Media Law 2501 Lecture Notes PDF

WEEK 1 Media law: the suite of rules and regulations associated with norms and practices, that focuses on enabling and constraining how people can communicate within a particular jurisdiction. Proceting and limiting our right to communicate Shaping how we can and cannot u...

WEEK 1 Media law: the suite of rules and regulations associated with norms and practices, that focuses on enabling and constraining how people can communicate within a particular jurisdiction. Proceting and limiting our right to communicate Shaping how we can and cannot use media Regulating people who make media WEEK 2 THESE TERMS WILL BE ON THE TESTS Government: make law, and are bound by law. a specific set of elected people that govern a nation state or community state : is a broad and abstract political notion. Signifies the political entity from which the government derives its authority. Refers to the unit of politics recognized at the national level. The state signifies the unit of politics recognized at the international level. The state refers to the abstract notion of the country or nation as a sovereign political power. Law: law is any system of regulations to govern the conduct of the people of a community, society or nation in response to the need for regularity, consistency and justice. Constitution: is the fundamental law of a nation or state. The highest set of rules. Can be written or unwritten. The constitution establishes the character and conception of government. It's a reference to how the government is supposed to look. The constitution lays out the basic principles to which its internal life is to be conformed. (the rules on how the constitution works are in the constitution) thirdly the constitution is a document that organises the government and regulates distributes the different responsibilities amongst the departments ex: federal, provincial, etc. Lastly, the constitution prescribes the extent and the manner of the exercise of sovereign power. Canada constitution sets out 3 branches of government The executive: the head of state, his power is operated by constitutional convention. We largely skip by the king and go to the ministers in the house of commons. The prime minister and the cabinet ministers are usually the executive branch. Legislative: parliament is the legislative branch of the federal government. Represented by the governor general. The senate and the house of commons are the key parts for canada. Judicial: the judges of the country and the courts. The role of the judges to interpret and apply the laws of the constitution Bijural system Common law system: originates in england. Common law system has laws that are generated by the government and are compiled into statutes. A second source of law in the common law system is judge-made law. Because judges interpret law, they write decisions. Whatever is written in a judgement, it is law on its own. Those decisions have the precedent Precedent: something that is followed in the future and serves as an example or rule  Persuasive precedent: previous decision on the same point of law that is relevant. It is not binding but is something that they can decide to do. Stare decisis: standing by former decisions. The following of the precedent of decisions that are bound to you. Distinguish: to be able to recognize Civil law system: all laws have to be written down and are compiled into statute. They tend to be broader. They need to be flexible and able to adapt. Jurisprudence constant: the idea that we are trying to be consistent Code civil du quebec: the civil code of quebec and where all the quebec laws are written down Public law: Deals with the relationships between individuals in the state. Ex: when criminal cases are called “R v X”. the r is in reference to the state, and the x is the person Private law: individual or organziations against other individuals or organizations. Ex: jones v smith, epic games v apple Court structure in canada: The supreme court has 9 judges sit in most big decisions The federal court is where intellectual property matters go. The provincial court system works the same except for nunavut. A lot of everyday disputes happen at the federal administrative level. A fair bit of media law happens at the administrative law level.  Judicial independence: that judges are independent from other branches of the government. Judges are to be appointed through the proper system and should not be influenced by other branches of the government If judges dont have security of tenure (guaranteed job) then there is a danger that they will tailor their rulings so they don't get fired. If judges dont have financial security, then they may be attempted to accept bribes and favours If judges dont have a measure of institutional independence, then the government can control which judges will hear which cases All of judges ' decisions can be reviewed, overturned, etc. their decisions are not casted in stone. How does a bill become a law video government of canada https://www.youtube.com/watch?v=4O8syj77goQ&t=150s Bill: draft proposal for a law Our constitutional bill of rights only dates back to 1982. The fed government negotiated to say that the constitution would be the supreme law of the land. Constitutional supremacy: the idea that the constitution trumps all other systems Judicial review: when a court reviews a decision made by a body Intra vires: something someone is allowed to do Ultra vires: something that someone is not allowed to do Charter: an official document granting, guaranteeing, or showing the limits of the rights and duties of the group to which it is given. People who don't like judicial review say that it can become judicial activism and that the judges have gone too far and are essentially creating law. They argue that it is fundamentally undemocratic. That is supports minoritarian rights rather than authoritarian rights and politics Supporters argue that in a constitutional democracy, this is what we signed up for. They also say that judges are less likely to be subject to political lobbying since they  aren't allowed to. They suggest that if the courts don't protect minority interests, who will? They suggest that governments think short term since they are in power for 3-4 years. The idea being that judges can take the long view since they have their positions for a long time. If the judges are independent, they are just trying to be just and consistent. Kent roch: The Charter strikes a compromise “avoiding the dangers of both judicial supremacy, which gives unelected judges the last word, and legislative supremacy, which gives elected politicians the last word.” The oaks test: the court asks and answers a series of questions which is the oaks test. 1. Is the goal of this legislation a pressing and substantial legal problem? 2. Is the legislation proportionate to the given problem you are trying to solve? Does the legislation have a rational connection? What is the minimal impairment? And finally final balancing. Judges weigh the pros and cons and come up with the answer if it's constitutional or not. Another way limits can be put on the charter is section 33. Notwithstanding clause Definition: 33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. simply : In simple terms, it gives governments the power to make laws that temporarily bypass certain rights guaranteed by the Charter, like freedom of expression or equality rights, but it cannot be used for every right, like the right to vote or the right to life. After five years, the law must be renewed or it expires. We have seen a lot of provincial governments try to use the notwithstanding clause. Ex: Quebec's bill 21 which forbade public service employees to wear any religious symbols. It was supposed to be about secularism. But christian symbols were not treated the same as other symbols. That law violates freedom of expression and religion and was widely criticised. The notwithstanding clause had to be used for this. Quebec has also tried to use the notwithstanding clause for a lot of the language issues. Quebec has used the notwithstanding clause the most out of all the provinces. ADVICE ON HOW TO READ LEGAL DOCUMENTS These documents mostly talk about the laws not facts These are persuasive documents They rely on precedent. When they talk about precedent skip over that we don't care since we aren't lawyers These decisions are trying to be comprehensive. They give us the background on everything. Everything we need to interpret the decision is in there. Skip the parts that aren't relative to us. They are written for the public and are calm documents not rage induced Make sure to look at and understand the facts of the case If u dont wanna analyse the whole thing, you can read the headnote. The headnote is often enough to understand the whole thing.  Look at the sections. U dont have to read these documents cover to cover Look for the places where the judge says “I think, I argue, etc. these are the judges telling you what the deal is. When you are quoting a case, make sure that what you are quoting is that judge actually saying what they are saying, not that judge quoting something else. If u mess up on the note before, refer to the headnote to try and see if u messed up. WEEK 3 How we protect and regulate our expressive practices is a collective expression of the kind of society we want to live in Free expression is “not an independent value but a political prize” (fish) Freedom of expression is considered a fundamental thing in western society in democracy. Free thought and free speech r necessary for democracy Freedom is probably the most important thing in a democracy Regulation of free speech is a defining feature of everyday life (fish) Fish thinks we shouldn't think of free speech as pure. It's never in a pure state. No one wants certain forms of expression happening. If we start from a peaceful community with regulated forms of speech people will argue it. But then the conversation is about the terms of that regulation. Many forms of regulation are what allows us to live together and have a functioning world. Free speech is best considered a notion that is used to focus our attention to certain types of human interaction It invites us to collectively decide what values we want to put on certain forms of expression and limiting certain forms Js mill Any opinion can be true because ideas change A lot of ideas have some truth and some falses in them Sometimes we aren't capable of recognizing the truth The needing of ideas can not shape us into being better people unless its subject to the rigour of better reason (you take ideas and expose them to reason and senate and evaluate them against your beliefs) Free speech absolutism: any limitation at all on free speech is unjustifiable in a free and democratic society. Canada's approach to rights is NOT absolutist because section 1 says there is going to be limits Protecting freedom of expression: Marketplaces of ideas produce the truth Democracy and its social institutions ex: courthouses Self fulfilment is of the individual Communication is part of the process of how we make a society How do we actually protect it? At the very start of canada we had an implied bill of rights inherited from britain In 1960, the fed government wrote down the canadian bill of rights.  In 1982, the fed, prov, etc governments brought in the canadian charter of rights and freedoms. It applies to everyone within the canadian border The charter protects us from the governments. In Canada, Expression is anything that expresses or attempts to express meaning Violence or the threat of violence is not protected under the freedom of expression All forms of speech are protected ex: commercial speech, religious speech, political speech, etc. Freedom of speech vs freedom of expression They're relatively similar but there are differences. Ex: our hate speech provisions Defining regulation: regulation is the whole process of control or guidance by established rules and procedures applied by governments and other political and administrative authorities to all kinds of (communicative) activities. Justifications: The harm principle: the only purpose for which power can be rightfully exercised over any other member of a civilised community against his will, is to present harm to others. (Mill) Ex: you can write an article about how corn dealers are starving the poor. Expressing this same view to a group of people starving standing right infront of the house of a corn dealer and saying he is starving you would be bad. Online harms act: a piece of legislation that limits online content. Offence principle: if something in a society is very offensive we should be able to potentially limit this expression. Penalties for very offensive expression should be less than ones that cause harm You need to think about the extent, duration, and social value Ease avoided: if ur gonna be offended while going to the movie theatre, you can just get up and leave Motives numbers : how many people are offended? Intensity of the offence: how much does it offend? Community interest Competing democratic values principle: the balancing of different, sometimes conflicting, democratic values that are essential to the functioning of a democratic society. These values include individual rights, the rule of law, equality, accountability, and the collective will expressed through majority rule. At times, these values can come into conflict, and Canadian democratic institutions, especially courts and legislatures, must navigate these tensions to uphold the democratic system. The context doesn't matter as much in this one its more the fact that it is circulating In every case we must consider what is at stake and what are the risks and gains of alternative courses of action. Challenge: how do we determine if freedom of expression is more important than freedom of religion? How do we determine that one right is more important than the other? Ex: whatcott case: an evangelical christian man made posters denigrating homosexuals. He said that the sask human rights code hate speech provisions violated his freedom of religion. WEEK 4 albertaThe fourth estate: the press and journalism Freedom of discussion is essential to enlighten public opinion in a democratic state. News provides people with…. (shudson, michael 2008) Information Investigation Analysis Social empathy Dialogue Mobilization Alberta reference: An act to insure the publication of accurate news and information. Aberheart Aberheart wasn't very happy that there was stories that criticised his government He brought in a bill that said the media companies would have to also include the government's response in the stories Freedom of the press is an embodiment of the freedom of expression Because of this some of the work journalists do have legal protection  In 2019 canada got its first press shield law The jspa (journalistic sources protection act) it makes it less likely that courts will make it necessary to reveal a confidential source if it serves public interest. Recording: all media makers are allowed to record in public where people have a low expectation of privacy. This is different if the photo is specifically of someone. Who is a journalist?: See class slides for this answer Public interest: must be a issue that invites public attention WEEK 5: Stories are about people. Legal proceedings amplify painful stories. And publication bans animate battles for control over those stories. Open court principle: The open court principle is linked to the freedom of expression and freedom of the press which include the right of the public to receive information. Principle of openness: since the court is a public institution, whatever happens in them should be open to the public. Public surveillance and scrutiny as well. Freedom of expression includes our right to listen and hear and have information Freedom of expression protects listeners as well as speakers. Members of the public have a right to information Different rules apply to different provinces and different kinds of courts in regards to technology Sketches are allowed in court Most courts allow audio recordings but they are only allowed for being accurate in their reporting Tweeting and live blogging have become the go to method for live coverage Publication ban A usually temporary court order to temporary delay or limit the information in public communication about legal proceeding and or some of the persons involved in it Freedom of expression rights and openness principle weighed against Privacy rights Right to a fair trial Administration of justice Types of publication bans Discretionary non statutory bans Statutory publication bans (some mandatory some discretionary) Professional community norms (these are informal) ex: u will rarely hear the word suicide because it becomes a search term. Out of respect for the people involved in the situation. Also private lives of politicians r usually left out of the press In order to get a discretionary non statutory ban the press must show that: There is an important objective to be achieved That it is limited in scope That it is limited in time That it is specific on the relation to the type of content That there is no other less intrusive way to achieve the same outcome Statutory: Generally these exist to protect the vulnerable people by the fact of a criminal proceeding ex: children and sex assault victims General arguments for publication bans Jury influence Vulnerable witnesses Many many more WEEK 6 Defamation can be for people and companies  Defamation is being hurled back and forth and being used a lot more than it used to be Media life: Living in and not just with media technologies Media is the prism through which we understand things in our world Reality is open source. Once anybody could post stuff on the internet we have seen an increase in misinformation. We in a sense make up what is real from what we see and understand online because of the amount of tuff we see online Identities are always under construction. We are constantly re making ourselves through our media participation Private life is now largely public. Things just get posted online and its not necessarily good or bad. Ex: people talk about mental health online, miscarriages, breakups. This stuff is now shared online a lot more. This stuff changes the game We always have an imagined audience in mind when we post something online Reputation: a reputation is a shared or collective perception of another person Reputation can be understood as a public good We don't get a reputation on our own. It is produced in our social relationships with other people. It is a signalling function Networked communication has amplified reputational concerns It is really hard to vacuum away good or bad information about you on the internet Reputations in a network environment can be attacked quickly and from anywhere Defamation law is here to protect from reputational attacks Civil action for damages against somebody who communicates in a matter that damages your reputation unfairly Defamatory test Would the communication tend to lower the aggrieved individual in the estimation of members of the community (ex: if u take a video of a neighbour yelling at his kid and post it on facebook online captioned “bad dad” is not defamatory. If you write “I wonder if he hits his kid too?” is closer but it's not quite enough. If you say “I've seen him hit his son hard” then it would be defamatory. This would definitely lower him in the eyes of his community. The charge of defamation wouldn't stick if you could somehow prove that what you said is true because that is a defence.  Libel: written or printed defamation Slander: oral defamation Defamation can also be through pictures and stuff aswell Elements of a successful defamation claim: Words are defamatory in their ordinary or natural meaning or by innuendo That the words actually refer to you It has to be published (needs to made known to other people besides you) Defenses to defamation claim Justification (the truth defence) Privilege Fair comment Innocent dissemination Requirement for fair comment: Good for public interest It has to be fair and based on facts Understandable comment Honest Can't be malicious Information on social networking sites Persistence Replicability Scalability Searchability Norwich order: a court order for the disclosure of documents or information that is available in the United Kingdom, Ireland, and Canada. It is granted against a third party which has been mixed up in wrongdoing, forcing the disclosure of documents or information.