Journalists who trespass: Case law is murky on both physical and digital trespass

This is the third part of a weekly four-part series on legal issues journalists should be cognizant about as they embark on their careers. Read Part 1 on anonymous sources and Part 2 on privacy here.

By Thomas Rose, law editor

This is the third part of a weekly four-part series on legal issues journalists should be cognizant about as they embark on their careers. Read Part 1 on anonymous sources and Part 2 on privacy here.

By Thomas Rose, law editor

There is no universal approach to the issue of trespass, which means journalists need to familiarize themselves with the applicable federal, provincial and territorial statutes, and even municipal bylaws on occasion.

Canada’s Criminal Code, for example, prohibits trespassing at night. Even a journalist found loitering or prowling on the property of another person near a private residence can be found guilty of trespass.

In May 2012 a Toronto Star reporter was caught at night allegedly peering over a backyard fence and taking pictures of Mayor Rob Ford’s private residence. The Star defended their reporter’s actions claiming that he was in a park behind the mayor’s house, which was public property. 

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Trespass laws usually place the burden of proof on the defendant. Had charges been filed against the reporter, Daniel Dale, the burden of proof would have fallen on him to prove, inter alia, that he had permission of the lawful owners of the public land to conduct his business. 

Generally, public parks are open to all citizens. However, under Toronto’s Municipal Code, individuals can be charged with trespass if they “create a nuisance by loitering, spying, frightening, annoying or otherwise disturbing other persons.” At the time of the Star incident, Ford stated Dale’s actions had left his family shaken. Successful use of the bylaw is not without precedent. In 2011, it was used to force protestors to take down tents they had erected on parkland as part of the Occupy Wall Street movement.

In possession

While the courts historically have given wide latitude to journalists caught trespassing, there is no absolute privilege granted to the media. This has meant that the courts will approach the issue of trespass on a case-by-case basis, often producing apparently contradictory and confusing results.

In general, however, the starting point in any trespass suit is that whoever is lawfully in possession of a property has the right to determine who can access the property. Individuals commonly recognized as being in possession include a tenant in an apartment, the owner of a property such as a house or shopping centre or anyone the primary owner authorizes to act on his or her behalf, such as a security guard or a ticket taker in a subway station. 

Whether it is private property or public property, there is almost always someone who has the authority to exclude persons, including the press, from the premises. The key for a journalist is first to identify who is in lawful possession and then gain consent from that person to access the property. 

The failure to gain consent was at the heart of a recent incident involving Toronto Star journalist Alex Consiglio who was charged last June with trespassing after taking photos of an injured GO Transit officer at Union Station. Those charges were later dropped.

While there are few restrictions on train and subway passengers taking pictures, according to transit officials, news photographers are required to obtain permission before taking any photos. At the same time, citizens using cameras, smart phones and other electronic devices to record the same event would be immune from prosecution.

The distinction made in Consiglio’s case is that a reporter uses pictures as part of a commercial enterprise, that is, to help the Star make money by selling newspapers or attracting viewers to its online site. In this sense, the transit authority argues it has a right to see what images are taken on its private property that may make it into the public domain. It is a view the News Photographers Association of Canada regards as censorship.

Even if you have been invited onto the property—in other words, if you have been granted consent—the person in possession can withdraw consent at any time. If that were to happen, you would have to immediately leave the premises.

To protect against future claims that you entered a property illegally, it’s a good idea to obtain consent in either written or recorded form.

Attending a police search of premises

It is not unusual for journalists to show up at a crime scene at the same time as police, or even to accompany them.

If evidence of a crime is found during a search of private property, and if that property belongs to someone who is eventually accused of a crime, the media's presence on the premises could result in a successful challenge by the accused to the reasonableness of the search.

In other words, a suspect could have all evidence against him ruled inadmissible if he can prove he did not give prior consent to the media to enter his premises.

R. v. West involves actions by CBC TV journalists in Vancouver who had been investigating the activities of a suspected child pornographer. When a search warrant was executed on the suspect’s apartment, the police informed the CBC, which sent a crew to the scene.

CBC's cameraman briefly entered the front door of the apartment after the police had entered and was recording events when the accused asked him to leave, which he did. A few seconds of this tape was broadcast in a CBC report. The suspect then sued the CBC. 

At trial, the accused pleaded guilty to possessing and distributing child pornography, subject to the result of his challenge of the search. The trial court rejected his argument and convicted him.

But on appeal, the seizure of the pornographic material, the evidence, was deemed inadmissible because it was determined that the CBC had trespassed on the man’s property without consent.

In its decision, the court noted that restraints imposed on government to pry into the lives of citizens go to the essence of a democratic state. It was especially critical of the police, writing that it was “unthinkable that officers of the state would undertake a search…when they knew the inside of a private residence would be filmed and probably broadcast to the public.” 

Digital trespass

Not surprisingly, the cutting edge of trespass laws and the ability of journalists to investigate increasingly involve the Internet.

In the past decade, a whole new category of trespass law has emerged in the United States that some commentators have suggested will likely form the template as to how courts in Canada will handle the issue of digital trespass.

In essence, lawyers and the courts in the U.S. have taken an old notion of trespass and given it a 21st century spin.

Trespass to chattels is an ancient concept that distinguishes between fixed personal property and moveable personal property, both real and inanimate. Historically, a chattel was property that was not fixed, such as livestock, or an automobile or a ship. In other words, the property in question was not a piece of land or a building.

In this sense, trespass occurred if an individual inflicted damage to the chattel, such as hobbling a horse or slashing the tires of a car, or if they acted in any way to dispossess a person of his chattel, such as blocking access to a property or conspiring to sell the deed of ownership to someone else without the rightful owner’s knowledge.

Applying the principle of chattels to the Internet in 2006, a court in Los Angeles held that trespass to chattels was a viable legal theory that could be helpful in addressing the growing problem of the distribution of corporate spyware and adware to the computers of private citizens.

In Kerrins v. Intermix Media, the court noted that spyware and adware track a user's online browsing habits to help online marketers place advertisements on websites.

The plaintiff in this case claimed that when he downloaded and installed the supposedly free games offered by the defendant, spyware and adware was automatically and secretly installed on his computer, which substantially impaired its ability to function.

In the same year as the Kerrins decision, another U.S. court considered for the first time trespass by means of electrons. In essence, the question before the court was whether a subatomic particle, the stuff that enables the World Wide Web to exist, was sufficiently tangible to warrant a trespass to chattel.

In that case, two teenage brothers hacked a long-distance telephone provider called Thrifty-Tel Inc. and stole its access codes. For a period of four months, the brothers made long-distance calls without paying. In finding for the plaintiffs, the court successfully extended the tort of trespass to chattels to the computer age.

In early common law, trespass required a physical touching of another's chattel or entry onto another's land. The modern rule recognizes an indirect touching or entry. The idea advanced by the court in Thrifty-Tel was that trespass could now also involve being “touched” by something that no one can see or feel, like an electron.

To date, Canadian courts have yet to apply the idea of a tort to chattels to the Internet. But it may only be a matter of time, especially when one considers how quickly such activities as data mining, the use of algorithms and crowd sourcing have become staples in the burgeoning field of digital journalism.

For those interested in exploring the idea of journalism and digital trespass, check out Canadian lawyer James Macdonald’s article “Electronic Trespass in Canada” and “Online Trespass to Chattels Needs Reform” by American law professor Eric Goldman.