensure that you are fully protected. Your lawyer will also explain the meaning of some highly technical terms and the legal framework of your case.
Lawyers in North America, have a moral, civic, and professional duty to speak out and publish their comments where they honestly believe they serve a social purpose by providing information on a topic that is of interest to the public at large. Lawyers should also feel free to speak out where they see an injustice. By virtue of their education, training and experience, lawyers are particularly well-equipped to provide information and stimulate reasoned discussion and debate on important legal issues. Your best interests, especially your freedom of expression, may be legitimately served by allowing your lawyer to initiate conduct with the media. For example, the courts in Canada have ruled that the public has a constitutional right to receive information with respect to legal issues and matters pending in the courts and in relating to the legal profession and its practices. This freedom may have its limits: your lawyer cannot engage in a calculated campaign to discredit or defame your opponent, his or her lawyers or the court. The same caveat applies if you are self-represented. When talking to the media treat everyone with respect, integrity, and courtesy.
In Ontario, the Child, Youth and Family Services Act (the Act) specifically provides for hearings and orders. Under Part V (Child Protection), a hearing shall be held separately from hearings in criminal proceedings. Also, a hearing shall be held in the absence of the public, subject to certain qualifications for media representation, unless the court orders that the hearing be held in public after considering,
(a) the wishes and interests of the parties; and
(b) whether the presence of the public would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
Media representatives chosen in accordance with that Part may be present at a hearing that is held in the absence of the public, unless the court makes an order excluding them under subsection (7) of section 87 of the Act.
Subsection 6 of the Act provides that the media representatives who may be present at a hearing that is held in the absence of the public shall be chosen as follows:
1. The media representatives in attendance shall choose not more than two persons from among themselves.
2. Where the media representatives in attendance are unable to agree on a choice of persons, the court may choose not more than two media representatives who may be present at the hearing.
3. The court may permit additional media representatives to be present at the hearing.
Under subsection 7 of the Act, the Court may make an order excluding media representatives or prohibiting publication: Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(a) excluding a particular media representative from all or part of a hearing;
(b) excluding all media representatives from all or a part of a hearing; or
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
Subsection 8 of Section 87 of the Act provides for a prohibition identifying a child: No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
Under subsection (9) of the same section, the court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under Part V of the Act.
And with respect to transcripts, no person except a party or a party’s lawyer shall be given a copy of a transcript of the hearing, unless the court orders otherwise (subsection 10).
Under section 142 of the Act (Other Offences), with respect to publication, a person who contravenes subsection 87 (8) (publication of identifying information) or an order prohibiting publication made under clause 87 (7) (c) or subsection 87 (9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
If you are a disgruntled parent in a child protection proceeding, you should never threaten to “go to the media” with your complain, for this may result in violating any of the above-noted provisions of the Child, Youth and Family Services Act.
The legal issues surrounding publication bans can be complicated. Reporters covering legal proceedings should familiarize themselves with the subject and the governing law relating to publication bans. In some cases, it may be necessary to consult with editors and obtain legal advice depending on the circumstances of the case. There are serious consequences for breaching publication bans.
On this topic see also Bans on Publication, published by the Ontario Ministry of the Attorney General.
Copyright © Andreas Solomos, Barrister & Solicitor. All rights reserved. This article is not deemed to be legal advice. The reader should consult with his or her own lawyer on any issues regarding the topics discussed in this article.