Is it illegal to name and shame rioters online?

Few citizen publishers know the rules involving media and the law, or that they are subject to them. What's more, these rules can be easily lost in a post-riot rush to justice.

Riots and due process. It is understandably hard for many people to put those two thoughts together at the same time.

The hockey rioters in Vancouver certainly didn't offer much in the way of consideration to those they injured or whose property they destroyed. On the surface, it seems unfair somehow for society to offer them any consideration in return.

Offering legal consideration, however, is what marks us as a civilized society. Even where the evidence is overwhelming, we don't rush to judgment. We take our time.

We make sure we have as much of the evidence as possible before charges are laid and we give the accused every chance to get legal representation.

We allow the prosecution's case to be tested in court, and the defence position to be developed and put forward under a system of rules that foster fairness. Even then, the judge or jury are not allowed to convict unless there's proof beyond a reasonable doubt that the precise crime someone is charged with is the one on which there can be a finding of guilt.

Only then do we hand out consequences, in the form of a sentence. And sentencing principles are carefully brought to bear, so the punishment fits the crime.

When young people (between 12 and 17) are charged with a crime, Parliament has insisted that no one publish any information that could identify them, their young victims or witnesses, on the basis that reputations shouldn't be tarred forever by public knowledge of their involvement in criminal activity in their formative years.

Journalists working in the traditional media are trained to take all this into account in preparing their stories for public consumption.

In the social media, where everyone is a publisher, the rules can break down.

From my perspective, few citizen publishers know the rules involving media and the law, or that they are subject to them. What's more, it seems that the rationale behind these rules can be easily lost in a post-riot rush to justice.

Outing rioters

In the aftermath of the recent riots in Vancouver, a number of websites and posts have devoted themselves to identifying the rioters.

Social media to the rescue? A Vancouverite takes pictures of the post-rioting damage following the Stanley Cup loss on June 15, 2011. (Geoff Howe/Canadian Press) ((Geoff Howe/Canadian Press))

The objectives seem clear enough: public shaming, encouraging apologies and facilitating charges. However, there are laws that apply to these posts.

Clearly, encouraging  vigilante justice can be criminal. But there are other concerns as well.

For example, posting a picture or video on a site dedicated to outing "criminals" may be branding those shown as criminals, which may not turn out to be the case.

Defamation laws protect a person's reputation, but they also permit the publication of facts that can be proven true, as well as opinions based on provable facts.

Posting that someone was a rioter, or encouraged the rioters, is defensible if the audio-visual evidence supports that.

In addition, concluding that a depicted act is deplorable or shameful is protected comment on a matter of public interest.

The law protects responsible communication on matters of public interest, where bloggers can demonstrate that they were diligent in trying to verify their allegations before publication, even where the facts they do publish turn out to be untrue.

On the other hand, labelling someone as a "criminal" could require proof close to the criminal standard of "beyond a reasonable doubt" if a defamation lawsuit were launched.

Young people

Identifying and showing young people at these riots is perfectly within the law — until they are charged with an offence under the Youth Criminal Justice Act.

At that point, publications have to remove the link between the charges and the identifiable young person involved, and trust that earlier posts still online don't make that link plain.

(There are some exceptions: you can publish the identity of a young accused with the permission of a judge; or the identity of a young victim or witness with the consent of their parents. Anyone 18 and over can consent themselves to being identified.)

The fact that the law permits bloggers to help the police identify rioters is beneficial. It discourages potential rioters from believing that they're anonymous and can get away with anti-social behaviour in future.

It also helps us find and punish the right people.

This works as long as we remind ourselves that we are facilitating justice, not working on substitute remedies without the safeguards that are built into our current system to protect innocents caught up in controversial events.

As a society we should withhold judgment, not only where the circumstances are unclear, but where the pictures seem clear but the whole story has yet to come out.

It's easy to get caught up in the frenzy of getting the bad guys.

But we shouldn't forget that we're not only defending ourselves and our property against the actions of particular people, we're defending our civilized democracy, which works because of institutions like the justice system that, by and large, keep us peaceful and secure.