Justice Sopinka weighs in on the Internet (11/09/97)

Justice Sopinka weighs in on the Internet

by Christopher Guly

OTTAWA - While the Internet has proved to be an effective vehicle for the way people communicate with one another, it has also created a new spin to revived existing legal challenges while adding new ones, says Supreme Court of Canada Justice John Sopinka.

"The old scourges of defamation, obscenity and hate propaganda on the Internet may cause greater personal and social damage than ever before," he told the Council on Government Ethics Law in Edmonton on September 15. The conference attracted about 200 delegates from across North America.

"The availability of ways to post messages anonymously makes civil recourse and criminal law enforcement virtually impossible in response to these threats. Privacy is threatened by the collection of personal data, buy the ease of surveillance and by the interception of communications on the Internet."

The Ukrainian Canadian high court justice said that encryption, or the encoding of messages and data, has been touted as one solution to protect privacy. Yet even this method has been criticized for its ability to "shelter criminal behavior such as the circulation of child pornography," said Justice Sopinka.

He referred to the recent annual convention of chiefs of police in Canada. When a 90-minute video that featured excerpts of Internet pornography was shown, 175 officers left the room. "One chief was quoted as saying that 'everything on the Internet is becoming bigger, better, badder, uglier, stinkier, nastier, more violent, more vile, more disgusting.'"

According to Justice Sopinka, "The result of this information explosion is that people have overdosed on free speech."

Some countries have attempted to regulate the Internet.

In February 1996 President Bill Clinton signed the Communications Decency Act, which would have imposed heavy penalties on anyone who transmits indecent or offensive material over a public computer network to minors. On June 26 this year, the U.S. Supreme Court ruled the bill unconstitutional, since it would not be able to determine an Internet user's age and, as a result, prevent the transmission of such questionable material to adults, who enjoy the constitutional right to have access to it.

"The act was found unconstitutional partly due to the existence of filtering software such as NetNanny or CyberPatrol, which allows parents to be assured that objectionable sites will be blocked," said Mr. Sopinka.

Another problem with cyberspace is its "global nature," he explained, "Internet messages are oblivious of international political boundaries. An individual user who posts material on the Internet, which is lawful in his own country, may unwittingly be offending the treasured values of another country."

For example, in December 1995, a German prosecutor forced CompuServe (recently purchased by America Online) to close 200 sex-related news groups because they violated Germany's obscenity laws. Since CompuServe could not limit the block to just Germany, all 4 million subscribers to the online service could not have access to them either.

Justice Sopinka said that imposing sanctions on Internet service providers (ISPs) was not the solution. "They will pass on the costs of sanctions or of attempting to meet the varied national laws to the general public," he explained. "It is surely more efficient to apply legal pressure to those parties who are the origin of [obscene, defamatory or hateful] speech."

Justice Sopinka suggested that "self-regulation" might be one way to regulate cyberspace, where ISPs could feature "alternative dispute resolution" mechanisms to settle claims.

In Canada, the Internet could be regulated through existing libel and slander laws, he said. The criminal code could deal with obscenity and hate messages. In fact, the Canadian Supreme Court has upheld the country's obscenity laws as a reasonable limit on the right to free speech. Justice Sopinka said Canada's high court felt that though the Charter of Rights and Freedoms guaranteed free speech, limits imposed were "justified in the interests of preventing harm to society as determined on the basis of [national] community standards ... that do not vary from one jurisdiction to another." Unlike in the United States, he added, where "local community standards are used to determine whether material is obscene."

Applying Canadian obscenity laws to the Internet could be tricky. "The question arises as to the degree of familiarity with the obscene material that is necessary to implicate an Internet service provider," said Justice Sopinka, adding that it would have to be determined whether an ISP is considered a vendor or maker of obscene material. Furthermore, much of the obscene material transmitted over the Internet originates in the U.S. According to the Canadian Criminal Code, "no person can be convicted of an offense committed outside Canada," he explained.

Determining whether a Website is promoting hatred is no easier, said Justice Mr. Sopinka. This time, culpability could lie with the sender "since the [ISP], who merely facilitates the transmission of a message, is unlikely to even know of the content of the message."

But Justice Sopinka said legal tests would have to be imposed to determine whether a message posted in an online bulletin board are considered a "public place" and whether any penalties can be imposed if it originates outside of Canada. Even if the Internet was free of such abuses, it would spell "only partial success," he explained. Some abuses will remain and some people will be left without redress.

"While this is to be regretted, it is the price we pay for the right to enjoy freedom of speech and the price we pay for the many benefits that we derive and will continue to derive from this powerful new medium."

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