Friday, January 04, 2008

Facebook, Publication Bans, and Canada's Youth Criminal Justice Act

While Canadian newspapers were precluded by the Youth Criminal Justice Act from publishing the names of the teen victim (and the two accused) in Toronto's first murder of 2008, the identities of all, apparently, were openly discussed on Facebook among the slain girl's mourning friends.

Immediately upon learning of her death, friends of the young victim established a Facebook group in her name and memory. According to press reports, certain posts to the group also identified the accused teens by name.

The murdered girl was subsequently identified by police, upon her parents' permission, as 14 year old Stefanie Rengel. Publication of the names of the two accused teens, a 17-year-old boy and 15-year-old girl, continues to be prohibited by the Act. They have been charged with first-degree murder.

Were these Facebook discussions by the victim's friends a violation of the Youth Criminal Justice Act?

Quite possibly.

A Facebook post with identifying information may well be a prohibited publication under the Act.

Let's take a look at excerpts from key provisions of the law:

Identity of offender not to be published
110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.


Identity of victim or witness not to be published
111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

This illustrates yet another example of the significant legal implications that may turn on how the Courts ultimately come to view Facebook.

Is it private or public?

Is Facebook merely an extended network of closed, limited-access personal diaries, or alternatively, a connection hub facilitating the new media of social publication?

Beyond that, are all Facebook postings to be treated alike? Is an open, publicly-accessible Facebook group more akin to a publication than an individual user's page?

What if an individual user with lax privacy settings were to post a 'status update' like "John Doe wants Canada to know that the name of the teen victim in Toronto's first murder of 2008 was Stefanie Rengel, and we loved her and miss her."

To complicate the question even further, individual Facebook pages may now be indexed by Google, subject only to each user's self-established privacy levels, which can be set to limit search engines' access. Therefore, with low privacy levels, John Doe's posting might become available world-wide via searches extremely quickly.

It would be difficult to argue in this scenario, then, that such a status update, however well or privately-intentioned, would fall outside the umbrella of prohibited publications. Particularly if it did lead to a viral spread of this information online.

The Toronto Star looks at some of these challenges today in Gag orders in a Facebook age:

For 24 hours, newspapers, TV and radio stations were legally forbidden to release Stefanie Rengel's name, but on the Internet tributes to the slain teen – and the names of her accused killers – sprang up almost immediately, including on the social networking site Facebook.

..."It's a very good question if the people who post things on Facebook are actually breaking the YCJA," Peel Const. Wayne Patterson said. "I guess it all boils down to whether Facebook is eventually determined by somebody that it is a publication."

Alain Charette, media relations spokesperson for the Department of Justice, said the restriction "does apply to the Web, including Facebook ... generally publication covers a very wide spectrum."

"If it's about a violation, it's in police hands. If police get knowledge of that, it's for them to take it from there," he said.

- Garry J. Wise, Toronto

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