Freedom of the press as a discrete constitutional guarantee.

• Author: Oliphant, Benjamin
• Position: II. An Independent Freedom of the Press Framework A. Proposed Framework for Freedom of the Press 3. Activity or Information in the Public Interest through Conclusion, with footnotes, p. 310-336

3. Activity or Information in the Public Interest

   The final definitional limit--that the protected activity must be in the public interest in the sense of serving the purpose underlying press freedom--further guarantees a link with the principles underlying section 2(b) and the objectives to which freedom of the press is directed. This purposive limit may serve to exclude from constitutionally protected status gratuitous press activity entirely divorced from the values underlying freedom of the press under section 2(b). As Justice McLachlin (as she then was) noted in Lessard, "it is not every state restriction on the press which infringes s. 2(6). Press activities which are not related to the values fundamental to freedom of the press may not merit Charter protection." (117) Where claimants engage in activity unmoored from the rationale behind press freedom, I argue that there is no justification for section 2(b) protection, and no section 1 balancing is required.

   With respect to this final hurdle, a useful analogy can be drawn to cases where the effect (as opposed to the purpose) of state action constitutes a limit on freedom of expression. These cases require the claimant to demonstrate that the conduct in question is linked to an underlying value of 2(b)--seeking and attaining truth, participation in social and political decision-making, or individual self-fulfillment and human flourishing (118)-- in order to acquire protection. (119) If considered necessary, a claim of press freedom could be put through a similar test before protection is extended: does the activity for which protection is claimed serve the objective of press freedom by facilitating social and democratic discourse and by generally ensuring the public's right to know?

   A public interest criterion so stated is necessarily vague: it asks whether the genre of conduct tends to serve no public interest, in the sense of ensuring the public's right to know. The ambit of this exception would be narrow--reporters cannot always be held to the highest standards of gentility--but it would tend to exclude particularly offensive and unproductive conduct. For example, the practice of voyeurism (120) might lose protection at this stage on the basis that little demonstrable public interest is served in clandestinely observing, photographing, or distributing images of, for example, a politician inside his or her home. This stage of the analysis also allows practices such as "[c]hequebook journalism", which seemed to trouble the Supreme Court in National Post, to be assessed for their compatibility with the purpose underlying press freedom. (121) While it is not clear to me that such conduct should be considered incompatible with the purposes of press freedom--chequebook journalism appears to as readily serve the public's right to know as does traditional investigative reporting--to the extent that a compelling argument can be made that it is contrary to or incompatible with the purpose of the press guarantee, it fails to receive protection at this stage. Such a public interest requirement serves as an exceptional safety valve to allow courts latitude to protect activity deemed sufficiently integral to the values and purpose underlying press freedom to warrant constitutional protection, without shielding all activity press-like entities might choose to undertake. (122)

   There is another conception of public interest appearing in the case law which focuses directly on the content of the information being gathered for dissemination, (123) which is subtly different from focusing (as proposed above) on the social value of the newsgathering activity. Such a public interest limit assesses whether the type of information being collected is the kind that is in the public interest to disclose. While this article does not endorse such a definitional limit relating to the content of information being gathered, there are some benefits and downsides to this different conception of the public interest that deserve attention.

   While such a public interest test is also imprecise and may frequently be subject to controversy, it is not unknown to Canadian law. Indeed, the Supreme Court has already applied this kind of public interest criterion in the area of press expression in order to defeat certain actions in defamation. (124) The newly created "responsible communication in the public interest" defence to defamation, as the name indicates, requires a claimant to demonstrate that the communication in question was in the public inter- est in order to be relieved of liability. The Supreme Court described this criterion in Grant v. Torstar:

   First, and most fundamentally, the public interest is not synonymous with what interests the public. The public's appetite for information on a given subject--say, the private lives of well-known people--is not on its own sufficient to render an essentially private matter public for the purposes of defamation law. An individual's reasonable expectation of privacy must be respected in this determination. Conversely, the fact that much of the public would be less than riveted by a given subject matter does not remove the subject from the public interest. It is enough that some segment of the community would have a genuine interest in receiving information on the subject. (125) The Court endorsed a generous definition of public interest, (126) recognizing that "[t]he public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion and morality." (127) As such, the matter "must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached." (128) This conception of public interest, focusing on the content to be disseminated as opposed to the newsgathering process, may be considered necessary to defeat claims in which publication appears to be a pretext for depraved purposes unrelated to the public's right to know but where the conduct is not screened out at the first two stages. For instance, the public interest criterion may deny protection to an individual who creates a website for the purpose of collecting and publishing extremely private details and lewd photos of an ex-lover while seeking refuge from tortious or other liability under the auspices of press freedom.

   It might be objected at this stage that these two conceptions--one focusing on the link between the type of activity in question and the furtherance of the purposes underlying press freedom, the other on the content of the information being collected for dissemination and the public's interest in knowing that information--are not significantly different in practice. Indeed, some might suggest that the reason why, for instance, voyeurism could be deemed inimical to the purpose underlying the press guarantee is because the content of voyeurism--gratuitous nudity without the subject's consent--is not in any way socially valuable. Whatever the merits of this distinction, it is clear that the further a court shifts away from the activity itself and toward determining the social importance of the content of a publication, the greater the risk of content discrimination, (129) which has generally been eschewed in the context of section 2(b). The concern in the context of press freedom is that courts might provide less protection to information that is relevant to a few than to interests considered to possess more mainstream value.

   I believe that such a risk is attenuated where courts focus on the activity in question and its link (or lack thereof) to the purpose of press freedom, but I acknowledge that there may be situations in which the latter definition of public interest has value. If this content-based public interest requirement is necessary to further circumscribe the reach of press freedom, however, I would recommend that adjudicators be reluctant to reject protection simply on the basis that the average citizen may not be interested in the content, that the information is relevant to a small constituency, or that its disclosure is not of critical importance to the functioning of society.

4. Qualifications

   I concede that the final stage of this framework--whichever type of public interest standard applies--injects a normative element into the analysis at the stage of establishing section 2(b) protection. It seeks to determine whether or not either the activity in question or the information collected is socially valuable in some sense, which may not be consistent with the general practice of leaving consideration of the social importance of activity to the contextual section 1 stage of the Charter analysis. The general principle of content neutrality under section 2(b) is an important achievement and should not be lightly discarded, and the further courts are asked to determine the importance of the content of newsgathering, the more this principle is at risk. As such, there may be a considerable degree of analytical value in leaving such substantive judgments to the section 1 stage of the analysis, which typically requires the state to demonstrate some harm to the public instead of requiring the claimant to establish a benefit.

   On the other hand, whatever framework is erected to establish an initial breach of press freedom under 2(b), the section 1 analysis requires balancing the public interest against the exercise of the Charter right or freedom in question. (130) While the public interest criterion, particularly of the content-based variety, might be applied in such a way as to create a "ghetto" of low-value information that may be deemed unworthy of Charter protection, this has been no less the case in the application of section 1 to low-value expression. (131) The advantage of the approach recommended here is that courts will need to be attentive to the...