Keeping Your Name Out Of The Media

You’ve heard the saying “any publicity is good publicity”. However, this is not the case when you are involved in a criminal offence. In such circumstances, your goal should be to stay out of the public eye as much as possible, and ensure that only the necessary few people are aware of your matter. In addition to notoriety and embarrassment, having the details of your criminal case disseminated will aggravate various other aspects of your daily life. Employment prospects may be hindered as most employers are reluctant to hire persons with outstanding criminal charges. As such, it is important that you know exactly how to keep your name and information out of the media.

Subject to certain restrictions, court proceedings and details thereof are open to the public. ‘Freedom of the press’ generally allows the media to report on criminal matters and release case details such as the names of the involved parties. For example, if you are charged with assault, the newspapers would likely be allowed to publish your name, the name of the victim, and the details surrounding the incident. If you do not want such information to be divulged at large, then you may wish to seek a publication ban.

A publication ban is a court order prohibiting the media or public from disseminating certain details pertaining to an otherwise public judicial proceeding. The purpose is to protect the privacy and welfare of certain parties, while still enabling their participation in the justice system. Publication bans are often issued to protect the safety or reputation of vulnerable persons, or to otherwise ensure the proper functioning of the justice system. If you are seeking to avoid public exposure, these court orders are generally your best recourse, as simply requesting that the media not publish your name may have the deleterious opposite effect of provoking them into giving your matter significant attention.

In certain circumstances, a judge must issue a publication ban. For example, under the Criminal Code of Canada, where a publication ban is sought to protect the identity of victims and witnesses of sexual offences who are under the age of 18, the judge must grant the order upon request. Under the Youth Criminal Justice Act (YCJA), the name of a young person (or any other information that may identify them) must not be published or otherwise disseminated. This applies to victims, witnesses and accused persons who are under the age of 18 (unless an adult sentence is given, in which case the name of the offender can be generally released). Additionally, the media may be prohibited from publishing the accused identity if doing so may tend to reveal the identity of the victim. For example, if the accused is the young victim’s father, and they share the same surname, then the media may be precluded from releasing the father’s identity.

In cases other than those mentioned above, a publication ban may still be issued at the discretion of the judge. Specifically, a judge may make an order protecting any victim or witnesses’ identity if the judge is satisfied that such order is “necessary for the proper administration of justice”. In deciding whether to make such an order, the judge must consider several factors, including but not limited to:

(a)   The proposed order’s effects on the accused person’s right to a fair trial;
(b)   Whether there is a real and substantial risk that the witness or victim will suffer significant harm if their identity is disclosed;
(c)    The availability of alternative measures to protect the identity of the victim or witness; and
(d)   The impact of the proposed publication ban on the freedom of expression of those affected by it; and

As such, even if the safety or reputation of a person is not at stake, a publication ban may be ordered in proceedings where widespread publicity may somehow adversely affect the case or otherwise interfere with the administration of justice. However, mere prevention of embarrassment or inconvenience does not, in itself, constitute sufficient grounds to justify a publication ban. Publication bans are intended for victims and witnesses who may suffer real hardship by having their identity released to the public; the bans are not available for an accused person who simply wishes to preserve his or her own reputation.

If you are a victim or witness seeking a publication ban, you must strictly adhere to the provisions for issuance as set out in the Criminal Code of Canada. Namely, you must make an application or written request to the judge whereby you indicate why the protection of a publication ban is necessary. You are required to give notice of your application to the Crown prosecutor, the accused, and any other person that may be affected by the order. Once these steps have been completed, the judge may then hold a hearing to consider your request for a publication ban. At the hearing, those parties who are affected by the possible order will be given a chance to speak. After the hearing, if the judge agrees that the publication ban is necessary to protect the applicant’s identity, the ban will be ordered.

So, if you are involved in court proceedings and wish to keep your personal details out of the media, a publication ban is essential. Whether or not the judge will be obligated to grant such an order will depend on the circumstances, but you have nothing to lose by putting forward the application. If a publication ban is ordered then your identity and other intimate personal information will be safe and sound. If no such order is made, then you should comb your hair or put on some makeup, as you may be having to smile for the cameras on the next court date.