I wrote this as an opinion for the Halifax Chronicle Herald, where it was printed on 19 November 2014:
The story of the past week has been the publication ban in the “high profile child pornography case” (Google it), when it should have been a discussion about sexual assault, child pornography and cyberbullying.
The police have investigated a number of instances of clear violations of the publication ban and have declined to press charges. They have also declined to provide a rationale, so that the rest of us have no guidance about whether we can discuss this incredibly important story without facing the wrath of the justice system.
The parents of the victim have said her name, over and over again. Social media is rife with mentions of her name. Foreign media have said her name in the context of her story. And this is a good thing, since we as a society have to come to terms with and learn from the horrible ordeal faced by a 15-year-old whose photo was taken and used to further abuse and bully her.
The rest of us are left wondering whether we would face the full brunt of the criminal justice system for saying a single word — her unique name — which has become synonymous with rape, cyberbullying and suicide.
The Criminal Code is clear: in all cases of child pornography, a judge must issue a ban prohibiting the publication or dissemination of the identity of the victim. This makes perfect sense. The last thing we as a society would ever want would be the re-victimization of a young person in the justice system or in the media.
Parliament, when the law was written, did not have this particular situation in mind and left the judge no wiggle room. The ban is mandatory.
However, the judge did make it clear in his decision when media outlets challenged the ban that there is a natural escape valve: even if the evidence shows a clear violation of the law and a slam dunk for a conviction, the prosecutor must determine whether the public interest is best served by the prosecution of the case.
The public interest would never be served by a prosecution of anyone for naming the victim in this case. But we are left with a situation where the rules are completely unclear and anybody discussing this case is standing on shaky ground.
It is time for the Attorney General of Nova Scotia or the Director of Public Prosecutions to publicly state that the public interest would not be served by any prosecution for saying her name and that they would not pursue charges against anyone for doing so.
And then we can stop talking about the publication ban and instead talk about the much more important issues of sexual assault and cyberbullying, and what we are doing about it.
David T.S. Fraser practises Internet and privacy law with McInnes Cooper law firm in Halifax.