‘HORRIFYING FOR VICTIMS’
Search power has legal implications
A leading Ottawa defence lawyer says the ability of Google’s search engine to thwart court-ordered publication bans has profound implications for the criminal justice system.
“If that’s what’s happening, the implications of that are horrifying for the victims,” said Anne London-Weinstein, president of the Defence Counsel Association of Ottawa. “The implications of this for the criminal justice system are troubling.”
London-Weinstein was reacting to Citizen stories that described the ability of Google’s search engine to link a court-protected name to online news coverage in high-profile cases.
The Citizen documented eight instances in which searching a name — banned from publication by a judge to protect a young offender or victim — linked to online news coverage of the case.
What’s more, in two high-profile Ontario cases, Google searches aimed at finding online trial coverage returned “related searches” that included the names of individuals shielded by the courts.
Related searches appear at the bottom of a Google search page in blue hyperlinks. The tool, designed to find connections unknown to the search-engine user, was first unveiled in 2008.
London-Weinstein said she was shocked to learn the extent to which publication bans can be undermined on the internet: “Legislatively, I think they’re going to have to look at policies to address this issue. I’ve never heard of it before and I was blown away when I read about it.”
Conservative justice critic Rob Nicholson said the federal government cannot allow the situation to persist if it means young offenders and sexual assault victims can be identified online.
“We should be paying attention to the Criminal Code to ensure it’s updated to reflect the realities of the internet age,” he said. “I think it’s a continuing process, quite frankly, and I think it’s obviously something that has to be looked at. … Something like this is intolerable.”
Nicholson vowed to raise the issue at the House of Commons justice committee.
Thérèse McCuaig, a board member of the national charitable group Victims of Violence, said victims should have the right to remain anonymous.
“It should be the victim’s choice,” said McCuaig, whose 17-year-old grandson, Sylvain Leduc, was abducted and murdered in Ottawa in October 1995.
McCuaig said crime victims, particularly those who have been sexually assaulted, will be even more reluctant to come forward if they know there’s a chance their identities can be discerned online.
University of Ottawa law professor Karen Eltis, an internet-law specialist, said the publication ban issue is part of a much larger discussion that needs to take place about the justice system in the digital age.
Law, she said, has always been attached to territory, most commonly to a nation-state. But the internet defies that convention, Eltis said, because it’s divorced from a physical territory or any one country.
U.S.-based companies such as Google, Facebook and Twitter, she said, have filled the federal policy vacuum that now surrounds issues such as internet privacy and online hate speech — mostly by agreeing to consider complaints on a caseby-case basis. (Google has said it will act on individual complaints about publication bans and remove search results that violate local laws.)
“We cannot in the digital age just rely on informal co-operation with companies like Google,” Eltis said. “There has to be something that allows for Canadian norms to be enforced. Otherwise, the law is rendered meaningless.”
Eltis suggested the Office of the Privacy Commissioner of Canada requires stronger enforcement powers to police privacy issues while lawmakers address the policy vacuum.
There has to be something that allows for Canadian norms to be enforced. Otherwise, the law is rendered meaningless.