John Kingdon, 1994
The Legal Group for the Internet in Canada (LoGIC)
INTRODUCTION
The primary focus of discussions about freedom of expression is the person engaging in the expression: the author, the filmmaker, the artist, the pamphleteer, the journalist. If attention goes beyond this point, the secondary focus is the listener: the person receiving the expression. But there are other actors in expression who are often ignored. These are the intermediaries who move the information from the expressing person to the listener. An author requires publishers and bookstores; a filmmaker requires producers, theatres and video rental outlets; and an artist requires galleries.
These intermediaries often have interests in the expression that are considerably different from those of the expressing person (referred to for convenience as the speaker). While the manager of an art gallery may have almost as much interest in the content of the exhibits as the artist, the typical owner of a video rental outlet will have little or no concern for the content of the films made available, seeing them only as inventory to be marketed. Along with reduced interest in the content comes reduced knowledge. An author may be presumed to know intimately the contents of his or her book, while the bookseller who sells a hundred copies of it may never look beyond its cover.
Yet if the content of the expression engages civil or criminal liability, the intermediary may find itself put in the same position as the speaker. A bookseller whose shop contains thousands of items may be held responsible for the contents of all of them, and be presumed by law to know those contents as well as the authors. Such legal responsibility may very well act as a strong disincentive to the bookseller, who will act to limit liability in ways which inhibit the free flow of expression and information.
Recently a new type of intermediary has developed: providers of computer information services. Originally, such services were single computers whose information could be retrieved or added to by limited numbers of people at a slow rate. An even newer variant on this is the Internet service provider. The Internet is an immense interlinked network of computers that spans the globe, each computer being able to communicate with every other. Vast amounts of data, representing many types of information, flow through it each second, heedlessly crossing national and jurisdictional boundaries. An Internet computer is a gateway to and depository for information originating throughout the world. An Internet service provider sells the use of such a computer, permitting its clients to access these services.
As will be shown, the Internet is a medium of communication that is entirely unique; it cannot be safely analogized to any familiar medium. It is an exciting development which significantly advances the goals of freedom of expression. It is only lightly regulated, largely due to the difficulty of locating the originator of any particular piece of information, and of enforcing laws against that originator if he or she is in a different jurisdiction from the regulator. Given these difficulties, it is tempting for a regulator to turn its attention away from the speaker to the intermediary. Internet service providers are visible and accessible, unlike the users. The potential exists to apply the laws relating to liability for prohibited expression to these intermediaries. Any such effort might, however, be harmful to the development and accessibility of the Internet. If the Internet is, as suggested, a significant step forward for freedom of expression, such harm would be deeply troubling.
This paper will attempt to examine the laws which might be applied to Internet service providers. The central emphasis will be given to the mental elements of the obscenity provisions contained in s. 163 of the Criminal Code of Canada,[1] due to the significant development of these elements in existing case law. Also, due to the large amount of sexual material circulated on the Internet, it is likely that this will be the area in which the jurisprudence for Internet free expression will be developed. Once the current law has been explored, a concise description of the Internet will be given. The potential application of obscenity law to the Internet will then be explored, along with the consequences of that application. Finally, other areas of prohibited expression will be discussed.
THE MENTAL ELEMENTS OF OBSCENITY
The relevant offences "tending to corrupt morals" in the Criminal Code are as follow:
163(1) Every one commits an offence who
(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever
163(2) Every one commits an offence who knowingly, without lawful justification or excuse,
(a) sells, exposes to public view or has in his possession for such a purpose any written matter, picture, model, phonograph record or other thing whatever
The section contains two separate offences, and the word "knowingly" is present in the second offence but not the first.
Subsection (5) says that "For the purposes of of this section, the motives of an accused are irrelevant."
Subsection (6) was declared unconstitutional in the case of R. v. Metro News Ltd.,[2] and later repealed.[3] Its text was as follows:
(6) Where an accused is charged with an offence under subsection (1), the fact that the accused was ignorant of the nature or presence of the matter, picture, model, phonograph record, crime comic or other thing by means of or in relation to which the offence was committed is not a defence to the charge.
Subsection (8) defines the word "obscene" for the purposes of the section. It states:
(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
This paper will focus on the offence created by s. 163(1)(a), since its mental element is clearly less strict than that of s. 163(2)(a) and it almost entirely incorporates that section except for the mention of exposing to public view. "Distribution" has been held to include and expand on "sale".[4]
The mental element of the offence may be divided into two parts, which can be referred to as awareness and analysis. Awareness concerns the strictly factual knowledge of the accused; to what extent was he or she aware of the presence and contents of the material? Analysis concerns the state of mind of the accused towards the legal obscenity of the material; did he or she know that the material was legally obscene? Awareness is a problem largely restricted to intermediaries; it is safe to infer that the speaker is fully aware the contents of his or her expression. Analysis, on the other hand, is a problem applicable to both speakers and intermediaries.
Awareness of Materials
The case law on the mental element of obscenity crimes has tended to focus on what is referred to as the "presence and nature" of the material, as distinct from the content. For instance, in R. v. McFall,[5] it was held that a film exhibitor need only have knowledge of the nature of the film to be guilty of the offence, and that knowledge of the contents was not required.
Regrettably, there is little to indicate what exactly is meant by the "nature" of expressive material, nor what is required to make an accused aware of it. Clearly the nature is somehow related to the content, and the obscenity of the content. The basis for the definition of obscenity is a sexual element. If the accused is aware that the material concerns sex in some way, is that enough to make him or her aware of its nature? Such a definition seems overly broad, encompassing such diverse items as anatomy textbooks and romance novels which would be considered by the average citizen as being far from obscene. If a court ultimately determines that a romance novel is obscene, would a bookseller be liable simply for stocking that genre? Also, what is meant by the word "sex"? Does it include mere nudity? Would the aforementioned bookseller be liable for a book ultimately found obscene if he or she was aware that its title was The Representation of Nudes in Late Eighteenth Century European Art?
It is possible to infer that the "nature" test was developed in the context of the courts' awareness of a recognizable class of "adult" products, generally restricted to specialty dealers or locations. Understood in the context of, for example, films with ludicrously suggestive titles and bold "XXX" labels, the development of the "nature" test becomes more comprehensible. But as we will see, an obscene computer file bears no such easily recognizable markings. How can the "nature" test be applied to such materials?
The leading case in Ontario on the mental element of the obscenity offence is Metro News.[6] In this case Martin J.A. of the Ontario Court of Appeal first considered the then-existing s. 163(6), which removed awareness of the materials from the mental element. Based on analysis of ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms,[7] that subsection was found to be unconstitutional. Martin J.A. was left to determine the mental element of s. 163(1)(a) in the absence of subsection (6). With respect to awareness of the materials, he concluded that to obtain a conviction the Crown need not show any awareness. However, it was held that it was open to the accused to avoid liability by showing that he or she acted under an honest and reasonable but mistaken belief as to the presence or nature of the materials.[8] This interpretation of the mental element was held not to violate ss. 7 or 11(d) of the Charter. The above analysis has been subject to some criticism.[9]
It was also held that wilful blindness to the presence or nature of the materials is equivalent to knowledge.[10]
Finally, Martin J.A. said that the Crown had no obligation to show that the whole of the materials (a magazine in this case) was obscene.[11]
The judgment in Metro News largely ignored s. 2(b) of the Charter. After striking down subsection (6), Martin J.A. noted that it had also been attacked on the basis of s. 2(b) of the Charter, but that the point was moot.[12] For reasons not apparent on the face of the judgment, the subsequent analysis of the mental elements of the offence did not take s. 2(b) into account at all. It is therefore undecided if the mental element arrived at is consistent with freedom of expression.
In fact, no analysis of the mental element of s. 163 offences has been undertaken by a Canadian appellate court. The Supreme Court of Canada in R. v. Butler[13] specifically declined to address any part of the section other than the definition of obscenity in subsection (8).[14] However, the court's consideration of the vagueness of that definition has some bearing on the mental element.
Mental elements of obscenity offences relating to awareness of the materials were considered by the U.S. Supreme Court in the case of Smith v. California.[15] The court determined that a state obscenity law violated the First Amendment of the U.S. Constitution (via the Fourteenth Amendment) due to its lack of requirement of mental element. The defendant in this case was a bookseller. Beginning with the proposition that "the free publication and dissemination of books and other forms of the printed word furnish very familiar applications of [freedom of expression]",[16] Mr. Justice Brennan for the court reasoned as follows:
By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature.
...And the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. The bookseller's limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded.[17]
The emphasis here is on self-censorship, and its effect on intermediaries.
Analysis of Materials
Assuming for the moment that the accused is aware not only of the "nature" but of the full contents of the impugned materials, does that complete the required mental element? It has been argued that a further element is required: that the accused have a state of mind directed at the legal obscenity of the materials. If this argument were accepted, then a defence would be available to the charge based on a reasonable belief that the material was not obscene under s. 163(8).
In Metro News, Martin J.A. rejected this argument, basing his analysis largely on common law and statutory interpretation. Section 2(b) of the Charter was not considered. A large part of the reasoning was a comparison to the law of competition, where it had previously been held that it is no defence that an accused honestly believes that its actions would not unduly lessen competition.[18] The defence of due diligence was treated as being equivalent to the defence of mistake of facts, and was found to be unavailable on the same grounds.[19]
In arguing mistake of fact and due diligence, the accused led evidence of steps taken to ensure that materials were not obscene. These included approval of the material by Canada Customs and a private committee set up by the Periodical Distributors of Canada, and an informal arrangement with the police that distributors would be given a chance to withdraw materials considered obscene before charges were laid. Since the defences were held not to be available, this evidence was of little use. But in reviewing it, Martin J.A. made the interesting comment that the accused "realized that there were certain risks involved in the distribution of 'adult' magazines."[20]
Vagueness and Overbreadth
Related to the accused's analysis of the materials, and to the possible availability of the defences of due diligence or mistake of fact, is the doctrine of vagueness. If an accused makes an informed and reasonable assessment of the materials as not being obscene, and is later found by a court to be wrong in this assessment, it must be because the law is somehow unclear. It has been held that a law may be struck down if it is impermissibly vague. The central case relating to this doctrine is R. v. Nova Scotia Pharmaceutical Society,[21] in which Gonthier J. observed that "[t]he 'doctrine of vagueness' is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion."[22] While vagueness may invalidate a law, the court acknowledged that no law can be absolutely certain, and that the creation of a "risk zone" around certain activities is permissible.[23] It is important to note that Nova Scotia Pharmaceutical was a case dealing with competition law.
Gonthier J. also noted the existence of a separate but related doctrine, that of overbreadth. Overbreadth is related to the "minimal impairment" sub-test of the test in R. v. Oakes,[24] and means that the impugned law goes further than it should in prohibiting or burdening constitutionally-protected conduct. With respect to the relation between vagueness and overbreadth, Gonthier J. adopted the following statement of the Ontario Court of Appeal in R. v. Zundel:[25]
The intended effect of a statute may be perfectly clear and thus not vague, and yet its application may be overly broad. Alternatively, as an example of the two concepts being closely interrelated, the wording of a statute may be so vague that its effect is considered to be overbroad.
Clearly this second form of overbreadth relates to the issue of self-censorship. Gonthier J. indicated that he preferred to deal with this form of overbreadth under the Oakes test, with invalidation under the "prescribed by law" test of s. 1 of the Charter being reserved for extreme forms of vagueness.[26] It is difficult, however, to understand the distinction being made. The concept of "pure" vagueness is explicitly said to be based partially on fair notice to citizens. This fair notice cannot be separated from issues of self-censorship, or the availability of defences of due diligence or mistake. If fair notice is given, this means that citizens should, with reasonable effort, be able to conform their behaviour to the law. If an accused can be convicted of breaking the law despite reasonable efforts to conform to it, that would seem to indicate that fair notice has not been given. It is the latter situation which leads to self-censorship.
Both Martin J.A. in Metro News and Gonthier J. in Nova Scotia Pharmaceutical refer to the concept of certain activities carrying risk. Nova Scotia Pharmaceutical was decided in the context of competition law; in Metro News, Martin J.A. did not consider the expressive nature of the activity and analogized to competition law, treating the distribution of adult magazines as being an activity equivalent to engaging in questionable business practices. In neither case was it considered whether additional factors would apply where the zone of risk was created around a constitutionally protected activity such as expression. The activities regulated by competition law, unlike expression, are not subject to Charter protection. Without this problem having been considered, it is open to question whether the very narrow test for invalidation due to vagueness in Nova Scotia Pharmaceutical is proper when it is expression that is subject to risk.
The Supreme Court of Canada has considered this problem, but not in any consistent manner. In R. v. Keegstra,[27] McLachlin J. in dissent alluded to self-censorship while considering minimal impairment:
[T]he vagueness and subjectivity inherent in s. 319(2) of the Criminal Code gives ground for concern that the chilling effect of the law may be substantial. The more vague the language of the prohibition, the greater the danger that right-minded citizens may curtail the range of their expression against the possibility that they may run afoul of the law.
...The danger is...that the legislation may have a chilling effect on legitimate activities important to our society by subjecting innocent persons to constraints born out of a fear of the criminal process. Given the vagueness of the prohibition of expression in s. 319(2), one may ask how speakers are to know when their speech may be seen as encroaching on the forbidden area.[28]
In R. v. Butler,[29] the Supreme Court of Canada considered the definition of obscenity under s. 163(8) of the Criminal Code. Writing for the majority, Sopinka J. considered the issue of vagueness under the prescribed by law test. He concluded that the definition was not so vague as to not be prescribed by law.[30] However, at no point in the judgment is vagueness considered in conjunction with freedom of expression. At no point is the concept of self-censorship even mentioned. This is a deeply troubling omission in so important a decision.
Both Keegstra and Butler were decided before the attempt to codify vagueness and overbreadth doctrines in Nova Scotia Pharmaceutical.
In R. v. Zundel,[31] McLachlin J. writing for the majority found it unnecessary to consider vagueness under the "prescribed by law" test.[32] Under the minimal impairment test, she made some reference to self-censorship due to vagueness:
The danger is magnified because the prohibition affects not only those caught and prosecuted, but those who may refrain from saying what they would like to because of the fear that they will be caught. Thus worthy minority groups or individuals may be inhibited from saying what they desire to say for fear that they might be prosecuted.[33]
However, no further analysis on this point was offered. We are left without any way to determine when overbreadth due to vagueness will be fatal under the minimal impairment test.
The dissenting judgment of Cory and Iacobucci JJ. concluded that the law is not impermissibly vague under the "prescribed by law" test without reference to freedom of expression.[34] Neither vagueness nor self-censorship was mentioned anywhere else in the dissent.
In summary, a majority of the Supreme Court of Canada has recognized self-censorship due to vagueness to be a consideration under the "minimal impairment" part of the Oakes test. However, no guidance has been given for its application, and the court seems curiously willing to forget its existence entirely.
THE INTERNET
The above sets out the existing law of obscenity as it applies to intermediaries. In order to apply it to the specific problem of Internet service providers, some description of the Internet is required.
This section will attempt to give a broad overview of the Internet's structure and functioning so that the related expression issues may be discussed in context.[35] Both the technical and conceptual details will be given, since there are times at which the difference could be critical; see the discussion of remote file viewing/retrieval below. For futher detail, there are many books on the subject.[36] Some of the general observations are subject to exceptions that are not relevant to the discussion, and are therefore not mentioned.
The Underlying Structure
The basic building block of the Internet is the individual computer. For our purposes, we can narrow the computer down to two components: the processor, which performs the calculations and operations; and storage, the component or components which hold data for the processor to act upon. Data is usually stored in units called files, each of which represents a collection of related data and may be of any size. A file may be a collection of numeric information; a text document; a numeric representation of graphics or sound; a sequence of coded instructions for the processor called a program; a combination of the above; or anything else that can ultimately be represented in a numeric form.
To communicate with a computer, a person requires a terminal, a collection of input and output devices. For a desktop computer, the terminal is typically represented by the keyboard and monitor directly connected to the computer; only one person can use it at at time. But more powerful computers are designed to support large numbers of users simultaneously, and provide connections for many terminals, some of which may be a considerable distance from the computer itself. A terminal may, in fact, connect to a computer through the telephone system, and therefore might be in a completely different province, country or continent. Finally, one computer may act as a terminal for another if the two are connected in some way; again, this is often done using the telephone system.
A few users may be able to share the use of a computer with no special arrangements. Once a certain threshold is reached, though, this is no longer possible. Users will require some assurances of privacy, and that their files will not be tampered with by others either through accident or malice. Also, if a computer's use isn't restricted by physical means, the system manager will want some way to control who can use it. These goals are achieved through a system of accounts. Each user is given a secret password. Without that password, he or she cannot use the computer. A given password only gives access to that user's private files, and to the files shared by all users. Only the system administrator will have access to all files on the computer, and this will often be controlled by contract with the user. As a last resort, a user may also encrypt a given file so that it cannot be read even by someone with access to it.
The Internet is simply a vast collection of individual computers, each of which meets three criteria. First, each computer on the Internet is connected to every other computer. Second, each is designated by a unique identifier called an IP number. Third, each understands a method of breaking down files and addressing them, called TCP/IP (Transmission Control Protocol / Internet Protocol). What this means is that one Internet computer may transmit a file to any other Internet computer. The sending computer takes a file and breaks it down into smaller packets for ease of handling. Each packet is labelled with the unique identifiers of the sending and receiving computers, and then transmitted. Finally, the receiving computer reassembles the packets into the file.
This communication is at the heart of all the services that the Internet offers.
Internet Services
Electronic Mail
This is the simplest service. A user on one computer creates a file, usually a text file, and transmits it to a user on another computer. If the receiving computer has an accounts system, the file will be made accessible only to the intended recipient.
A file may be mailed just as easily to many users as to one. This may be used to form what is called a mailing list, a system often used as an alternative to newsgroups (see below) for discussion among a fairly restricted group of people, or when newsgroups are not available. Members of the mailing list send files to a central user (or automatic program) who then retransmits them to all members.
Telnet
This program allows an Internet computer to act as a terminal for any other. This one service allows a user to circumvent any restrictions imposed by his or her local service provider. If the user cannot, for example, access a certain newsgroup on a local computer, possibly due to concerns about liability for its content, he or she only needs get an account on some other computer that does not have this restriction and use the local machine to telnet to it.
Remote File Viewing and Retrieval
This service allows a user to access files stored on other Internet computers. There are many forms of this, including ftp (file transfer protocol), WAIS (Wide-Area Information Server), gopher and the World-Wide Web, but they all accomplish essentially the same thing. A request is transmitted to the remote computer, which sends the file to the user's computer. The user may then look at it and allow it to be discarded, or save it.
This demonstrates the different results that may be arrived at depending on whether the transaction is analyzed in conceptual or technical terms. If the user merely views the remote file, then conceptually it is as if he or she went into an art gallery, looked at a painting, and then left. If the file is instead retrieved, it is as if the user took a photograph of the painting before leaving. This distinction could have a considerable effect on liability, depending on the wording of the law involved. But at the technical level, there is no distinction. The file is always sent to the user's computer; it is as if the art gallery operated by sending photographs of its paintings to its patrons' homes. At the conceptual level, a user who merely views a file may be said not to be in possession of it. At the technical level, the user cannot view it without being in possession of it as well.
Newsgroups
This is likely the best-known of the Internet services; indeed, to some the newsgroup system is synonymous with the Internet.
A user creates a file. He or she attaches one or more standardized labels to the file to show what areas of interest it belongs to. The file is then placed in a publically accessible part of the computer's storage. Other users of the computer may then view the file by referring to the standardized label. For instance, if the creating user (who is referred to as posting an article) writes a text file which discusses a word-processing program for Macintosh computers, it would be labelled "comp.sys.mac.apps" ("application programs for Macintosh computer systems"). A user interested in this subject would use the same label to find this article and any others on the same subject.
So far, the transactions have been confined to one computer. However, the posting user's computer may be programmed to automatically transmit articles with certain labels to other computers. These other computers receive the articles and store them in the same way as the original computer. They may then retransmit the articles to still other machines, and so on nearly indefinitely. Through this system an article may be transmitted to and stored on every Internet computer whose system administrator wants it to receive articles with that particular label.
The above describes newsgroups at the technical level. Conceptually, it is as if the user is in an immense room with hundreds of bulletin boards, each with a descriptive label. The user can walk up to any of these boards and read the messages posted on it, or write a new message and post it on the board for anyone else to see. Present in the room with the user are all the other users of Internet computers, each walking from board to board reading and posting messages. However, they are all invisible; the only sign of their presence is the new messages constantly appearing. The bulletin boards are referred to as newsgroups; but, as we have seen, there is no such thing. A newsgroup simply refers to a collection of articles stored in a number of Internet computers, each one bearing the same label.
As is evident, the newsgroup system works only as well as the system of standardized labels. This is maintained through a fascinating process that is half democracy and half anarchy, whose details are irrelevant to our purposes.[37] What is important is that each individual computer is totally under the control of its system administrator. That person designates which newsgroups the computer acknowledges; or, conceptually, which bulletin boards in the room the users may see. Only articles with the labels recognized by the computer will be received and stored. However, the administrator's control ends at this point. Once a given label is recognized, all articles with that label will be received and stored, without regard to their content. The administrator is theoretically capable of reading each article and then deleting it, but this is impossible in practice. A computer which recognizes most or all of the newsgroups intended for global distribution will typically receive approximately fifty megabytes of data (equivalent to sixteen thousand pages of printed text) each day.[38] To reiterate: the system administrator's control ends in practice at the level of the newsgroup, not that of the individual article.
A variant on the standard newsgroup is what is called a moderated newsgroup. Users of a computer may not post to this group; they may only read from it. Only a very small number of users across the entire Internet, often a single person, are able to post to each moderated newsgroup. This allows strict control of what is posted to a newsgroup, but not of who reads it. It is an intermediate step in public discussion between a normal newsgroup (where neither the readers or posters are controlled) and a mailing list (where both readers and posters are controlled).
Other Aspects of the Internet
Interjurisdictionality
A fundamental feature of the Internet is that it ignores jurisdictional boundaries. An Internet computer may communicate as freely with a computer in another region, country or continent as with one in the same room. This poses enormous difficulties for any one jurisdiction which wishes to regulate the information its computers receive, since the person sending that information may be entirely beyond that jurisdiction's authority.
The Variety of Computers and Links
As discussed above, one of the defining characteristics of an Internet computer is that it is connected to all others. The individual computers, and the parts of the link between one computer and another, may be owned and operated by a variety of different entities. A single packet travelling across the Internet may by transmitted across physical links owned by governments, government agencies, quasi-government agencies, publically-funded organizations, public utilities, academic institutions, and private organizations ranging from the heavily regulated to the nearly unregulated. The sending and receiving computers may be owned by an equal variety of entities.
The Text Bias
The main form of information transmitted on the Internet is text. This is because text takes much less space to store compared to other forms. A page of text takes approximately 3200 bytes of storage, while a full-page, full-colour picture can take as much as a million bytes. Since each link connecting computers can only transmit data at a certain rate, the size of a file affects transmission time as well. In addition, text is preferred because it is generally easier to analyze and manipulate. This preference makes the Internet sharply distinct from the broadcast media.
Anonymity
When a packet is transmitted from one computer to another, it is marked with the identifier of the sending as well as the receiving computer. At the user level, electronic mail messages and newsgroup articles are typically marked with the name of the account and computer which sent them. Since an account's name is not required to bear any resemblance to that of its user, a considerable degree of anonymity is available.
There are steps that can be taken even beyond this. If complete anonymity is wanted, a file can be sent to another user who then retransmits it as a newsgroup article or electronic mail message. As long as that other user can be trusted, the original sender is guaranteed almost total anonymity. If the retransmitting user is an automatic program rather than a person, the protection is even greater.
Obviously, such an arrangement makes identification of and enforcement of laws against the sender very difficult, especially if the retransmitter is in another jurisdiction.
Encryption
It is possible for a file to be intercepted as it is transmitted across the Internet. Also, a file stored on a computer is only as private as the physical access to the computer or the account password. A user concerned about privacy may encrypt a file. A program is used to transform the file in such a way as to be unintelligible to anyone who reads it. Only someone who knows the key to the encryption may reverse the process and make the file legible again.
Again, the availability of encryption to users makes enforcement of laws and regulations concerning content more difficult.
Copying
As discussed above, there is no distinction between being able to read a file and being able to copy it. An important attribute of computer files is that making copies of them is a trivial, virtually instantaneous exercise. This ease of copying increases the difficulty of controlling computer data.
Bulletin Board Services
A bulletin board system (BBS) is a more limited form of computer information provider. A BBS is a single computer which can be connected to by others, which send and receive files from it. A typical BBS will be used as a depository of software, and may offer discussion services similar to Internet newsgroups but limited to the single computer. A BBS may be a desktop computer operated as a hobby, or a very powerful system operated for profit by a corporation.
The fundamental difference is that someone connecting to a BBS can go no further. There is no access to files on other computers, and no continuous flow of news articles and electronic mail coming in at all times from other computers. Files may be deposited by users of the BBS, but the operator can exercise strict control over any inflow, far more so than on an Internet computer which offers newsgroups, telnet, electronic mail or remote file retrieval to its users.
Since access to BBS services has been available to those outside academic, government and large corporate settings for much longer than Internet service, most of the existing case law (chiefly in the United States) concerning liability for computer information has concerned BBS systems.
An Example
As an example to bring the above concepts together, consider a typical Internet user. This person owns a desktop computer and the appropriate equipment for connecting it to other computers over telephone lines. Since establishing and maintaining an Internet link is expensive, and administrating the programs necessary to provide Internet services can be very difficult, the user chooses to purchase an account on a commercial Internet computer. The desktop computer is used as a terminal for the Internet computer. If a user of another Internet computer has sent our user some electronic mail, it is stored in a file that only she can access. She may read it and discard it, or retain it. She may sort through the news articles stored on the computer by subject names, and save any articles that interest her to her account. If the administrator of her service provider does not subscribe to a newsgroup that interests her, she may telnet to another Internet computer that carries that newsgroup and on which she has an account. She may save news articles onto her account on the second computer, and then transfer them to the first. Using file retrieval services, she may view or get a copy of any publically-accessible file on any Internet computer. She may also transfer files from the Internet computer to her desktop computer. Once there, they could be printed. She can use electronic mail to send a copy of any text file to any Internet user whose address she knows. If she was worried about privacy, she could use encryption or an anonymity service.
Analogies For the Internet
When discussing the Internet, it is tempting to use analogies to existing forms of communication. This is dangerous, because there is no other form that exactly matches the capabilities of the Internet. Newspapers and broadcast media are a one-way form of communication strictly controlled by the intermediary; furthermore, they are far more expensive. A bookseller provides a closer analogy, especially to the newsgroup system. The similarity is apt when considering a case such as Smith v. California, where the defining charcteristic is the inability to be aware of all of one's products. However, a bookseller still chooses his or her inventory. An Internet service provider exercises far less control: it's as if a bookseller simply allowed anyone to come in and leave books for others to look at or purchase. The telephone system provides some of the same capabilities, but only deals in one form of communication: sound. And the Internet defeats any attempt to find a definitive analogy simply due to the vast amount of information that even a single computer sends and receives daily.
The lesson to be learned from this is that while analogies may be useful for understanding individual aspects of the Internet, they can be dangerously misleading when extended. For instance, while it might be valuable for a court to consider the similarities between a newspaper's printing of letters to the editor and the Internet newsgroup system, it would be inappropriate if that analogy were used to conclude that the service provider has the same relation to its users as a newspaper's editor does to its letter-writers.
The Internet and the Purposes of Free Expression
Many of the discussions of the purposes of free expression, particularly such purposes as the search for truth and self-fulfillment[39], use the concept of a "marketplace of ideas," a theoretical forum in which the individual acts as both buyer and vendor. As buyer, he examines the goods carefully and listens to the representations of the merchants. As vendor, he uses his powers of persuasion to induce others into accepting his ideas. Once the vendors have been given a full and fair chance to speak, and the buyers have had a chance to review all the ideas on display, all parties are in the best possible position to make optimal transactions.
Unfortunately, this marketplace of ideas is an ideal, not a reality. It assumes that all have equal access and equal voice, assumptions that are clearly not applicable to most of the forms of mass communication.
The Internet, and in particular its newsgroup system, is a forum in which those assumptions are given meaning. There are several factors which contribute to this.
First, the Internet is easily the most cost-efficient form of mass communication available. Access requires a desktop computer, telecommunications equipment, and an Internet service provider. Since use as a terminal is relatively undemanding on a desktop computer, the first of these requirements is not onerously expensive. The price of Internet service itself is extremely inexpensive.[40] While access to the Internet is limited to a small minority of the world's, and even the first world's, population, it is far greater than access to broadcast media or large-scale print publication.
The disadvantage to such broad access is that inevitably a significant proportion of participants will be immature, irresponsible or even malicious. There is no way to avoid this; any forum which regulated the access of its participants to such an extent as to weed those people out could not approach the ideal of an open marketplace. Since all users of the Internet have more or less equal resources, an irresponsible user does not have the capability of drowning out the transactions of others. The Internet provides an environment where the immature may be ignored rather than excluded.
Second, a user with a complete set of Internet services is in approximately the same position as any other such user. A wealthy user may be able to afford more time connected to the system, but there is no way to translate wealth into increased persuasiveness. Since the primary form of information is text, the only differentiating factor is writing ability. A corporation able to use its wealth to purchase meticulously prepared and highly persuasive advertisements on broadcast media will have no such capability in an Internet newsgroup. Nor is one user's voice used at the expense of another. The fact that one person posts an article to a newsgroup does not mean that someone else must forego the opportunity. In an environment where access is an unlimited commodity, differences in wealth become far less significant.
Third, the textual nature of the system filters out many irrelevant characteristics. When reading a newsgroup article, there is no way to determine the age, sex, race, religion, sexual orientation, ethnicity or appearance of the writer. The Internet forces each idea to be approached without prejudice or preconception.
If there is a freedom of expression interest in protecting intermediaries and forums of communication, then surely that interest is proportional to the degree to which the forum conforms to the ideal of the marketplace of ideas. The Internet's close conformity arguably gives considerable weight to the interest in its protection. If regulation would seriously harm the functioning of the Internet, the value of its continued existence to freedom of expression should be balanced against the value of the regulation.
APPLYING OBSCENITY LAW TO THE INTERNET
Jurisprudence Concerning Computer Information
There is a very small body of case law which addresses the issue of the liability of computer service operators for information on their systems. Most of it comes from the United States. Nonetheless, it is useful for purposes of discussion.
A case that is directly applicable is Cubby Inc. v. Compuserve Inc.[41] Compuserve is a large-scale commercial BBS operation. Its users pay for connection and in return receive access to a very large library of computer programs. In addition a well-developed discussion service similar to Internet newsgroups is provided. Compuserve contracts with other entities to place information on the system for the benefit of its subscribers. This case arose when Cubby Inc. alleged that one of these contracted information providers had placed information on Compuserve which defamed it. Cubby brought suit against both the information provider and Compuserve, alleging that Compuserve was a "publisher" of the information.
The court cited Smith v. California to support the proposition that Compuserve could only be liable if it knew or had reason to know of the defamatory statements; to hold otherwise would "impose an undue burden on the free flow of information".[42]
The decision is equally important for its recognition of the practical limits of a computer service provider to be aware of the contents of its files:
While Compuserve may decline to carry a given publication altogether, in reality, once it does decide to carry a publication, it will have little or no editorial control over that publication's contents.
...Compuserve has no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for Compuserve to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.[43]
While Canadian courts have yet to approach these issues, the Supreme Court of Canada has in an aside recognized the difficulty of regulating the Internet. In C.B.C. v. Dagenais,[44] while considering the law to be applied to publication bans of courtroom proceedings, it was noted that electronic information sources make such bans difficult to enforce:
The efficacy of bans has been reduced . by the advent of information exchanges available through computer networks. In this global electronic age, meaningfully restricting the flow of information is becoming increasingly difficult.[45]
There is no way to tell if this sentiment will be repeated when the court considers restrictions on computer information.
The Application of the Law to Computer Data
When applying the existing law of obscenity to computer data, there are several issues that must be resolved before freedom of expression issues may be considered. For instance: files stored on a computer typically take the form of a pattern of polarities on a magnetic tape. Does such a file constitute obscenity, or is it meaningless to the law until translated into a usable form such as text or graphics on a monitor or printout? Does the administrator and/or owner of a computer "possess" the files stored on it? If the computer has an account system, does the administrator possess the files stored by the users in their private filespaces? What effect would a contract between the user and the administrator have on any such possession, given that the administrator always retains the ability to modify or delete any file on the computer?
These are all difficult issues which will require resolution by the courts. Since the focus of this paper is on free expression, however, they will not be dealt with here. I will assume for the purpose of argument that system administrators and users who have access to and control over computer files possess them for the purposes of the Criminal Code, and that such files, even in raw form, constitute obscenity if what they represent is obscene.
The Supreme Court of Canada has shown a strong recent trend towards very broad definitions of criminal offences in terms of the harm they are meant to prevent.[46] If this reasoning is applied to these problems, it is likely that such issues would be resolved in favour of liability.
Applying and Analyzing the Law
Under the law as it stands following Metro News, Internet service providers are in a very similar position to any other intermediary. The fact of possession of obscenity for the purpose of publication, distribution or circulation would be enough to ground liability in the absence of a showing of a mistake of fact. This defence could apply if, for instance, the administrator honestly believed a file to contain information unrelated to obscenity. It would not appear to apply, however, if there was awareness of the presence of the file but simple lack of knowledge of its nature or contents. There would equally be no defence for an honest belief that a file was not legally obscene.
What would the consequences of this be? If the administrator is held to "possess" only those files not held in users' accounts, that still leaves the largest set of files, the newsgroup articles. The administrator would be completely unable to sift through those sixteen thousand pages daily worth of files in any meaningful way and judge obscenity. Even if this was possible, a mistake in judging obscenity would result in liability. One remedy would be to not subscribe to any newsgroup which seemed capable of carrying obscenity; this would likely involve any newsgroup which related in any way to sex. The question would remain even so as to what would happen if an obscene article appeared in a seemingly innocent newsgroup. It would be possible to argue that a mistaken but reasonable and honest belief was based on the assumption that articles relate in content to their newsgroup labels; for instance, it would be reasonable to assume that an article with the "comp.sys.mac.apps" label was not obscene.
If the provider in law possesses all files on the system, even those in private accounts, the consequences are considerably more serious. Since it is trivial for users to retrieve obscene files or retrieve them by e-mail, and since those files bear no convenient tags on which to base a reasonable assumption of a non-obscene nature, an administrator might feel it necessary to discontinue those services.
Can the Charter right to freedom of expression be used to alleviate these consequences? The first step is to determine if there is a s. 2(b) interest in what the U.S. courts refer to as the free flow of information. Without a case such as Smith v. California, it is uncertain what the status of an intermediary is in Canadian expression law. While an intermediary could simply claim the same rights as an originator of expression, such an analysis would not take into account the functional differences between speakers and intermediaries.
Whatever the purposes of freedom of expression, they require expression to take place. If expression advances the purposes of freedom of expression, then it would appear that the greater the amount of expression, the more those purposes are advanced. If an intermediary makes it possible for more expression to take place, then that intermediary is furthering those purposes. Therefore, the intermediary should be protected by freedom of expression.
Does this lead to a situation where an intermediary who facilitates the transfer of information to thousands of people is considered more deserving of protection than one who delivers only to hundreds? Such reasoning looks at intermediaries as individual entities, rather than in the aggregate. Regulation which discourages intermediaries from providing services affects all the regulated intermediaries as a group. The small publisher, on this analysis, is considered together with the large publisher, instead of as being somehow in competition.
Also, different intermediary services might qualitatively advance the puposes of freedom of expression to different extents. This approach could temper a quantitative analysis. The Internet, as we have seen, provides intermediary services that approach the ideal of the marketplace of ideas, a concept strongly linked to some of the purposes suggested as underlying freedom of expression. Such a system of intermediary service might be granted greater protection than one which reached an equal number of people, but which was controlled by a small group of extremely wealthy individuals or corporations.
For these purposes, a corporate intermediary would be treated exactly the same as a person.
If we have decided that intermediaries deserve protection, then we have an argument for adjusting the mental elements of obscenity laws so that the Internet, an important intermediary service, is not threatened.
If we adjust the elements relating to awareness of materials, what should the new rules be? If it is accepted that the state has an interest in criminalizing obscenity, a balancing process is required. One possible balance is the "knew or ought to have known" standard of Cubby.
How would this standard be applied to newsgroups? As we have noted, there are certain newsgroups that have a higher risk of attracting obscenity than others. There are some which may carry a significant proportion of obscene materials; others may be considered almost risk-free. However, the service provider may only exercise control at the newsgroup level, not the article level. If a newsgroup is dropped, the users are denied access to both obscene and non-obscene articles. A balancing process might have to be undertaken for each newsgroup: does the value of non-obscene articles outweigh the known incidence of obscenity?
To make these judgments, the service provider will have to decide what is obscene and what is not. Such decisions, if they are to serve the purposes of freedom of expression, must not carry an inevitable risk of criminal liability. The courts should develop a principled test of vagueness that explicitly takes self-censorship into account, since it is self-censorship that endangers the provision of intermediary services.
If a consistent approach to vagueness leading to overbreadth is adopted, the courts will then have to determine what the effect of such vagueness is on the results of the Oakes test. It is undoubtedly true that laws of general application cannot be made totally clear. If it is found that a law is as clear as possible, but still leaves a zone of risk around expressive activity, then it seems as if the final decision must be made in the final, proportionality stage of the test, balancing the harm of self-censorship against the benefits of the regulation. There is an alternative, however. If a defence of due diligence or mistake of fact, as argued for in Metro News, is recognized for a vague expression offence, then actors will be able to avoid criminal liability through the exercise of due diligence, and the problem of self-censorship will be greatly reduced.
If the protection of intermediaries is recognized, and mental element requirements are adjusted to reflect this protection, then it will be possible to find a balance between avoiding self-censorship while still allowing the state to fulfil its interest in curbing harmful expression.
Other Forms of Expression
The principles developed above can be applied with little modification to other forms of expression prohibited based on content. Hate speech, defamatory expression, or expression in violation of judicial publication bans are all very similar to obscenity for this purpose.
Hate speech and libel, if they carried as minimal a mental element test as current obscenity law, would in fact have even harsher consequences for Internet service providers. It is comparatively easy to identify a number of newsgroups that carry a high risk of obscene content. However, hate speech is less predictable. Any discussion of politics or current affairs may involve racial issues. Since access to the Internet is largely unregulated, there is a high risk that whenever discussion turns to racial issues, an immature or irresponsible person would make a hateful statement. If there are harsh standards for liability, such a possibility could force a service provider to drop any newsgroup which carried such a risk. The loss of service would be considerably greater than for obscenity. Much the same holds true for libel, which would become a risk anytime discussion became heated.
CONCLUSION
Internet services hold out the promise of greatly enhancing the ability of the average person to express and receive expression. However, they also hold out the promise of allowing the originators of expression to easily avoid liability for their actions, since such features of Internet as anonymity, encryption, and its interjurisdictional nature make enforcement against individual users very difficult.
Given this difficulty, it is tempting for regulators to attempt to control the Internet by extending liability to service providers. If this is done, strong disincentives might be created for these providers. The current obscenity laws, if applied in their present form, are a striking example.
If freedom of expression is to protect those intermediaries which facilitate expression and thereby promote the purposes underlying expression, such regulation must be considered in light of the damage it does and the self-censorship it encourages. Such consideration requires a rethinking of the vagueness and overbreadth doctrines in Canadian law and expression crimes with minimal mental elements.
As intermediaries become more important to expression in Canada, the courts will inevitably have to adjust to meet this reality. The law of obscenity offers a opportunity to make such developments in a well-developed and important area.
1 R.S.C. 1985, c. C-46 [hereinafter Criminal Code].
2 (1986), 29 C.C.C. (3d) 35 (Ont. C.A.) [hereinafter Metro News].
3 S.C. 1993, c. 46, s. 1(2).
4 R. v. National News Co. (1953), 106 C.C.C. 26 (Ont. C.A.).
5 (1975), 26 C.C.C. (2d) 181 (B.C.C.A.).
6 Supra note 2.
7 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter the Charter].
8 Metro News, supra note 2 at 60.
9 Don Stuart, "Metro News: Misplaced Objectivity" (1986), 53 C.R. (3d) 333.
10 Metro News, supra note 2 at 55.
11 Ibid. at 77.
12 Ibid. at 54.
13 (1992), 70 C.C.C. (3d) 129 (S.C.C.) [hereinafter Butler].
14 Ibid. at 141.
15 361 U.S. 147 (1959).
16 Ibid. at 150.
17 Ibid. at 154-155.
18 Metro News, supra note 2 at 65-66.
19 Ibid. at 69.
20 Ibid. at 42.
21 [1992] 2 S.C.R. 606 [hereinafter Nova Scotia Pharmaceutical].
22 Ibid. at 626-627.
23 Ibid. at 638-639.
24 [1986] 1 S.C.R. 103 [hereinafter Oakes].
25 (1987), 58 O.R. (2d) 129 at 157-158.
26 Nova Scotia Pharmaceutical, supra note 21 at 630-631.
27 [1990] 3 S.C.R. 697 [hereinafter Keegstra].
28 Ibid. at 859-860.
29 Supra note 13.
30 Ibid. at 154-155.
31 [1992] 2 S.C.R. 731 [hereinafter Zundel].
32 Ibid. at 760.
33 Ibid. at 772.
34 Ibid. at 803-807.
35 The author apologizes to those who will inevitably find this overview either too simplistic or too complex.
36 The author recommends in particular Ed Krol, The Whole Internet User's Buide & Catalog (Sebastopol CA: O'Reilly & Associates, 1992) and Jim Carroll, The Canadian Internet Handbook (Scarborough, Ont.: Prentice Hall Canada, 1994).
37 Those interested may refer to the sources mentioned ibid.
38 See Krol, supra note 35 at 156.
39 See for instance Irwin Toy Ltd. v. Attorney General (Quebec),
[1989] 1 S.C.R. 927 at 976 [hereinafter Irwin Toy].
40 See The Canadian Internet Handbook, supra note 35.
41 776 F.Supp. 135 (S.D.N.Y. 1991) [hereinafter Cubby].
42 Ibid. at 140.
43 Ibid.
44 [1994] S.C.J. No. 104 (QL).
45 Ibid., Lamer C.J.C.
46 R. v. Moyer (1994), 92 C.C.C. (3d) 1, R. v. Chartrand (1994), 91 C.C.C. (3d) 396.