by Daniel Shap
The Legal Group for the Internet in Canada (LoGIC), 1994
Republished with permission
Note: This article was written in 1994, when computer bulletin boards were the most popular method of electronic information exhange. The principles discussed by the author apply to the Internet, nonetheless. The version appearing here has been condensed, with the author's approval. It reflects the opinion of the author at the time it was written and does not necessarily reflect his current opinion or the opinion of any of his past or present employers.
Disclaimer: This article is necessarily of a general nature and cannot be regarded as legal advice. Please consult with authorized counsel to determine the possible effects of matters contained in this article in specific situations.
Introduction [1]
In 1991, Prodigy Information Services Corporation ("Prodigy"), the largest,
fully-commercialized personal computer network in the world at that time, was criticized by the B'nai B'rith Anti-Defamation League for allowing its users to post allegedly anti-semitic remarks to one of its computerized, public bulletin boards. In response to the criticism, Prodigy re-iterated its policy of not carrying communications "grossly repugnant to community standards", but stressed that it would not censor discussions on controversial subjects. [2] However, in January 1993, Prodigy chose to cancel one of its electronic forums, called "Frank Discussion," when the messages posted to it allegedly degenerated into explicit descriptions of sexual acts and open sexual solicitations. [3]
The attempts by Prodigy to regulate the content of its users' messages raises important questions about freedom of expression in the electronic age. Computerized information services worldwide are struggling to come to terms with their status under a variety of regional, legislative provisions. While the world may becoming a global village, many of these computerized information services, for whom international boundaries are largely transparent, still face the daunting task of navigating a labyrinth of regional laws which purport to govern the nature of information and the manner in which it may be displayed, possessed and transmitted. Computer bulletin boards are amongst the fastest-growing segment of the electronic information sector. Considered by many to be the vanguard of the computerized information services industry, they offer a wealth of interactive and communicative experiences for their users. By linking individual computers together via modem, computer bulletin boards can provide their members with such novel facilities as electronic mail, interactive games, home shopping, on-line magazines and topical forums. The emergence of this new media, however, has given rise to a plethora of legal questions concerning the rights and responsibilities of the operators and the users alike. [4] What types of messages may be posted? Are users prohibited from posting slanderous, hateful or obscene messages? Are image and audio files subject to the same rules as those which purport to govern printed messages? Are owners liable for the actions of their users? Can owners regulate the content of a user's messages or transmissions?
Many of these questions, new as they may be, have already been the subject of analysis in several American legal papers. [5] Understandably, most of these papers have tended to examine the matter from the perspective of the First Amendment of the United States Constitution. In this paper, I will examine these questions in the context of Canadian anti-hate laws. Specifically, I will discuss the application of Canadian legislative provisions which seek to regulate the dissemination of hate and hateful messages to computerized bulletin board services. I will also examine the related problem in inter-connectedness of computer networks, which often serves to free users of their jurisdictional constraints and, as a result, tends to erode the sovereignty of the legislator.
In order to conduct a meaningful discussion of the practical and legal considerations of attempting to regulate the dissemination of hate propaganda through the electronic media, it is first necessary to review the basic physical properties of various categories of computerized bulletin boards services.
The nature and extent of computer bulletin boards in Canada
Whenever two computers are connected in such a manner as to enable them to share information, they can be said to be "networked." A joining of computers in this manner constitutes a "network." Such a connection may be permanent or intermittent.
Computer bulletin boards are a type of network since they require the joining of two or more computers for the purposes of sharing information. Generally, bulletin boards are comprised of a central "host" computer to which all the users connect their own personal computers. [6] Depending on the physical properties of the "host" computer, users may either connect to it simultaneously, or else they must connect to it one at a time. If the "host" computer is capable of maintaining simultaneous connections, then it is responsible for coordinating the exchange of information amongst the various users. If the "host" computer does not support simultaneous connections then it acts as the storage site for the messages of the individual users, and forwards them to the intended recipients whenever they chose to connect. The "host" computer can also store information for the benefit of its users without the need to forward it to any particular user. In this way, the "host" computer can act as a repository of information which can later be retrieved by the other users at their leisure.
This simple method of organizing computer connections provides a flexible and powerful means of communication. It can be manipulated to provide an astonishing array of features to the members of the bulletin board. Indeed, the choice of activities is so potentially varied that the very name, "bulletin board," is a misnomer for all but the most primitive of such networks.
Large, commercial boards like Prodigy, Compuserve and America-Online tend to offer a wider assortment of features and activities than do the smaller hobbyist boards. Compuserve, for example, offers electronic shopping and banking as well as customer support forums for most of the major hardware and software manufacturers in the United States. The large boards also tend to have gateways to other computer networks which allow their users to branch out and participate in other specialized areas.
The Internet is the single largest computer network in the world. The Internet is based on a communications technology which permits the interconnection of many disparate physical networks. It connects a vast number of independent networks, including most major university, corporate and government networks, allowing them to function as a coordinated unit. [14]
Many of the same facilities which are available to the users of the hobbyist bulletin boards and the larger commercial networks are also available on the Internet. [16] An important distinction exists, however, between the Internet and the other computer networks in that the Internet is a completely decentralized network with no central "host" computer. Consequently, no single individual or corporation owns or operates the Internet. Instead, it consists of a loose affiliation of individual networks. A corollary of this point is that there is no way in which to acquire a "membership" to the Internet. One need only possess membership in a network which is affiliated with the Internet in order to reap the benefits of Internet usage. It follows from this that there exists no direct membership fee or user contract which governs access to the Internet, except for the fee or contract which may have been arranged with the owner and operator of the sub-net.
Most of the large, commercial bulletin boards, and even some of the smaller, hobbyist boards have begun to establish connections to the Internet. This interconnection of networks serves to blur the distinction between the operators and the services which they provide. For example, if a Compuserve member sends electronic mail to a private network via the Internet, then at least three mailing services have been employed: Compuserve's mailer, an Internet mailer and the recipient's mailer.
The wide choice of computerized bulletin boards and the ever increasing inter-connectedness of the various systems is responsible, in large part, for their growing popularity. Another reason is the opportunity to discuss just about any subject - even sensitive ones - with relative anonymity whenever one so desires. The subject matter of computer bulletin boards is tailored for all interests, from the mundane to the licentious. Hobbyists' boards tend to offer a more limited range of discussions although, occasionally, they compensate for this by specializing in a particular topic. [19] The larger commercial enterprises tend to offer a greater variety of forums for discussion, but may be more likely to shy away from certain controversial or unusual topics. [20] On the Internet, forums for discussion may arise in a number of ways, most of which are disembodied from any one central computer or arbitor. The topic of discussion may fall outside the range of interest of the vast majority of sub-nets which comprise the larger Internet, but the topic may, nevertheless, be called into existence and remain, floating about in the disembodied space that is the Internet, for all to access, but for no one person or group in particular to control. [21]
This raises the important question of how Canadian society can expect to regulate the flow of information and communication in the years ahead. How does the Canadian legal framework apply to the reality of computer communications, and if Canadian society, as embodied in the federal and provincial legislators, deems certain forms of expression to be harmful and undesirable, how can we, as a society, expect to regulate the transmission of those expressions? Specifically, can and should Canadian society seek to prevent the dissemination of hate propaganda in today's electronic media?
The problem of hate crime in the electronic media
Hateful statements are a product of human nature and interaction. They can usually be found wherever people choose to meet and interact. In other words, hateful statements tend to follow human society wherever it goes. We are not purged of our ability to make hateful statements simply because we choose to communicate via a new medium. In R. v. Keegstra [22] [hereinafter Keegstra] the Supreme Court of Canada, referring generally to Canada's hate propaganda laws wrote:
"...the harm which the government seeks to prevent is not restricted to certain mediums and/or locations. To attempt to distinguish between various forms and fora would therefore be incongruent with Parliament's legitimate objective."
Hate propaganda has appeared in Canadian society in all forms of media. In the past, printed hate material has been seized by Canadian border officials. In 1991, complaints were filed with the Canadian Human Rights Commission ("CHRC") concerning a telephone "hate-line" which contained pre-recorded hate messages. [23] On occassion, complaints are filed with the Canadian Radio-television and Telecommunications Commission ("CRTC") against broadcast licensees who have made hateful remarks on the air. [24]
The Prodigy example, cited in the introduction to this paper, demonstrates that computerized bulletin boards are equally susceptible to being used as a medium for transmitting racist and possibly hateful messages. In fact, some computer bulletin boards have been established solely for that purpose. For example, the Associated Press [25] reported on February 1, 1994 that a year-old computer network had become the communications backbone of Germany's Nazi scene, where users where sharing idea on how to rid the country of foreigners, co-ordinate illegal rallies and swap bomb-making receipes.
The Internet is another example of a computer network being used to disseminate racist, possible hateful remarks and messages. Reuters [26] news wire service reported on April 11, 1994, that large quantities of neo-Nazi literature denying the Holocaust had ever happened had been filed into the Internet. Several other forums in the Internet are constantly being used to transmit messages which deny the occurance of the Holocaust. An Internet newsgroup called alt.revisionist contains a never-ending debate between Holocaust deniers and their opponents. A computer, known to many as banished.com, which is physically located in the United States, but is attached to the Internet, provides a "service" whereby any user can e-mail it a message and the computer will respond by mailing back documents and images purporting to prove that the Holocaust never happened. Users who do not care to wait for the e-mail and who have full Internet access may simply attach to the computer by themselves and peruse its contents.
As the information age progresses, Canadians increasingly perform more of their daily activities, including work, education, commerce and entertainment, through the electronic media. At a time when an ever-increasing number of transactions are occurring "over the wire," it is important to understand how the Canadian legal system applies to these transactions and how the Canadian government can best protect the interests of its constituents in this new and ephemeral world.
Freedom of expression in Canada
All laws in Canada, including those intended to abridge civil liberties, are subject to the distribution of legislative powers between the Federal Parliament and the Provincial Legislatures as set out in sections 91 and 92 of the Constitution Act 1982. Restrictions on the freedom of expression are distributed between the two levels of government based on the activity in which the expression is limited. For example, advertising in a federally-regulated medium, such as radio or television, is generally considered to fall within the scope of federal jurisdiction [27]; but other commercial advertising generally falls within Provincial jurisdiction under the rubric of the sale of goods and services. [28] The matter is further complicated by the fact that prohibitions against certain types of expression could be enacted by the federal Parliament as criminal law. [29]
Section 2(b) of the Canadian Charter of Rights and Freedoms [hereinafter Charter] [30] guarantees everyone the fundamental freedoms of "...thought, belief, opinion and expression, including freedom of the press and other media communication." The freedoms guaranteed in s. 2(b) are not absolute freedoms. They have been limited by various legislative provisions which prevent the dissemination of several types of expressions, including, but not limited to, slander, obscenity and expressions which promote hatred in Canada. In R. v. Butler [1992] 1 S.C.R. 452 [hereinafter Butler] Sopinka J. wrote:
"This Court has thus recognized that the harm caused by the proliferation of materials which seriously offend the values fundamental to our society is a substantial concern which justifies restricting the otherwise full exercise of the freedom of expression."
Any law which seeks to limit the freedom of expression is subject to the limitation clause set out in s. 1 of the Charter. Such a law will be valid under s. 1 if it comes within the "limits prescribed by law as can be demonstrably justified in a free and democratic society." The process of judicial review under the Charter is two staged: first it must be determined whether the law has the effect of restricting a guaranteed right; and secondly, does the law satisfy the standards of justification under s. 1. [31]
The provisions which seek to prevent expressions which promote hatred in Canada can be divided into two classes. Within one class can be found the federal and provincial legislation designed to prevent the promotion of hate propaganda. This includes the Criminal Code, [32] the Canadian Human Rights Act, [33] the Saskatchewan Human Rights Code [34] , the Manitoba Human Rights Act [35] , and the Broadcasting Act [36] . The second class includes legislative enactments which prohibit the publishing or displaying of discriminatory notices, signs, symbols, emblems or other representations indicating discrimination or an intention to discriminate. For example, the Alberta Individual's Rights Protection Act [37] and the Ontario Human Rights Code [38] .
Daniel Shap is a lawyer for the law firm Osler, Hoskin & Harcourt. This article reflects the opinion of the author at the time it was written and does not necessarily reflect his current opinion or the opinion of any of his past or present employers.
