Daniel Shap, 1994
The Legal Group for the Internet in Canada (LoGIC)
In 1991, Prodigy Information Services Corporation ("Prodigy"), the largest, fully-commercialized personal computer network in the world, 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 amongt 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.
II. 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.
Since the "host" computer can store and forward the messages of one user to another, a sort of mail function can be established. [7] In addition, individual users have the option of leaving their messages for all other users to read, without actually forwarding the message to any one particular user. In other words, the user "posts" his message to be read by the other users (hence the name "bulletin board.") Online vendors can make use of these posting facilities to display messages which advertise or display their wares. They can also receive orders for their products via the electronic mail system. If the purchaser includes his credit card number in the electronic mail message then the entire sales transaction may be concluded within the confines of this "electronic world."
On those systems which allow for simultaneous connections, users can exchange real-time [8] typed messages, thereby simulating a telephone exchange. Since two or more users can participate in the typed "conversation" a sort of "conference call" can be established to allow for "group discussions." Real-time "conversations," combined with some simple (and, occasionally, very advanced) gaming software, make it possible to play real-time, interactive games with persons who are geographically dispersed. On a few, very advanced, highly sophisticated networks, users can even record and exchange voice mail.
To access a computer bulletin board one must have a personal computer, a communications software package, [9] a telephone line and a modem. [10] The communication software dials the phone number of the bulletin board and establishes a link to the "host" computer. The "host" computer may range in size from another personal computer equipped with a modem to a mini or mainframe computer equipped with sophisticated telecommunications equipment. In each case, the "host" computer must run special "host" software designed to manage the interconnection and process the user's messages. While the "host" software is designed to run with minimal human intervention, most bulletin boards have at least one system operator, or "sysop", to help manage the "host" computer. The sysop may moderate discussion, provide on-line help, or contract with information providers such as advertisers or wire services. [11]
Once connected to the bulletin board, users are typically required to enter a name and password. The manner in which one acquires membership varies from board to board. Some bulletin boards are open to all members of the public and only require names and a passwords in order to assist in the identification of each user. These boards are typically small operations run by computer hobbyists. They charge no membership fees and stipulate no contractual agreements. Any user who is willing to dial the board's telephone number will be granted access to the board. This is true whether the user is calling from out-of-province or even internationally, provided that the users agrees to pays for all long-distance phone charges.
Some hobbyist boards are more restrictive in nature and will only grant access to a new user after confirming the candidate's identity. This can be accomplished by calling the candidate at a voice telephone number listed under the candidate's name in the "white pages" or by performing a credit check to verify the candidate's existence. The new user is then granted restricted access to the board and must win over the sysop's friendship and trust in order to gain access to the upper levels.
It is important to note that not all hobbyist boards are free of charge. Many charge their members a nominal subscription fee which is used to help support the cost of the sysop's computer equipment and telephone lines. Most hobbyist bulletin boards also require their members to abide by a code of conduct and some even formalize this agreement into a written contract.
The other type of computer bulletin boards are the large, commercial networks such as Prodigy, Compuserve and America-Online. These boards are often owned and operated by large corporations [12] and have thousands and, sometimes, millions of subscribers in Canada and the United States. For the most part, these boards reside in the United States and have branched out to include Canada and parts of Europe. The usage fee varies amongst each of the providers, but they all require their users to enter into a contractual agreement which governs fees and sets out a code of conduct. [13]
The large, commercial boards 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 third type of computer network, called 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]
The Internet began in the mid-1970's when the U.S. Defense Advanced Research Projects Agency ("DARPA") began to explore the viability of inter-networking technologies. Over time, the availability of research funding and low-cost implementations drew the attention of many university research facilities and encouraged the adoption of this new communications standards. By 1985, 90% of the American university computer science departments were interconnected via the Internet. The following year, realizing that network communication would soon be a crucial part of scientific research, the National Science Foundation ("NSF") in the United States took an active role in expanding the Internet to reach as many scientists as possible. [15] The Internet has grown to span hundreds of individual networks located throughout the United States, Canada and Europe. It connects well over 20,000 computers at universities, corporate and government institutions, and includes well over a million individual computers.
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 recipients mailer.
The popularity of computer bulletin boards, both hobbyist and otherwise, has soared in the past few years. The relative simplicity and low cost of building a computer bulletin board has led to a proliferation of such hobbyist ventures throughout Canada and the United States. [17] At present, it is estimated that there are over 45,000 public dial-up bulletin boards in the United States alone, to which an estimated 12.2 million callers dial into on a regular basis. [18] Canadian residents can dial-up local Canadian boards or, if they are willing to pay the long-distance toll, they can direct their computers to access boards all over Canada, the United states and Europe. Moreover, with the advent of the large, commercial networks such as Prodigy, Canadian computer users can participate in world-wide computer activities without the need to ever place a long-distance call.
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 be 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?
III. 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 propoganda 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-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 report stated that the Thule Network, guarded by passwords and loyalty tests, consisted of at least a dozen bulletin boards in three western German states and was used by Nazis to avoid detection by the police. Important information, such as the contact names for a rally, could be disseminated in a few hours and without leaving a paper trail. It is important to note, that such bulletin boards take great pains to try and keep their operations from attracting legal sanctions. In network discussions, for example, rascist statements are permitted, but the sysops immediatly criticize any user who promotes violence against members of a particular race. They often describe their systems as a network "of non-conformists" who oppose the "spirit of the times" and they will post slogans such as "Give Peace a Chance" and disclaimers which deny any intention to violate the law.
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.
While there have been no reported Canadian legal cases concerning hateful messages appearing on computer bulletin boards, in the United States the problem was considered to be potentially serious enough to prompt the National Telecommunications and Information Administration ("NTIA"), the executive branch agency that develops telecom policies, to perform a study on how telecommunications affect crimes of hate and violent acts against ethnic, religious, racial and sexually-oriented minorities. The NTIA released an official "Notice of Inquiry; Request for Comments" into the Federal Register soliciting input and commentary from all members of society as to the likely costs and benefits associated with attempts to regulate the electronic bulletin board community.
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.
IV. 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 ruberic 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] , the Ontario Human Rights Code [38] .
V. APPLICATION OF CANADIAN HATE LAWS TO THE ELECTRONIC MEDIA
The Webster's New World Dictionary [39] defines the word "medium" as: medium: n. [pl. MEDIUMS, MEDIA]...3. any means, agency or instrumentality: as radio is a medium of communication...
The traditional mediums of communication include voice, gesture and print. With the advent of the information age, communication mediums have expanded to include electronic means of communication including telegraph, telephone, telex, radio and television broadcasting and computer communications.
Most of the laws in Canada which seek to restrict the dissemination of hate propaganda specifically address electronic forms of media. For example, in defining the term "communicating" s. 319(7) [40] of the Criminal Code specifically includes communicating by telephone, broadcasting or other audible or visible means. Similarly, s. 13(1) of the Canadian Human Rights Act specifically prohibits the dissemination of hate messages which are communicated "telephonically", while s. 13(2) clearly provides an exception to subsection (1) for matters communicated "by means of the facilities of a broadcasting undertaking."
While it is encouraging to note that these relatively recent additions to the Canadian law refer to electronic forms of communication, the unique nature of electronic media makes it extremely difficult to discern how these new provisions are to be applied. For example, s. 319(1) of the Criminal Code prohibits a person from communicating statements inciting hatred "in any public place" where such incitement is likely to lead to a breach of the peace. As was noted above, "communicating" includes communicating by telephone or broadcasting or any other audible or visible means. This raises the important question of what it means to communicate statements by telephone, in a public place, which incite hatred where such incitement is likely to lead to a breach of the peace. If a person records a series of hateful messages in his voice-mail box, which are intended to incite hatred and which are likely to lead to a breach of the peace, and he invites others to call in to his voice-mail and listen to the pre-recorded messages [41] , does the person's telephone become a public place for the purposes of s. 319 (1)? What if instead of recording the statements in his voice-mail, the person types the statements on a computer bulletin board which is open and accessible to the public at large? Does the bulletin board become a public place for the purposes of the law?
A. APPLICATION OF THE CRIMINAL CODE
Three provisions in the Criminal Code, sections 318, 319 and 320 seek to curb to promotion of hate propaganda in Canada.
SECTION 318
Section 318 [42] of the Criminal Code prohibits advocating or promoting genocide. To date, s. 318 has not been used as the basis for a conviction in a Canadian court. Consequently, there has been no opportunity to assess the constitutional validity of this section under the Charter. As with all of the hate propaganda provisions in the Criminal Code, no proceeding for an offence under s. 318 may be instituted without the consent of the Attorney General.
Section 318 of the Criminal Code does not distinguish between the medium of communication used to advocate or promote genocide, neither does it specifically exclude private conversations. In R. v. Rioux, [1969] S.C.R. 599, Hall J., referring to the fact that obscenity law does not extend to include a private viewing, wrote concerning s. 163(2) (then s. 150(2)): "[Translation] If exposing 'to public view' is mentioned in s-s. 92)(a), it is because the legislator intended that this and, not a private showing, should constitute a crime."
Presumably, then, s. 318 could be applied to all modes of communication, including electronic, whenever and wherever a person advocates or promotes genocide.
It is difficult to know what is meant in s. 318 by the words "advocate" and "promote," since these terms are used infrequently throughout the Criminal Code. [43] In the Keegstra decision, however, the Supreme Court of Canada examined the phrase "promotes hatred" as set out in s. 319(2) and concluded that the word "promote" in that provision implies an active and involved role on the part of the accused. Dickson C.J., writing for the majority, said: "Given the purpose of the provision to criminalize the spreading of hatred in society, I find that the word "promotes" indicates active support or instigation. Indeed the French version of the offence uses the verb "fomenter", which in English means to foment or stir up. In "promotes" we thus have a word that indicates more than simple encouragement or advancement. The hate-monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group."
It may, therefore, be reasonable to conclude that the courts would apply a similar line of reasoning if called upon to interpret the phrase "advocates and promotes genocide" in s. 318. If that were the case, and the courts were to interpret s. 318 in a manner similar to s.319(2) then s. 318 would prevent individuals or groups from actively encouraging genocide. Consequently, s. 318 would not likely encompass third party liability. That is to say, if the law were to be interpreted as targeting the active encouragement of genocide, it would likely not apply to a third party who passively allows such activities to take place on his premises or via his facilities. As a result, computer bulletin board operators who ignore or are unaware of such activities on their boards would likely be freed of any liability. .
SECTION 319(1)
Section 319(1) [44] of the Criminal Code prohibits the communication of statements made in any public place which incite hatred where such incitements are likely to lead to a breach of the peace. This section has never been used as the basis of a conviction in Canada and there has, therefore, been no opportunity to assess its constitutional validity under the Charter. While s. 319 was reviewed by the Supreme Court of Canada in the Keegstra case, the Court focused mostly on subsection (2), upholding its constitutional validity, but casting little light on the scope or application of subsection (1).
On reading s. 319(1), one is immediately struck by the words "in a public place." On its face, the provision would appear to prohibit the communication of all proscribed statements in a public area, regardless of the context in which those statements are made. In other words, even when the statements are made within the context of a private conversation, if that conversation occurs in a public place, then the offence is triggered. Support for this interpretation can be found in the Keegstra decision. Dickson C.J. writing for the majority, said in reference to subsection (2):
"that the legislation excludes private conversation, rather than including communications made in a public forum, suggests that the expression of hatred in a place accessible to the public is not sufficient to activate the legislation...Section 319(1) covers statements communicated "in a public place", suggesting that a wider scope of prohibition was intended where the danger occasioned by the statements was of an immediate nature, while the wording of s. 319(2) indicates that private conversations taking place in public areas are not prohibited." Although the Keegstra decision focused mostly on s. 319(2), it is useful to consult the decision when attempting to clarify the distinction between "inciting hatred," as per subsection (1), and "wilfully promoting hatred" as set out in subsection (2). The Court in Keegstra examined the wording in s. 319(2) and concluded that the word "wilfully," as defined in R. v. Buzzanga and Durocher, [45] [hereinafter Buzzanga and Durocher] connotes an element of intent into the section which is absent in subsection (1). Dickson C.J. wrote:
"The interpretation of "wilfully" in Buzzanga has great bearing upon the extent to which s. 319(2) limits the freedom of expression. This mental element, requiring more than merely negligence or recklessness as to result, significantly restricts the reach of the provision, and thereby reduces the scope of the targeted expression. Such a reduced scope is recognized and applauded...this stringent standard of mens rea is an invaluable means of limiting the incursion of s. 319(2) into the realm of acceptable (though perhaps offensive and controversial) expression. It is clear that the word "wilfully" imports a difficult burden for the Crown to meet and, in so doing, serves to minimize the impairment of freedom of expression."
In other words, in order to transgress s. 319(1), one need not have intentionally promoted hatred. Neither must the communicating statements have been intended for a public audience. All that is required is that the accused actually succeeded in inciting hatred which was "likely to lead to a breach of the peace." As Martin J. A. wrote in Buzzanga and Durocher: "The statements, the communication of which are proscribed by [s. 319(2)], are not confined to statements communicated in a public place in circumstances likely to lead to a breach of the peace and they, consequently, do not pose such an immediate threat to public order as those falling under [s.319(1)]; it is reasonable to assume, therefore, that Parliament intended to limit the offence under [s.319(2)] to the intentional promotion of hatred." [Emphasis added]
As was mentioned above, s. 319(1) leaves some question as to what can be defined as a public place. Although a public place is defined in subsection (7) to include any place to which the public have access as a right or by invitation, express or implied, it is far from clear whether this can be interpreted to include a virtual environment such as a publicly accessible computer bulletin board.
Generally speaking, most computer bulletin boards are privately owned. The vast majority of such systems are, as was previously described above, based a single, centralized "host" which connects various users and which is owned and operated by a private person. Moreover, most boards require that their members obtain usernames and passwords, pay a subscription fee, and enter into a contractual agreement governing the nature of their obligations. This is invariably true whenever one is speaking of the larger, commercial enterprises such as Prodigy or Compuserve. According to one source, [46] 90% of electronic bulletin boards are private, run by universities, companies or government agencies. Can privately owned boards such as these be considered "public places" for the purposes of s. 319(1)?
The jurisprudence concerning the notion of a "public place," as defined in various provisions of the Criminal Code, [47] often concerns acts of indecent exposure and solicitations for the purposes of prostitution. Generally speaking, these cases have decided that where a person is located on or in his private property, but in view of the public, that person will be considered to be in a public place for the purposes of the offence. [48]
In R.. v. Lavoie, [49] [hereinafter Lavoie] the New Brunswick Court of Appeal decided that where private property, defined in s. 150 of the Criminal Code [50] in a manner identical to s. 319, was frequented by members of the public with no objection by the owner, it was transformed into a public place.
In Tegstrom v. The Queen, [51] [hereinafter Tegstrom] the Court held that to constitute a public place it is not necessary that all segments of the public have a right of access thereto and accordingly a beverage bar, from which a portion of the public may be excluded by law or by choice, is a public place for the purposes of the offence. On the basis of the decision in Lavoie, it could be argued that if a sysop opens up his board to all members of the public, without implementing any subscription fees, user levels, or contracts, then board becomes public property for the purposes of the offence in s. 319(1). Adding to this the decision in Tegstrom, it may be possible to argue that even where a sysop implements user levels or a user fee, if all segments of the public would normally have a right of access to the board, it can be considered to be a public place for the purposes of the offence.
A significant problem with all of these arguments is that the user never physically "goes into" the sysop's private property. It may be possible to argue, on the basis of the indecent exposure and solicitation cases, that even though a bulletin board user remains in his private dwelling, connected to the outside world only by means of his telephone line and his modem, once he is connected to the computer bulletin board he can be considered to be "in view" of the public and, therefore, in a public place for the purposes of the offence set out in s. 319(1).
An interesting question is whether the Internet can be considered a "public place" for the purposes of s. 319(1). As was previously discussed, the Internet is a disembodied network of physically disparate sub-networks which are connected all over the world. Access to the Internet must, therefore, always take place through a sub-net, where such sub-net is usually privately owned and operated. However, once connected to the Internet, the user is free to roam about and visit other sub-nets which permit anonymous visitors. As well, he can sample the facilities and features of the entire disembodied Internet. What would happen if a Canadian user were to post a series of messages on the Internet which wilfully promote hatred, in violation of s. 319(2). Could the user be prosecuted for the offence?
In order to better understand the implications of this question, it is necessary to examine the manner in which information may be disseminated throughout the Internet. Let us assume that the user has an account on a Canadian university computer network which has full access to the Internet. The user may convey his hateful messages in a number of different ways. Firstly, he might e-mail the same message to a large number of individuals. Secondly, he could post the messages to an Internet newsgroup so that anyone who chooses to subscribe to that group would see his comments. Finally, he could engage in a typed, real-time "conversation" with one or more individuals, frequently called a "chat."
If the user sends electronic mail then he is not necessarilty posting anything to his university's computer system. The letter is distributed from the user's computer to the computer systems of the adressees. They may be located on campus or they may be located in another country. As was previously noted, s. 319 prohibits the communicating of statements in any public place, but does not specifically exclude private conversations. Consequently, even assuming that e-mail messages could be characterized as "private communications" they would not fall outside the ambit of the provision.
If the user chooses to post his messages to an Internet newsgroup then he has two options. Firstly, if his university's network has a news-server then he can post his messages to that server and the messages will then be disseminated from that server to all of the other news-servers on the Internet. On the other hand, the user can choose to by-pass his school's news-server and make use of any one of the other news-servers on the Internet. The consequence of users possessing the power to post messages to any news-server on the Internet (and the associated ability to read news from any news-server on the Internet) is that it becomes virtually impossible to keep the user from posting or reading distastful news messages.
For example, in November 1993, the Internet became embroiled in legal controversy when Canadian government officials struggled to suppress news-server postings which violated the publication ban on testimony from the Karla Homolka manslaughter trial. The case concerns a husband and wife who were charged in the murder of two teenagers. Karla, the wife, entered into a plea bargain and was expected to testify against her husband. The nonstop media coverage led the Court to impose a ban on the publication of the details of the crime on the grounds that it would otherwise be impossible to impanel an impartial jury. [52] The ban had its desired effect against the mainstream media, [53] but postings concerning the trial began to appear on Canadian bulletin boards. Shortly thereafter, a McGill University student created an Internet newsgroup called alt.fan.karla-homolka. [54] The group was eventually banned by system managers and university officials all over Canada, but two new groups appeared from the United States: alt.pub-ban and alt.pub-ban.homolka. [55] While those newly formed groups were also banned from Canadian sites, information began to appear on the Internet teaching Canadian users how to access the American news servers and effectively by-pass the ban. Wired, a print magazine from the United States, published an account of the ban and wrote the following: "Some Net users theorized that if they cross-posted all over the Net, the Royal Canadian Mounted Police would be in the impossible position of scrambling through cyberspace plugging leaks...Other curious Canadians searched the pay-per-view news and magazine databases on Nexis and Compuserve for stories published by U.S. newspapers. Most of the banned articles were re-posted verbatim to alt.true-crime, a group overlooked by the Mounties."
Ironically, even though the print edition of Wired was banned in Canada and was pulled from store shelves, the electronic version of the article was made available on the Internet by the magazine's irate publishers (who also happen to have a computer attached to the Internet.)
This example serves to demonstrate how difficult it can be to attempt to regulate the content of messages posted to the Internet. Even if the messages posted by our hypothetical Canadian user did contravene s. 319(1), due to the fact that the Internet could be considered to be a "public place," the reality is that the legislator's will cannot be effectively executed. Moreover, it seems somewhat bizarre to attempt to enforce Canadian hate propaganda rules on the Internet. The Internet belongs to no single nation on earth [56] and the posting of an obscene or hateful message on the Internet has just as much chance of being viewed by other citizens of the globe as it has of being read by another Canadian. In fact, statistically, the chances are significantly higher that the message will be read by more non-Canadians than Canadians. Why should the government of Canada continue to attempt to regulate the freedom of expression of its citizens when they venture out into these international waters? The question is an important one because, as the Internet becomes increasingly accessible to Canadians, whether by way of hobbyist bulletin boards or commercial network providers, the scope of the average Canadian's activities extends further and further beyond the borders of Canada. For example, if I choose to connect to the Internet and engage in a real-time, typed conversation with a group of American students, which standard of freedom of expression should apply, mine or theirs? In the United States, hate propaganda crimes do not exist in the way that we know them here in Canada. The American constitution with its first amendment is a creature apart from the Canadian Charter. Should the Canadian legislator seek to protect my sensibilities and the sensibilities of my fellow Canadians from ourselves and from the world at large when on the Internet? With the advent of the Internet and global telecommunications, it becomes increasingly feasible to declare oneself to be a "citizen of the world."
SECTION 319(2) In Keegstra, the Supreme Court of Canada upheld the constitutional validity of s. 319(2) of the Criminal Code which makes it a crime to wilfully promote, other than in a private conversation, hatred against a section of the public distinguished by colour, race, religion or ethnic origin. [57]
Section 319(2) raises the question of what can be considered to be a private conversation for the purposes of electronic bulletin boards. As was described above, the users of computer bulletin boards can communicate via a number of different mechanisms, including electronic mail, bulletin postings, real-time typed "conversations" and "conference calls", and voice mail. Amongst bulletin board users, electronic mail is generally considered to be the most private form of communication. This is followed by typed "conversations" and "conference calls," while bulletin postings are usually held to be the least private means of communicating. Can users communicating via e-mail or typed "conversations" benefit from the defence of a private conversation in order to avoid prosecution under s. 319(2)?
Section 8 of the Charter guarantees everyone the right to be secure against unreasonable search and seizure. However, the rights in s. 8 of the Charter can only be said to apply where there is a reasonable expectation of privacy. In the case of R. v. Lubovac, [58] where the police had obtained a telephone number from an informer with which they were able to obtain messages which had been broadcast and recorded on the accused's paging system, the Court held that the messages were not protected by s.8 of the Charter because, given the fact that pager messages could be overheard by people on the street, there could not be, either from the subjective or objective aspect, a reasonable expectation of privacy surrounding the conversation. [59] The Court re-emphasised that:
"The right of security from unreasonable search arises only in circumstances where there is a reasonable expectation of privacy. A dwelling, an office, an automobile or a briefcase are good example. But open conversations are not protected because to expect that privacy surrounds them is not reasonable R. v. Wong (1987), 34 C.C.C. (3d) 51 at p. 63, 56 C.R. (3d) 352 (Ont. C.A.)." [60]
The fundamental question is whether one can possess a reasonable expectation of privacy when sending, receiving and storing e-mail. In the case of Regina v. Newall et al. (No. 3), [61] which dealt with the interception of private communications under Part IV.1 (now Part VI) of the Criminal Code, the British Columbia Supreme Court held that there can be no reasonable expectation of privacy when one sends a letter. The Court stated: "...when someone sends a letter to another he may hope its contents will not be revealed to a third person, yet it would be unreasonable for him as a reasonable person to expect it would not be read by others at any time. He knows or should know the recipient might voluntarily show the letter to others, or it might get misplaced and come into the hands of a third party...Unlike a letter, a telephone call or private discussion is not given to others for the purposes of transmission nor is it intended by the originator that the words be preserved for later reference." [62]
Conversely, Newfoundland district Court Judge Riche in R. v. Crane [63] wrote:
"The search and seizure of private mail is in my opinion a most serious matter. The privacy of one's mail is a most important and highly-protected element of our society. Should it then be less protected than our right to make communication with another by using the telephone? If I write a letter to someone and post it, should it be less protected than if I use the telephone for that purpose? Except for normal postal inspection of packages, should there be a right in the police to seizure and search items in the mail without prior authorization?...It is my opinion that a person's private mail should not be searched or seized without authorization, which authorization should be granted only by a person acting judicially, such as a magistrate or a judge. The search and seizure of private mail without authorization should be considered prima facie an unreasonable act."
In a computer environment, the question of a reasonable expectation of privacy for electronic mail may possess an additional confusion over that of ordinary mail because of the decision in R. v. Wong, [64] [hereinafter Wong]. In that case, the police installed a video camera to monitor a large-scale gambling house operation that had been set up in a hotel room. The Court decided that the occupants of the room could not have had a reasonable expectation of privacy because Wong had invited and accepted so many people into the room. The problem that this poses for computer networks is that they frequently allow access to a large number of people. In fact, that is one of their chief attractions. One could, therefore, argue from the decision in Wong, that if a number of people have access to one's computer, their very numbers can destroy any reasonable expectation of computer privacy.
SECTION 320
Section 320 of the Criminal Code empowers a court that is satisfied that any publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is hate propaganda to issue a warrant authorizing the seizure of that publication. This section has never been used as the basis of a conviction in a Canadian court.
Section 320 raises serious concerns about the liability of secondary publishers in Canada. The provision does not appear to differentiate between various types of publishers. It, therefore, opens the door to the investigation of every Canadian library, bookstore, film and music distributor, electronic magazine and database. [65] In his book, When Freedoms Collide, [66] Alan A. Borovoy recounts how Canadian hate laws have already provoked several questionable investigations. The Ontario attorney-general investigated Toronto libraries which were carrying the pro-Zionist novel The Haj, because in the opinions of an Arab organization, the book slurred and maligned Arabs. [67] Similarly, Canadian Customs held up the admission of a film sympathetic to South-African leader, Nelson Mandela and federal officials investigated the anti-Communist Hollywood film Red Dawn. [68]
Most computers systems are capable of storing a large number of written documents and images. In fact, the primary purpose of most computer bulletin boards is to exchange written messages and publications. Section 320 does not specify what is meant by the term "any publication" and so it must be assumed that all computer correspondence are potentially targetable under this provision. Moreover, since s. 320 speaks of publications which are "kept for sale or distribution," computer bulletin boards, with their tremendous ability to distribute information, would seem to be ideal candidates for the application of this provision.
One question which is raised by s. 320 is what is meant by the term "premises." In order for the judge to issue the warrant, he must be satisfied that there exists "any publication, copies of which are kept for sale or distribution in the premises." [emphasis added] Can the central "host" of a bulletin board be considered a premises for the purposes of this section? Even if a computer can be considered to be a "premises", what would happen if the "host" computer resided in another country, such as the United States. As was previously discussed, all of the large, commercial networks currently reside in the United states, and merely branch of into Canada and parts of Europe. Moreover, what if information were not actually stored on the Canadian central "host" computer, but rather were merely pointed to by the "host." For example, if a Canadian bulletin board did not actually contain hate propaganda publications, but pointed [69] to an American site which actually contained the articles?
This raises the issue of data havens. In an interconnected world, persons seeking to avoid restrictions on their civil liberties can simply move their information to a jurisdiction which will accommodate them. This allegedly occurred after the Canadian Human Rights Commission successfully shut down the operations a Canadian telephone messaging system which was designed to play pre-recorded hate messages. [70] Following the trial, the accused merely moved its operations to the United States and established a 1-800 number for its Canadian callers. The end result of attempting to curtail civil liberties in an interconnected world is that various international jurisdictions will assume the role of data havens. One solution to this problem, one which has actually been enacted in the United States, is to legislate against the mere possession of the information. [71]
One example of data havens in the realm of computer bulletin boards has already been discussed in this paper. The Canadian judiciary's attempts to impose a media ban on the Karla Homolka trial have had the effect of turning the United States into a data haven for information concerning that trial. Canadian users who wanted to discuss the case, exchange information and research the story as reported in the American press, simply connect to the American networks and by-passed the ban.
Another example of the United States becoming a data haven, also previously discussed in this paper, concerns the dissemination of hate propoganda through the Internet. The banished.com computer in the United States, which serves as a repository of information which purports to prove that the Holocaust never occured, would likely come under the scrutiny of Canadian authorities if it was physically located within their jurisdiction. On the other hand, the computer has not attracted the attention of American authorities, probably due in large part to the strong support in the United States for the freedom of speech. As a result, Canadians with access to the Internet can connect to the American computer and peruse its files and information.
Other examples of computer data havens is off-shore child pornography sites. On April 15, 1994, Reuters newswire service reported [72] that British police had seized a child pornography library stored in a university computer connected to the Internet. The man being questioned by the police admitted operating the archive and publishing the material worldwide. Thousands of pornographic pictures of children were found stored on the computer. According to the report the police stated that: "There are 160 countries which access this system. Twenty million people access it, whether in Brazil or Bombay."
While the British police were tipped off to the affair by U.S. authorities who had discovered the site, it is important to note that the matter fell within the jurisdiction of the British police. Fortunately, British authorities and American authorities would appear to see eye-to-eye on the matter of child-pronography, but it raises the question of what would happen if a country refused to comply with world standards on child-pornography or held a differing view on morality. Short of cutting off access to that country, or applying political pressure, how could foreign governments prevent their constituents from accessing those sites?
In the United States, the National security Agency ("NSA") already monitors all overseas transmissions of data. Their mandate would presumably extend to include all computerized communications. Canadians must ask themselves if they really want their communications infrastructure to be converted into a massive surveillance system for the state.
Canadian must also carefully consider whether they want to institute laws which would force Canadian bulletin board and network operators to search the contents of their systems for any offending material. It is important to remember that such laws would severely impinge on the privacy of many computer users. On the other hand, this re-raises the question of whether computer network users can even claim a reasonable expectation of privacy. It is also important to point out that the sheer volume of information contained on most computer networks today makes the searching of such systems for offence materials a virtual impossibility.
Canada, however, cannot simply abandon its attempts at controlling the promulgation of hate propaganda. As a signatory to a considerable number of international conventions on human rights, Canada has an international obligation to legislatively outlaw all ideas based on hate.For example, the International Covenant on Civil and Political Rights (hereinafter Covenant) has been in force for Canada since August 19, 1976. Article 20(2) of the Covenant requires that: "20(2). any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."
Canada has also ratified the Optional Protocol to the Covenant, which permits Canadian subjects who claim to be victims of a violation of the rights guaranteed to complain to the Human Rights Committee established under article 28 of the Covenant. The mere signing of an international treaty, however, does not give it the force of law in Canada. It merely places Parliament under an obligation to incorporate the provisions of the Covenant into Canadian law. The federal government has the power to implement the Covenant domestically if the subject matter falls within its jurisdictional powers.Canada has ratified the Covenant, but it has not yet implemented it in its entirety However, section 318, 319, and 320 of the Criminal Code contain provisions sufficient to meet the requirements of article 20(2) of the Covenant.
International covenants, such as the one described above, can be used both to limit freedom of expression as well as to prohibit such limitations where they are deemed to be excessive. For example, article 19 of the Covenant provides that: "1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the rightto freedom of expression..."
In Canada, the Western Guard Party used public telephone services to transmit hate messages in violation of s. 13(1) of the Canadian Human Rights Act. The Western Guard Party argued that s. 13(1) violated article 19(2) of the Covenant. The Human Rights Committee established under article 28 of the Covenant [hereinafter Commitee] refused to hear the matter, declaring that the telephone messages were in clear violation of article 20(2) of the same Covenant. It has been argued, that a mere prima facie incompatability is insufficient grounds to dismiss the submission and that the law-applying organ must review the asserted violation of freedom of expression on the basis of the criteria established in article 19. Consequently, a party charged with a violation of a Canadian provision which prohibits the dissemination of hate propoganda, could conceivably take an action before the Committee to contest the validity of such a provision in the face of article 19 of the Covenant.
As was previously mentioned, problems also arise in this scenario because not all the countries of the world have agreed to adopt these international measures. So long as some countries withhold from accepting these international standards then the formation of data havens would appear to be inevitable.
B. APPLICATION OF THE CANADIAN HUMAN RIGHTS ACT
In Taylor and the Western Guard Party v. Canadian Human Rights Commission and the A.G. Can., [hereinafter Taylor], the Supreme Court of Canada upheld the constitutional validity of s. 13(1) of the Canadian Human Rights Act which provides that it is a discriminatory practice: "for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunications undertaking within the legislative authority of Parliament, any matter that is likely to expose a person to hatred or contempt by the reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination."
It should be noted that the Act refers to repeated communications and not just a single one. Moreover, unlike the provision in the Criminal Code, the truth is not a defence to the offence set out in s. 13(1). It is also important to note that s. 13(2) specifies that Subsection (1) does not apply in respect of any matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking. Moreover, s. 13(3) exonerates owners or operators of a telecommunication undertaking of any liability under Subsection (1) where their facilities are merely used by other persons for the transmission of the hate propaganda.
Actions taken under the Canadian Human Rights Actcan be taken in conjunction with criminal proceedings and proceedings under provincial human rights legislation. The Canadian Human Rights Act provides remedial measures which may be best complimented by the punitive measures of the Criminal Code. Unfortunately, there have been no cases concerning s. 13(1) which have been pursued simultaneously in criminal proceedings. This may be due, in part, to the difficulty of proving the commission of an offence under the Criminal Code.
Section 13(1) seems to apply directly to computer bulletin boards since a number of direct comparisons can be made between those cases involving telephone messaging services and the dissemination of hate messages on computer bulletin boards. As was previously described, all that is needed to access a computer bulletin board is a personal computer, a telephone line and a modem. Once equipped with these devices, any person can connect to a host computer and post or read electronic bulletin board messages. Similarly, anyone with a telephone and an answering machine or a voice mail-box can "post" electronic hate message which can be accessed by persons all over the world.
There are two potential problems with s. 13. Firstly, subsection (2) creates an exemption for any message which is transmitted "in whole or in part" by a broadcasting facility. Consequently, if the message were to somehow be transmitted by a broadcasting facility then the Act would not apply. The rational for this exception is that the Broadcasting Act contains its own distinct provision for dealing with hate messages. While it may seem unlikely that a telephone message would ever be transmitted by a broadcasting facility, the telephone and broadcasting industries in Canada are currently undergoing a massive convergence. To quote a recent government report on the state of convergence in Canada: "The Canadian telecommunications infrastructure is in a state of transition. New technologies are being deployed and traditional boundaries are blurring between the telephone, cable, television, broadcasting and information service industries...[this calls] into question the existing policies and the regulatory framework applicable to the telecommunications infrastructure...Those calling for a review of existing approaches often focus on the fact that it is becoming increasingly possible for telephone companies and cable television operators to provide the same or similar services..."
As the industries converge, it may become increasingly possible for the accused to play both side of the regulatory schemes. If the accused can demonstrate that the message was transmitted via a broadcasting facility and a telecommunications facility at one and the same time, it might become unclear which provision, if any, would apply.
However, the real problem associated with convergence is not which regulatory framework will apply, but whether any regulatory framework can and will apply. As the telecommunications and broadcasting industries begin to converge, the boundaries between the two mediums will begin to dissolve and Canadian residents will gain an increasing ability to broadcast directly from their homes. For example, many Canadians have heard promises of video on demand services and video-telephones in the near future. The change in the Canadian economy which is fostering those innovations is the convergence of the telecommunications and broadcasting mediums. The reason for the convergence of the two industries is a fundamental change in the underlying technology.
The transmission of information requires bandwidth and, generally speaking, the greater the amount of information to be transmitted the greater the amount bandwidth required. With the advent of high speed, mixed coaxial/fiber-optic communications networks throughout Canada, it is rapidly becoming possible to transmit huge amounts of information over a fiber-optic cable 1/4 the width of a human hair. The end result will be that a doctor will be able to transmit a live broadcast of his surgery to another doctor with the same ease that the major broadcasting networks currently broadcast a cable movie.
The implication is that a tremendous power will ultimately be placed in the hands of Canadian citizens. The inhabitants of computer bulletin boards will no longer be restricted to typing out their message on a computer console. Individuals will be able to broadcast their message using the full range of multimedia stimuli, including sound, text and moving images. For example, the CBC currently distributes its 5 p.m. and 8 p.m. daily news broadcasts to the Internet in computer sound format. Denizens of the Internet are able to retrieve the sound files and play them back on their computer. Similarly, a radio talk-show based on the same principle was started last year in the United States. The show, called Geek of the Week, interviews noted leaders and popular figures in the computer world and distributes the "broadcasts" to the Internet in computer sound format. The "listener" retrieves the show at his leisure and plays it back on his computer.
While many Canadians will welcome these innovations, they will not come without a price. As every member of our society becomes a potential broadcaster, it will become increasingly difficult to regulate the content of everyone's transmissions. Indeed, the problem will be identical to the problem of trying to regulate the content of Canadian bulletin boards, only on a much larger scale. Combine this problem with the inter-connectedness to other jurisdictions which is sure to follow and you will have a problem identical to the problem of trying to regulate the Internet, but on an infinitely larger scale.
C. APPLICATION OF PROVINCIAL HATE AND DISCRIMINATION LAWS
Section 14(1) of the Saskatchewan Human Rights Code provides that no person shall publish or display in a newspaper, through a television or radio broadcasting station or any other device or in any printed matter or publication or by means of any other medium that he owns or controls, any notice, symbol, emblem, article, statement or other representation which exposes, or tends to expose, to hatred,ridicules, belittles or otherwise affronts the dignity of any person because of his or their race, creed, religion, colour sex, marital status, disability, age, nationality, ancestry or place of origin. In Saskatchewan Human Rights Commission et al. v. Bell, the Court upheld the constitutional validity of s. 14(1). While they have not yet undergone constitutional scrutiny, it is possible that courts would uphold the validity of the similarly worded Manitoba Human Rights Act as well as the less stringent anti-discrimination laws of the other Provinces.
D. APPLICATION OF THE BROADCASTING ACT
There are four regulations under the Broadcasting Act which serve to control the promotion of hatred in Canada through the broadcasting medium. Section 3(b) of the Radio Regulations, 1986, s. 3(b) of the Specialty Services Regulations, 1990, s. 5(b) of the Television Broadcasting Regulations, 1987 and s. 3(b) of the Pay Television Regulations, 1990 all prohibit a licensee from broadcasting or distributing programming that contains any abusive comment that when taken in context, tends or is likely to expose an individual or a group or a class of individuals to hatred or contempt on the basis of a discriminatory ground.
The c