Canadian court sets troubling precedent for press freedom

April 4, 2016 3:17 PM ET

New York, April 4, 2016 - A Canadian court's decision compelling a journalist to hand over private communications he had with a source sets a negative precedent for press freedom, the Committee to Protect Journalists said today.

The Ontario Superior Court of Justice on March 29 ordered Ben Makuch to hand over his communications with Farah Shirdon, a Canadian citizen who allegedly traveled to Iraq and Syria to join the Islamic State group. Makuch wrote a series of articles for Vice between June and October 2014 about Shirdon, whom he identified by his nom de guerre, Abu Usamah. Canadian prosecutors in September 2015 charged Shirdon in absentia with participation in a terrorist group and in terrorist activity, according to news reports.

Canadian security officials on February 13, 2015, obtained a production order--a judicial order for information--demanding that Makuch turn over all the communications that he had with Shirdon via the Kik messaging application. The order also required Makuch to turn over information about how he got in contact with Shirdon. Vice and Makuch challenged that order on the grounds that it could have a chilling effect on press freedom, Iain MacKinnon, Vice's lawyer in the case, told CPJ by telephone. MacKinnon said that Vice is considering an appeal.

"We are concerned about the effect that this ruling might have on the ability of the media to report on issues of public interest while building relationships with their sources," CPJ Senior Program Coordinator for the Americas Carlos Lauría, said. "Journalists should not be forced to function as an investigative arm for the police."

According to the Ontario court's ruling, which CPJ has reviewed, Vice argued that the order was an overly broad attempt to get information that the police could also obtain through other means. Vice said that the order could have a chilling effect on press freedom.

Judge Ian MacDonnell, who presided over the hearing, acknowledged in his decision that it was important to balance the interests of the police investigation with the free expression and privacy interests of the media. But he claimed that the police had reason to believe that the communications would support their case. He ruled that the fact that the information was not off-the-record or from a confidential source mitigated some of Vice's concerns.

MacKinnon, Vice's lawyer, disputed this analysis.

"Journalists like Ben spend months or years cultivating sources, developing relationships and trust with jihadists and militants, trying to understand why they are doing this. They develop sources and certain trusting relationships on the understanding that this won't all be handed over to the police willingly," he said. "If an interview subject now is aware that an order can easily be served on a media outlet or journalist, witnesses and interview subjects may be reluctant to be candid to journalists."

Prior to the March 29 ruling, security officials' application for the order and the order itself were under seal and inaccessible to Vice. Judge MacDonnell partially revoked this seal, but banned Vice from publishing information based on these documents until criminal proceedings against Shirdon have concluded.

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