Search

The ease with which sexually explicit computer images of children can be created, disseminated and downloaded in the digital era has given renewed impetus to the efforts of national governments and supranational organisations to protect minors from the harms associated with child pornography. One common strategy has been to criminalise the mere possession of such material. In Canada, a recent constitutional challenge to the validity of penal restrictions has required the Supreme Court to consider the boundary between protected expressive activity and the welfare interests of children. In what follows, the legitimacy of this judicial intervention in an admittedly complex area of social policy is queried. In particular, it is suggested that the court may have failed to evaluate the true value of the expression interests at stake in child pornography in the face of the legislature's attempt to advance other significant Charter values.

The decision of a unanimous House of Lords in X Ltd v Morgan-Grampian Ltd and Others ' will probably be remembered as the occasion when the ability of the media to protect their sources under section 10 of the Contempt of Court Act 1981 was seriously eroded. Such an account would, however, fail to record the efforts which were made to give substance to the general legislative policy behind s 10 namely, ensuring the flow of information into the public domain via the media (ie by protecting media sources). It will be argued that, whilst certain criticisms may be made of the decision to order disclosure, the case ultimately raises doubts about the adequacy of the statutory formula itself.

Legal protection of journalists' sources and materials has been said to be a pre-requisite for freedom of expression and information. The maintenance and development of an informed, self-governing democracy requires that newsgatherers be free to a significant extent from a compulsion to disclose either their sources of information or notebooks and/or other documents. Coerced disclosure is problematic on a number of counts. For example, once it becomes known that a media organisation has complied with a demand for disclosure of images of demonstrators at a public protest, the safety of journalists and camera crews at demonstrations is put in jeopardy.