Introduction

• Author: Robert Martin
• Profession: Faculty of Law The University of Western Ontario
• Pages: 1-21

The title of this book is designed to indicate both its subject-matter and

its purpose. The focus is on Canadian media law. There is some refer-

ence to cases or approaches from other countries, but the bulk of the

case law and the legislation discussed is Canadian. The book is largely

descriptive, but also contains my own analysis and opinions.

This book is intended primarily for students, both journalism stu-

dents and law students. Some study of the relevant law is a part of

many Canadian journalism programs; however, except for the Media

Law course offered at the University of Western Ontario, the matters

discussed in this book are not addressed in Canadian law faculties. It

would be essential, for journalism students, to complement this book

with a general introduction to the Canadian legal system.

The book should also be useful to working journalists, who might

wish to keep themselves and their employers out of trouble, and to

practising lawyers, who will likely have limited knowledge of these

areas of the law.

“Media law” is a term that requires some explanation. It is not a

term of art, which is simply to say that it does not refer to a recognized,

discrete area of the law such as contracts, torts, or constitutional law.

In fact, media law brings together elements from a number of different

areas — most prominently criminal law, constitutional law, and the law

of torts. What unites these elements is that, taken together, they repre-

sent the law which directly affects the mass media and the people

working in the mass media. It is unfortunate, but necessary, to have to

1

Introduction

stress that the word “media” is the plural of “medium.” Thus, it is not

correct to state, as far too many people in Canada do state, “the media

is.” Another error which should be avoided is that of using “media” as

a synonym for “journalists,” as in “A large number of media arrived at

the scene of the accident.”

I have made certain, possibly arbitrary, decisions about what is to

be included, or not included, under the rubric “media law.” In partic-

ular, I have not discussed questions relating to copyright or, more gen-

erally, to the law of intellectual property. These matters deserve a

separate treatment of their own. I have also not directly addressed the

vexed issues of hate propaganda and obscenity. Some discussion of

judicial decisions relating to pornography is found in chapter 1, below.

Issues relating to hate propaganda are addressed at the end of the book.

These two matters should not be of practical concern to persons work-

ing in the mass media.

Media law should, and does, apply equally to all media of commu-

nication. Most of the material in this book deals with newspapers,

radio, and television — the media where legal issues have arisen. I do

not specifically address issues relating to the use of computers or on-

line computer services, because these areas have not yet been directly

addressed by our legal system. Nonetheless, there is no reason of prin-

ciple or of logic for treating on-line computer services differently from

any other medium of communication.

If the Government of Canada were to decide to treat on-line com-

puter services as broadcasting and bring them under the regulatory

authority of the CRTC, this could be accomplished quite simply.

In 1968 it was decided that cable distribution systems for television

should be regulated as broadcasting. This was accomplished by amend-

ing the definition of broadcasting in the Broadcasting Act to include cable

systems.1The Government of Canada does, to a degree, regulate on-line

computer services. In 2002 the Criminal Code was amended to make it

an offence to view child pornography on a computer.2I can only assume,

for example, that a libel published through the Internet would be dealt

with in much the same way that a libel published in a newspaper is.

The central concept around which this book is organized is free-

dom of expression.3First, however, we need to clarify a number of def-

2Media Law

1 See Broadcasting Act, 1968, S.C. 1967-68, c. 25, s. 3(d).

2 See Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 5(3).

3 For a full exposition of the meaning of freedom of expression, see Robert Mar-

tin, “Promoting Freedom of Expression in the Commonwealth,” (2002) 366 The

Roundtable 521.