TORONTO, Nov. 22, 2013 /CNW/ - C-461, a private member's bill, has moved
quickly through the House of Commons and is now about to receive Third
Reading approval before it goes to the Senate and then becomes law.
The media has paid scant attention to the actual content of Bill C-461
(see background notes). As a result Canadians are not aware of how this
legislation will change the Access to Information and the Privacy Acts
in ways that could undermine the journalistic and programming integrity
of Canada's public broadcaster, the CBC/Radio-Canada.
We ask Canadians to tell their MPs and their Senators to reject this
attempt to weaken the CBC.
Here are our concerns with Bill C-461:
1) C-461 isn't needed.
Bill C-461 is based on the assumptions that the current Access to
Information Act (ATIA) is unclear and the CBC needs to be more
In fact, after several years of deliberations by the courts, the ATIA is
now very clearly defined - and it is working effectively. The
Information Commissioner of Canada has given the public broadcaster an
"A" grade for the timeliness of its access to information responses. In
addition, the current Access to Information Act grants the CBC the
power to provide strong protection for its confidential journalistic
sources while guaranteeing its independence from government and its
inherent right to free expression. The new law would require several
test cases and years of court proceedings to produce clear guidelines
for its application. The insight and clarity produced by past years of
judicial deliberation on the ATIA would be lost.
The CBC is also held accountable to Canadians by a government-appointed
board of directors, by the Auditor-General's review of finances, by CBC
reports to Parliament, and by licensing reviews by the CRTC.
2) C-461 threatens the CBC's journalistic integrity.
Parliamentary democracies such as the U.K., Ireland and Australia give
their public broadcasters strong protections under freedom to
information laws, allowing them to exclude journalistic, creative, and
As currently amended, C-461 does provide some protection for the CBC's
confidential journalistic sources (see below). However, everything else
that involves journalism, news gathering and reporting - including
reporters' notebooks, travel plans, interview strategies and budget -
is on the table for access requests. The CBC may refuse to disclose
such information if it would hinder the CBC's "journalistic, creative
and programming independence." But this is a very narrow and vague term
- in the context of the CBC it is usually taken to mean "independence
from government" - and could allow third parties, and even the subjects
of journalistic investigations, to acquire information about those
investigations. The CBC's journalistic integrity and its inherent right
to freedom of expression could be damaged. Additionally, the identity
of sources could potentially be deduced by such data.
3) C-461 could undermine the CBC's position in the media marketplace.
Bill C-461 also allows media competitors of the CBC to request
information about CBC business matters, including programming,
staffing, budgets, external contracts, travel, business strategies and
other creative endeavours. Some of this material must already be
disclosed under the existing access legislation. Parliamentarians need
to assess the degree to which these disclosures provide media
competitors with unique advantages in the marketplace. Since no other
media outlets are subject to the Access Act, it could be used to
undermine the CBC's ability to compete - and to survive.
4) C-461 opens the door to privacy requests that could also jeopardize
the CBC's journalistic integrity.
C-461 changes the Privacy Act by removing the CBC's right to exclude
privacy information collected for reasons of journalism and instead
makes disclosure of that information subject to a test of injury to the
CBC's "independence." As an example, if the CBC was investigating an
organized crime figure, that person could potentially take the CBC to
court to force the Corporation to turn over any research they had
uncovered about him or her - even before a report is broadcast. No
private broadcaster would be subject to such provisions. This could
seriously impede the CBC's ability to produce substantive journalism.
5) C-461 weakens the CBC's ability to protect its confidential
Aware that prominent court decisions have strongly supported the media's
right to protect confidential sources, the government has amended the
original version of C-461 to allow the CBC to exclude any information
that would reveal the identity of sources. However, the new law fails
to clarify who is to determine if information would reveal sources.
Under the existing act, as clarified by the courts, no one outside of
the CBC can review such material. The amended C-461 is not clear on
this point and will likely require several test cases and years of
court proceedings to produce clear guidelines.
Meanwhile, the Information Commissioner of Canada contends that she has
the right to review journalistic sources. That could make it less
likely that whistleblowers will even approach the CBC. Under the new
law, whistleblowers will know that if they approach the CBC with a
story of governmental corruption, their identity might be revealed to a
third party - the Information Commissioner and her staff. No other
media outlet would be subject to this requirement. Despite assurances
by the Commissioner that she and her staff will be able to protect the
identity of sources, this change means that whistleblowers will be more
likely to approach other news outlets rather than the CBC, and the
public broadcaster's capacity to conduct investigative journalism may
We, the undersigned are concerned about this threat to the CBC's ability
to do its work. We are asking Canadians to contact their MPs and their
Senators and ask them to stop Bill C-461.
Canadian Journalists for Free Expression (CJFE)
Arnold Amber, President
Canadian Media Guild (CMG)
Carmel Smyth, National President
Fédération professionnelle des journalistes du Québec (FPJQ)
Brian Myles, Président
Alliance of Canadian Cinema, Television and Radio Artists (ACTRA)
Ferne Downey, National President
Martin O'Hanlon, Director
Friends of Canadian Broadcasting
Ian Morrison, Spokesperson
The Canadian Association of Journalists (CAJ)
Hugo Rodrigues, President
Canadian Committee for World Press Freedom
Sue Allan, President
Steve Anderson, Founder and Executive Director
Jamie Biggar, Executive Director
Bill C-461 was promoted by its sponsor, Conservative MP Brent Rathgeber,
as a way to force federal departments and crown corporations to
disclose the salary of employees making more than $188,000 yearly and
at the same time to make the CBC more accountable by changing sections
of the Access to Information Act and the Privacy Act that affect the
public broadcaster. With dual goals and a roundabout way of achieving
them, C-461 was, from the start, an ill-conceived, complex piece of
legislation with serious implications for freedom of expression and the
integrity of the CBC's journalism.
As C-461 moved through the House, it became clear that the sponsor of
the bill and the government had different and conflicting purposes for
the legislation. The government, through the Department of Justice,
introduced an amendment to C-461 so that salary disclosure would only
begin with civil servants earning more than $444,000 yearly - thereby
excluding all but the highest paid mandarins or executives of crown
corporations. Feeling betrayed, Rathgeber resigned from the
Conservative Party over what he saw as the party's gutting of his bill.
As organizations concerned about freedom of expression, we strongly
object to the way this bill exploits the issue of CBC accountability -
to the point of weakening its journalistic integrity - in the pursuit
of that objective.
Canada's Access to Information Act is in urgent need of modernization.
But what is needed is a comprehensive package of reforms, not minor
tinkering with provisions targeting just one crown corporation. As the
Information Commissioner told the Standing Committee On Access To
Information, Privacy And Ethics on May 29th, there are potential risks
in the C-461 approach:
"... challenges related to access to information are complex. They
demand thoughtful, unified action and are not amenable to a "piecemeal"
solution ... While acknowledging the need to amend the law, I maintain
that it should not be done in a disjointed way since this leads to
issue-specific amendments which erode the Act's status as a law of
SOURCE: Canadian Journalists for Free Expression
For further information:
Canadian Journalists for Free Expression
416-515-9622, ext. 232
Jeanne d'Arc Umurungi
Canadian Media Guild
416-591-5333, ext. 243