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certainly have to be faced that French-speaking Canadians would receive much of the broadcasts through interpretation and it would therefore be important to ensure that the interpretation was of a very superior quality.
86. The prohibition of commercial sponsorship for which Section 116 of the United States Legislative Reorganization Act 1970 provides is consistent with Parliamentary dignity and decorum. It is however a question which might have to be given special consideration if the House were to enter into arrangements with private broadcasters. Sponsorship has a direct bearing on expenses and if broadcasters were obliged to pay fees or incur costs it might be neither fair nor practical to prohibit commercial sponsorship.
ASPECTS OF LAW AND PRIVILEGE 87. Your Committee has no doubt that a Member is protected by absolute privilege in respect of anything he says in Parliament. This protection is founded in the British North America Act (section 18) and in the Senate and House of Commons Act (sections 4, 5 and 6). Whether or not a Member is equally protected by absolute privilege when a speech made in Parliament is simultaneously broadcast by sound or television is arguable. While expert witnesses giving evidence before British parliamentary committees have confidently expressed the view that Members would continue to be protected, the Parliamentary Counsel has expressed the opinion that, in the Canadian context, there is some doubt in the matter.
88. As has already been noted above, parliamentary broadcasting in Australia is governed by the Parliamentary Proceedings Broadcasting Act 1946. This Act extends protection to the broadcasters, but in the Australian view the protection enjoyed by Members themselves is founded in the Australian Constitution and the Bill of Rights of 1688. In 1945 the Parliamentary Standing Committee on Broadcasting was advised that if the whole of the proceedings were broadcast a qualified privilege would apply to the broadcasters. This qualified privilege could only be upset by proof of malice and it would be difficult to establish malice if the whole of the proceedings were broadcast. As Parliament had provided for the absolute protection of Hansard reports it was thought prudent to introduce legislation to provide the protection of absolute privilege to broadcasts of the proceedings.
89. Section 15 of the Australian Parliamentary Proceedings Broadcasting Act 1946, therefore, provides: “No action or proceeding, civil or criminal, shall lie against any person for broadcasting or rebroadcasting any portion of the proceedings of Parliament."
90. The wording of this section would appear to confer upon all broadcasters the same protection of absolute privilege which is enjoyed by a Member when speaking in Parliament. It is understood from information supplied to your Committee, however, that in practice the protection applies only to persons authorized to broadcast or rebroadcast. Your Committee understands that no problems have arisen which were not fully provided for under the legislation.
91. In contrast with Australia, legislation to regulate the broadcasting of parliamentary proceedings has never been introduced in New Zealand. The view taken in New Zealand was that a member was fully protected by absolute privilege in respect of any words spoken by him in Parliament whether they were broadcast or not and that no further statutory protection was necessary. The New Zealand Broadcasting Corporation takes the view that the broadcasts constitute an extension from the public galleries of the House of Representatives and that since they are continuous throughout normal sitting hours they therefore constitute a fair and accurate report of the proceedings. It should be noted however that the broadcasting company is Crown owned and not liable for its tortious acts.
92. In 1949 the Legislative Assembly Act of Saskatchewan was amended by the extension of the provision relating to immunities and privileges of Members. Section 34 of the Act now reads as follows:
34(1) No member of the Assembly shall be liable to any civil action or prosecution, arrest, imprisonment or damages by reason of any matter or thing brought by him by petition, bill, resolution, motion or otherwise or by reason of any. thing said by him before the Assembly.
(2) The immunity provided by subsection (1) applies notwithstanding that words spoken by a member before the Assembly are broadcast, provided that the broadcasting takes place while the words are being so spoken.
The Legislative Assembly Act-Chapter 3_Revised Statutes of Saskatchewan 1955.
93. The Act thus protects the absolute privilege of Members but makes no provision for the protection of those who broadcast the proceedings. It is probably assumed that the qualified privilege which protects those who report the debates in the press extends also to the broadcasters. The lack of specific protection does not appear to have caused any problems during the 25 years that parliamentary broadcasting has been taking place.
94. In considering the protection afforded to Members, broadcasters and interpreters under the present law your Committee called for the views of the Law Clerk and Parliamentary Counsel, Mr. J. P. J. Maingot, who presented a considered legal opinion. A summary of his advice to the Committee is set out in Paragraphs 95 to 102 which follow.
95. The position in England in this matter is still under study. The Select Committee of the House in England which studied the question in 1966-67 ?, reported that the privilege of freedom of speech would continue to protect any member from legal action in respect of what he said in debate in the House if the debate was broadcast and that broadcasting organizations would be able to rely on the legal defense of qualified privilege so that fair and faithful reports would be protected; partial reports where malice could be established against the organization would not be protected. The Committee concluded that if parliamentary broadcasting were permitted, it would be desirable to enact a safeguarding clause similar to the clause enacted in the Australian Act of 1946.
96. A Joint Committee was then established subsequently and it submitted an interim report December 1969 8. It concluded first of all that there should, in principle, be no difference in the law of defamation applicable to official reports of parliamentary proceedings whether those reports be printed or broadcast. It then considered whether the existing law of defamation required any amendment so as to give effect to this principle. The Joint Committee stated that whatever the press could do under the Parliamentary Papers Act of 1840, the broadcaster could also do, but that when it came to publication of debates by radio and television, the Act offered no protection to a broadcaster. If it were decided to permit "live" broadcasts, the 1840 Act in the opinion of the Joint Committee could and should be amended by enacting that "publication" be deemed to include broadcasting so that when the debate was broadcast by television it would be a "publication" for purposes of the law of defamation and also under the authority of the House. With respect to extracts or abstracts of the proceedings, the Defamation Act 1952 amended that part of the 1840 Act relating to extracts and abstracts by including "broadcasting" when that Act referred to printing. The Joint Committee concluded that if either House of Parliament broadcast an abstract or extract of its proceedings the broadcasting company could produce the relevant sound or video recording and if they demonstrated that it was published in good faith and without malice, the company would have a good defence to any person alleging that the extract or abstract defamed him.
97. The Joint Committee said that as the law stands the broadcasting companies would enjoy qualified privilege in respect of the live broadcasting of parliamentary proceedings and are therefore in the same position as the press in reporting the proceedings. The Joint Committee concluded by recommending that the 1840 Act by amended to include "broadcasting" in the expression "publication of reports", but that the initial recording of the proceedings be done by House employees who would enjoy absolute protection. When fed to the broadcasting agencies for transmission to the public the “rebroadcast" of the proceedings or extracts or abstracts therefrom would be subject to the qualified privilege at present available to the press.
98. The Parliamentary Counsel takes the view that, basic to the study of the legal consequences of broadcasting parliamentary proceedings, is a requirement to differentiate between the official publication of parliamentary proceedings by means of broadcasting and press and broadcast reporting of the proceedings which are officially published. The reporting of official parliamentary proceedings by press or broadcaster is not based on the privileges of Parliament but is based on public policy. This principle assumes that although the publication of the official reports may be to the disadvantage of the particular individual concerned, yet
* First Report from the Select Committee on Broadcasting, etc. of Proceedings in the House of Commons. HC 146.8 August. 1966 Minutes of Evidence
First Report of the Joint Committee on the Publication of Proceedings in Parliament, HL 26 and HC 48, 3 December, 1969.
it is of vast importance to the public that the proceedings of Parliament should be universally known, provided however that anyone reporting only part of the proceedings gives a fair report of what transpired. This applies to the reporting of official reports and before this legal qualified privilege attains to the reporting of part of an official publication or for that matter, before a legal absolute privilege attains to the reporting of an official publication in toto, it must be established that the publication is in law official.
99. The Canadian law of Parliament in the matter of official publication is the same as that of the British Parliament and both stem from the Parliamentary Papers Act of 1840. Sections 7, 8 and 9 of our Senate and House of Commons Act state that the "publication" by or under the authority of the Senate or House of Commons of any report, paper, votes or proceedings are absolutely privileged in toto and that anyone using extracts therefrom has a qualified privilege in the legal sense. However, publication" in the context of the Act authorizes only printing, and a simple amendment could extend it to broadcasting. In the interim however, it is felt that if the House of Commons proceeded to broadcast without enabling legislation, a court in ruling on an alleged defamation which was broadcast, would be competent and compelled to fall back on the basic principle which lies behind parliamentary privilege: the question being, is the broadcasting of these proceedings necessary for the House to perform its function as a legislative body? The court might find that it is not necessary. This would apply equally to the whole of the proceedings being broadcast or an impartial extract of the broadcast. This is suggested because what is being affected by broadcasting is not simply an internal matter of the House of Commons but one which affects the rights of persons outside the House viz., those persons who may be defamed.
100. With regard to the constitutional question, section 18 of the British North America Act provides that Parliament has the authority to define its privileges, immunities and powers but not so as to confer any which exceed those at that time held and enjoyed by the British Houses of Parliament. Pursuant to section 18 of the British North America Act, section 4 of the Senate and House of Commons Act was enacted and it provides that each House and its members hold and enjoy the same privileges, immunities and powers as those held by the British Houses of Parliament in 1867 and that Parliament may define them further, with the proviso as found in section 18. Section 91 of the British North America Act, however, provides that Parliament may make laws in relation to all matters not coming within the classes of subjects assigned exclusively to the provincial legislatures. Therefore, Parliament may amend section 18 of the British North America Act to provide that its privileges may exceed those of the British Parliament.
101. The question of whether the privilege of freedom of speech enjoyed by members would extend to the occasions when speeches made in the House were published by means of broadcasting, and the concomitant effect on broadcasters, is not settled in England. It would therefore be necessary to amend section 18 of British North America Act to remove the present restriction whereby the privileges, immunities and powers of the Canadian Parliament may not by Act of Parliament exceed those held and enjoyed by the British Parliament. The right to legislate in matters of civil rights rests with the provincial legislatures and there is a danger of the civil rights of persons being jeopardized in the event defamatory words affecting a third party are uttered and broadcast. However, section 18 of the British North America Act is an express grant to Parliament giving it authority to deal with the immunities and privileges of Parliament and its members. It transcends the effect that in so doing the civil rights of individuals may be transgressed.
102. In legislating that its proceedings may with impunity be published by means of broadcasting, Parliament would be defining its privileges as authorized by section 18 of the British North America Act. That is to say, a member's immunity and freedom to speak as he sees fit, subject only to the rules of the House, would continue while his speech was being heard and/or while he was being seen on television outside the Chamber. Parliament therefore would by statute be spelling out that each House may publish the speeches of its members by broadcasting them. The provinces on the other hand would continue to legislate on whether the reporting of a debate is in law privileged but they could not include in any definition of libel, a defamatory statement uttered during a speech which was broadcast from the Chamber because this relates to how the proceedings of each House may be published, which is well within the privileges of Parliament.
103. On the evidence and advice available to your Committee it is not therefore clear what protection would be available under existing laws to Members of
Parliament, to broadcasters of parliamentary proceedings, to interpreters of such proceedings, to witnesses giving evidence before parliamentary committees, and to others involved in or affected by parliamentary broadcasting. The Parliamentary Counsel in the opinion referred to above and which is summarized in paragraphs 95 to 102, concluded that if the proceedings of the House of Commons were to be broadcast the following matters of law would need to be taken into consideration:
(a) The courts would have jurisdiction to determine the validity of any claimed privilege of the House.
(b) It is questionable whether the present law of Parliament includes in its privilege of freedom of speech the freedom on the part of a Member to libel a third party and have it published by broadcasting. The broadcasting company would not be protected in these circumstances.
(c) The courts may well find that a Member is also not protected.
(d) The present law of Parliament in England relating to the privilege of freedom of speech does not clearly establish that the publication of proceedings by broadcasting is inherent or included in this privilege.
(e) Section 18 of the British North America Act which states that the House of Commons enjoys the same privileges as those in the British House of Commons and may, by Act of Parliament, define these privileges (but not so as to exceed those held by the British House at the time of the passing of such Act), may in this regard be amended so as to define these privileges to, in fact, exceed those held by the British House of Commons.
(f) Sections 7, 8, and 9 of the Senate and House of Commons Act would be required to be amended inter alia to define "publication" to include broadcasting.
(g) The privilege of freedom of speech would be required to be defined to include the occasion when the Member speaks while the proceedings are being broadcast.
104. It seems, therefore, that there would be a need for Federal legislation to protect Members, broadcasters, interpreters and others. One of the decisions which would need to be taken is whether absolute privilege or qualified privilege should apply to the broadcasters. The Parliamentary Proceedings Broadcasting Act of 1946 of Australia confers absolute privilege on the broadcasters. The view expressed in Great Britain by the former Lord Chancellor, Lord Gardiner, and by the Joint Committee on the Publication of Proceedings in Parliament in its first report is that the broadcasters should be on the same footing as the press and protected by qualified privilege. The principle underlying qualified privilege is that an accurate report published in good faith and without malice or intent to injure is protected, whereas a selective or garbled report is not. If the broadcasters were able to rely upon absolute privilege as in Australia they would be protected even if they broadcast a speech or extract from a speech containing a defamatory statement in isolation from the rest of the debate. The House might consider that the best course of action would be to extend absolute privilege to any broadcasters employed by Parliament while engaged in their duties under the authority of either House, but to limit the protection accorded to all other broadcasters to that of qualified privilege.
105. As a number of legal uncertainties seem to exist the House might well consider the desirability of passing a special Act if an affirmative decision were taken with regard to the broadcasting of its proceedings. Prior to the drafting of such an Act it would appear desirable that the law officers of the Crown should study the complexities and implications of this question. On the basis of the evidence available to your Committee, however, it seems that the Act might reasonably include the following provisions:
(a) The extension of the protection of absolute privilege to Members of Parliament and Senators when speeches delivered in the Chamber or in a committee are transmitted by means of radio and television.
(b) The protection of the broadcasters of parliamentary proceedings by absolute privilege if they are employed by Parliament at times when they are discharging their duties under the authority of Parliament.
(c) The protection of other broadcasters of parliamentary proceedings by qualified privilege, thus placing them on the same footing as the press.
(d) The protection by absolute privilege of those involved in the simultaneous interpretation of parliamentary proceedings in either House or in a committee.
First Report of the Joinnt Committee on the Publication of Proceedings in Parliament, HL26 and HC 48, 3 December, 1969.
(e) The extension of the protection of absolute privilege to witnesses giving evidence before a parliamentary committee when this evidence is broadcast.
(f) The protection by absolute privilege of all parliamentary employees who might in any way be involved in the broadcasting of parliamentary proceedings when acting under the direct instructions of either House of Parliament or their committees.
106. In drafting such legislation regard should be taken of the statutory authority of the Canadian Radio-Television Commission in respect of all broadcasting in Canada. Your Committee is aware that broadcasters have a statutory obligation to maintain copies of all broadcasts, audio and visual, for a fixed period of time. It occurs to your Committee that in the event of complaints by Members concerning the broadcasting of parliamentary proceedings it would be essential to establish a machinery for obtaining copies of the audio or visual tapes concerned. In view of the statutory authority of the Canadian Radio-Television Commission it would appear that this is the body with which direct communication should be maintained for the purpose of obtaining tapes of the broadcasts complained of. Your Committee envisages a process whereby a Member would formally complain to Mr. Speaker who would request the Canadian Radio-Television Commission to obtain a certified copy of the tapes concerned which could then be examined to establish whether or not there was a prima facie case of privilege.
107. One further point which might be noted at this stage of your Committee's report concerns the rights of witnesses appearing before committees. The United States Legislative Reorganization Act 1970 allows all witnesses the right to request that their evidence should not be broadcast. This appears to be fair and your Committee feels that this right might commend itself to the House if broadcasting were to be introduced.
CONSULTATION WITH THE SENATE 108. Being a Committee of the House, your Committee's order of reference limits it to considering the question of broadcasting only as it affects the House. However, in the view of your Committee no far-reaching decision should be made without consultation with the other House. Both Houses share the same building, and as the introduction of broadcasting would involve staff, equipment, installation, the use of radio and television channels and possible structural alterations to the building, it would be advisable to seek the views of the other place and, if they also favoured the cost and technical study recommended below, co-ordinate future planning.
109. Some witnesses before your Committee expressed the view that the Senate should be included with the House in any coverage which might be introduced and that the operation should be owned and controlled by Parlianient. It is interesting to note that in Australia the proceedings of both the Senate and the House of Representatives are continuously broadcast over a special radio channel and that control is vested in a joint committee of both Houses in terms of the Parliamentary Proceedings Broadcasting Act of 1946.
110. Having regard to the substantial capital costs which would be involved in any permanent installation, the House would be well advised to consult the Senate prior to the planning stage and to make provision for any future cooperaation which might be desirable. Consultation is of particular importance if needless duplication of costs and services is to be avoided.
111. If the House decides to take an affirmative decision in principle with regard to the broadcasting of its proceedings your Committee believes that a message should be sent to the Senate without delay, officially informing the other House of the decision and proposing joint consultation with regard to future planning.
Cost AND TECHNICAL STUDY 112. It will be apparent from the preceding paragraphs that while your Committee favours parliamentary broadcasting in principle it is not ready to commit itself unreservedly without further study of the costs and technical problems involved. Your Committee believes, therefore, that a cost and technical study should be undertaken to examine the feasibility of broadcasting the proceedings of the House and its committees by radio and television having regard to the nature of the Parliament Buildings.
113. Such a study should take every aspect of parliamentary broadcasting into account, including the nature of the equipment required, the housing and wiring for that equipment, the structural alterations required to the building, the lighting and air conditioning requirements in the Chamber and in committee rooms, the