Law Times

Law Times • December 8, 2014 Page 11 www.lawtimesnews.com Lingering media coverage a growing issue for defence lawyers By Glenn kauTh Law Times s the debate over the right to be forgot- ten continues, many criminal lawyers have found themselves in the position of dealing with concerns from clients that stories about them re- main on the Internet even if their legal matter goes in their favour. "Once it's up there, it's up there," says Maureen Salama, an associate at Brauti Thorning Zi- barras LLP, of the lingering me- dia stories about initial charges against clients. With media outlets gener- ally refusing to remove stories, clients can feel the impact for a long time, she notes. "I think the concern is that media outlets lose a lot of interest in these stories," says Salama, noting the media may report on the initial charges in a sexual assault case, for ex- ample, but not follow it through to trial or the ultimate resolution. "By the time we get to a trial in those situations, it could be years later," she says. "This is something that's go- ing to constantly come up for them in their personal lives, their professional lives," she adds, cit- ing a client who has told her every person he asks out on a date quickly learns about his case through a Google search. "He was just devastated and he couldn't believe it," she says. "The stigma of just being charged is sometimes a punish- ment in and of itself." The question, then, becomes what remedies do clients have. It turns out they don't have a lot of options, says Salama. In many cases, the main solution is to get the media outlet to run an update on the outcome of the case. That means finding all of the stories that have run and contacting the various editors involved. It also means getting the various docu- ments such as a copy of the cer- tified information showing the withdrawn charges. "You as the person in that situation have to go to great lengths to get that done," says Salama, noting her role as coun- sel primarily involves helping track down the information for the client to take to the media outlet. The result, she notes, is often a short story detailing the outcome and still linking back to the original article. Many media outlets will also link the original article to the new one, she points out. For Salama, the concern is that the media sometimes doesn't follow cases to their conclusion. "I see it particularly with sexual assault. I think the stigma is there and the media attention is there." But for other lawyers, there may be merit in the idea of hav- ing some legal remedy to enforce the removal of stories. "I think we need a new tort or some way of requiring Google to remove arti- cles that are no longer relevant or continue to cause damage," says David Jewitt of Ottawa's Jewitt McLuckie & Associates. Jewitt had a client, real estate agent Gillian Burnside, who was subject to what she calls a "nightmare" of publicity when media stories, based on leaked info rmation, cast a shadow on her involvement in an RCMP ef- fort to lease premises for a covert security project. An article in the Ottawa Citizen in 2011 followed earlier stories that linked Burn- side's then-boyfriend, an RCMP superintendent, to an alleg- edly fraudulent $3-million lease agreement. They included al- legations his "realtor girlfriend" had benefited from a $70,000 commission. In October, the RCMP issued a public apology to Burnside following a settlement between the parties. "The RCMP hereby offers a public apology for any damages caused to Ms. Burn- side's personal and professional reputation as a result of the pub- licity garnered after an unknown source provided RCMP infor- mation to the media about her acting on behalf of the RCMP in a 2009 real estate transaction. The RCMP apologies to the plaintiff for any damage caused to her reputation. "Further and in hopes of cor- recting negative publicity when Ms. Burnside was named in media reports, the RCMP ac- knowledges that Ms. Burnside acted professionally and pro- vided valuable commercial real estate services to the RCMP. The RCMP has never asserted that Ms. Burnside acted improperly when providing those services. The RCMP would not hesitate to recommend Ms. Burnside's commercial real estate services to others." "What happened after that newspaper story came out has been a nightmare. The article and associated negative com- ments spread on news sites and blogs across the Internet," said Burnside, who couldn't defend herself at the time due to her real estate agreement with the RCMP. The case wasn't a criminal one as the investigation into Burnside and her former part- ner resulted in no charges with all internal RCMP proceedings dismissed as well. According to Jewitt, the case followed a bit of a different path from other mat- ters in that they took issue with the RCMP when they sued the force for negligent investigation and the leak rather than target- ing the media outlets. Once they settled and got the apology, they then engaged the media in a campaign to get the new infor- mation out there. "It seemed to work," says Jewitt, who notes he was "delighted with the outcome" given that the updated stories with the apology have largely replaced and rank ahead on Google of the older ones with the original allegations. But he adds it's an issue law- yers and clients will increasingly have to deal with and something he hopes a new legal remedy can address. "I don't see it go- ing away," he says. "Why wasn't there a limitation that can be forced on Google with respect to the publication of material?" But for media lawyer Brian MacLeod Rogers, the idea of a right to be forgotten, something Europe is dealing with now fol- lowing a high-profile European Court of Justice case earlier this year, isn't something Canada should consider. "I'm watch- ing it with great interest and concern. I think what Google is being forced to do in Europe is quite problematic," he says of the current process underway in which the company is dealing with thousands of request s to delete links. As MacLeod Rogers sees it, the issue ref lects the conf lict between the European focus on privacy rights and the common law's emphasis on the public in- terest. "I think we do take a dif- ferent approach here and I think we should," he says. "I think the whole issue of unpublishing stories and cor- recting stories and the need for some people to try and get rid of stuff in their past will only come to be more and more impor- tant," he adds. "It'll be a real battle, I think." LT FOCUS REASONABLE DOUBT? If you're building your case with anything other than Canada's new and most comprehensive resource for criminal cases and expert commentary, it's only natural to wonder if you've missed something. NEW! WestlawNext® Canada CriminalSource™ Go to court with confidence. westlawnextcanada.com/criminalsource A 'The stigma of just being charged is some- times a punishment in and of itself,' says Maureen Salama. that? Chapman said she doesn't think so. And Dellandrea suggested that if people make their information available to a large number of online friends on social media, it should be "fair game" even if they don't have a fully public profile. It's an issue she noted the courts have dealt with in the civil sphere with judges finding the number of people on someone's social media list can affect their expectation of privacy. Besides subpoenas and informal options, the lawyers also pointed to the possibility of seeking social media information through ap- plications for third-party records under s. 278.1 of the Criminal Code. But when it comes to tendering social media information, there can also be questions about whether it's real or electronic evi- dence as well as the issue of authenticity. As the lawyers pointed out, the courts have differed on some aspects of this issue. In the New Brunswick case of R. v. So, the court considered photographs of a complainant's computer screen showing a Facebook conversation as well as printouts of five screen captures. While the court found they were electronic documents that required authentication as per the Canada Evidence Act, it ultimately determined the screen printouts were authentic and admitted them as evidence. While that case set a relatively low threshold, an Ontario Court dealt with a related issue in R. v. Andalib-Goortani. When the Crown sought to introduce a picture posted anonymously on a web site, the absence of metadata showing the underlying information about the file created doubts about whether someone had altered it. Chapman called it a "go-to" case for the defence. Either way, it's clear the issue around social media in criminal cas- es is a developing area. While O'Donnell said "there's a huge orchard of evidence out there that's just sitting there," he said few lawyers he sees in court are taking advantage of it, even when it comes to simple things like using Google Street View to show the scene. For Robichaud, that needs to change. "Whether you like social media or not, it's happening," he told the conference. LT Lawyers slow to mine social media evidence Continued from page 9

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