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- ​ILLEGAL AND OFFENSIVE CONTENT 
- 
- ON 
- 
- THE INFORMATION HIGHWAY 
- 
- 
- A Background Paper 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- ​Gareth Sansom 
- Long Range Planning & Analysis (DPP) 
- ​Spectrum,​ Information Technologies and Telecommunications Sector (SITT) 
- ​Industry Canada 
- 
- June 19, 1995 
- 
- 
- 
- 
- 
- 
- 
-TABLE OF CONTENTS 
- 
- 
-ACKNOWLEDGEMENTS iii 
- 
-INTRODUCTION  ​ 1 
-WHAT IS OFFENSIVE COMMUNICATION?​  ​ 1 
-COMMUNICATION IN A DEMOCRATIC SOCIETY  ​ 1 
-PURPOSE OF DOCUMENT  ​ 2 
- 
-COMPUTER-BASED MEDIA  ​ 3 
-COMPUTER BULLETIN BOARD SYSTEMS (BBS)  ​ 3 
-INTERNET  ​ 4 
-USENET  ​ 5 
- 
-PORNOGRAPHY  ​ 8 
-THE CURRENT SITUATION: THE AVAILABILITY OF SEXUALLY EXPLICIT ​ 
-MATERIAL 
-  8 
-Adult Magazines & Books  ​ 9 
-Adult Video: Sale and Rental 10 
-Pay-TV and Satellite Delivery of Adult Movies 11 
-976 Telephone Sex 12 
-COMPUTER-BASED PORNOGRAPHY 12 
-USENET and the alt.sex Hierarchy 13 
-File Archives and chat lines: the computer bulletin board system (BBS) 19 
-DEALING WITH OBSCENITY 21 
-Legal Framework 21 
-Police Actions 26 
-Problems of Enforcement 27 
-Controlling Access to On-line Pornography 28 
-CHILD PORNOGRAPHY:​ EXTENT OF THE PROBLEM 32 
- 
-HARASSMENT 35 
-COMPUTER-MEDIATED HARASSMENT 37 
- 
-HATE PROPAGANDA 41 
-COMPUTER-MEDIATED HATE PROPAGANDA 43 
-LEGAL FRAMEWORK 46 
- 
-DEFAMATION ON THE INFORMATION HIGHWAY 50 
- 
-CONCLUSION 55 
- 
-BIBLIOGRAPHY 61 
- 
- 
- 
- 
- 
-ACKNOWLEDGEMENTS 
- 
-An earlier draft of this paper was distributed to experts within the federal government, many of  
-whom provided extensive comments which were incorporated into the present version: 
- 
- Justice Canada: 
- 
- Criminal Law Policy Sector:  
- Elissa Lieff  
- Paul Saint-Denis  
- 
- Human Rights Law Section: 
- Annemieke Holthuis 
- Michael Peirce 
- Isabelle Plante 
- 
- Research & Statistics Sector:  
- George Kiefl 
- 
- Heritage Canada: 
- 
- Nathalie Bradbury (Broadcasting Policy) 
- Normand Duern (Human Rights)  
- Elizabeth Ide (Legal Counsel)  
- Marie-Josee Levesque (Arts Policy) 
- Mark O'​Neill (Race Relations)  
- Dhiru Patel (Corporate Policy & Research) ​ 
- 
- Industry Canada: 
- 
- Heather Black (Legal Counsel)  
- Jacques Drouin (Telecommunications Policy) 
- Peter Ferguson (Consumer Policy) 
- Luc Fournier (Communication Development Directorate) 
- Bill Graham (International Cooperation and Trade Directorate) 
- Andrew Siman (Communication Development Directorate) 
- 
-I would not have had the benefit of many books, articles and legal documents without the efforts ​ 
-of Industry Canada'​s research librarians at Journal Tower South, among whom Estelle Lacroix ​ 
-merits special recognition.  ​ 
- 
-My colleagues in the Technology Impact Assessment directorate have shared their time, advice ​ 
-and knowledge. ​ Winnie Pietrykowski deserves my thanks for her invaluable editorial ​ 
-contribution. ​ The division'​s Director, Helen McDonald, guided this project from the beginning ​ 
--- it could not have been completed without her insight, conviction and counsel. 
- 
-The penultimate draft was read by an additional two dozen individuals from across the country - 
-- active on-line luminaries, university professors, lawyers, law enforcement officers and  
-concerned citizens. ​ I am grateful for their time and for the wisdom they offered. ​ Whatever ​ 
-errors remain are mine. 
- 
- 
-INTRODUCTION 
- 
-WHAT IS OFFENSIVE COMMUNICATION? ​ 
- 
-The boundaries of offensive communication are a contested terrain. ​ When we negotiate the  
-parameters of offensive communication we are not only threading our way through a maze of  
-competing interests ​  we are weaving the very pattern of our social fabric. ​ If we are obliged ​ 
-periodically to weigh our communication practices against the lofty standards of freedom of  
-speech and responsibility it is because these practices are not merely the unleashing of words or  
-pictures, but the planting of markers which define the limits of what is private and what is  
-public. 
- 
-The boundary between private and public is one threshold where acts of communication can  
-become not only offensive but illegal. ​ As David Price argues "​conduct becomes prohibited ​ 
-when the threshold is crossed and private choice encroaches upon public domain"​ (Price 1979:  
-301).  For example, inherent in our legal construction of defamation is the notion of  
-publication. ​ A privately held belief or opinion can become hate propaganda when it is publicly ​ 
-expressed. ​ In the same manner, a person can legitimately look at a Playboy centrefold in the  
-privacy of their home but to post the same pin-up on the wall at the office could count as sexual ​ 
-harassment. 
- 
-Artists and writers in our society often grapple with the fact their works can be viewed as  
-offensive and subjected to legal sanctions. ​ D. H. Lawrence'​s book Lady Chatterley'​s Lover was  
-subjected to extensive trials in Canada and abroad thirty years after its initial publication;​ more  
-recent examples include obscenity charges against British Columbian punk band Dayglo ​ 
-Abortions, and the trial of Eli Langer whose paintings are said to contravene the child  
-pornography statute. ​ Obscenity charges, of course, are not simply levelled at art and high-brow ​ 
-literature: men's magazines, X-rated movies and gay sex manuals have also been targets. 
- 
-COMMUNICATION IN A DEMOCRATIC SOCIETY ​ 
- 
-One of the most delicate balancing acts in a democratic society is to safeguard freedom of  
-expression while minimizing the very real risks posed by communication which harms or  
-threatens to harm.  Even if the condition of harm serves to tip the scales from communication ​ 
-which is permissible to that which is illicit, there remains a turbulent domain of contested ​ 
-content. ​ What one group or individual might regard as offensive communication might be  
-considered by other groups or individuals to be an article of faith, a philosophical conviction, a  
-political opinion, or even an innocuous form of entertainment. ​ When controversies erupt, there  
-are two fundamental judicial structures which determine the outcome: the Canadian Charter of  
-Rights and Freedoms and the Criminal Code. 
- 
-Section one of the Canadian Charter of Rights & Freedoms "​guarantees the rights and freedoms ​ 
-set out in it subject only to such reasonable limits prescribed by law as can be demonstrably ​ 
-justified in a free and democratic society." ​ Section 2(b) guarantees "​freedom of thought, belief, ​ 
-opinion and expression, including freedom of the press and other media of communication."​ 
- 
-The freedoms specified in Section 2(b) of the Charter are not unlimited: certain acts of  
-communication are regarded as illegal in Canada. ​ This is because Section 1 guarantees rights ​ 
-"​subject only to such reasonable limits prescribed by law as can be demonstrably justified in a  
-free and democratic society"​ (emphasis added). ​ To the extent that courts hold Criminal Code  
-provisions to be reasonable limits, the government may restrict freedom of expression in certain ​ 
-well-defined areas. ​ In particular, the Criminal Code details under what circumstances ​ 
-communicative practices or their products can be subject to criminal prosecution including: ​ 
-obscenity (Section 163), child pornography (Section 163.1), hate propaganda (Sections 318- 
-320) and defamatory libel (s.297-317). 
- 
-PURPOSE OF DOCUMENT ​ 
- 
-In the twentieth century, the debate over offensive communications has been conducted with  
-respect to paintings, books, sound recordings and movies. ​ With increasing urgency, it is being  
-framed in terms of the role played by computers, networks, and electronic media. ​ The purpose ​ 
-of this document is to assess to what extent the new communications technologies are altering ​ 
-the parameters of what we define as offensive communications,​ and how well our existing legal  
-and societal responses to offensive content work in a digital environment. ​ The intent is to take  
-stock of what we know, identify areas for further research, and to provide a useful starting ​ 
-point for debate on what Canadian public policy should be with respect to offensive content on  
-the information highway. ​ 
- 
-This paper focuses on offensive communication that enters the realm of illegality, in particular, ​ 
-the following four areas: 
- 
-(1) obscenity and child pornography;​ 
- 
-(2) sexual harassment (including obscene e-mail, "​net-stalking",​ and display of  
-pornographic material in a public place); 
- 
- (3) hate propaganda; and 
- 
- (4) defamation and libel. 
- 
- 
- 
-COMPUTER-BASED MEDIA 
- 
-One of the main reasons for revisiting the question of illegal communications is that a variety of  
-new media are becoming embroiled in controversy. ​ It is thus necessary to understand the nature ​ 
-of these new technologies and the communication practices that have emerged with them. 
- 
-Offensive material in the form of texts, programs, images, or sound files can be: (1) stored on  
-floppy disks, hard disks, or CD-ROM disks (an acronym for Compact Disk: Read Only  
-Memory) for use in individual computers, and/or (2) communicated through such computer ​ 
-networks as the Internet, USENET and computer bulletin board systems (BBS). ​ The rest of this  
-section explains how these differ in ownership, administration and control. 
- 
-COMPUTER BULLETIN BOARD SYSTEMS (BBS)  
- 
-Anyone with a computer and a modem connected to the public telephone system can access a  
-computer bulletin board system (BBS) in Canada or anywhere in the world. ​ But perhaps more  
-significantly,​ using widely available software anyone with a computer and a modem can  
-establish their own BBS.  BBS software is available commercially at a moderate price. ​ More  
-importantly,​ on many of the thousands of computer bulletin boards in North America, BBS  
-software can be freely and legally obtained. ​ Some BBS software is "​freeware"​ meaning that one  
-can use it at no charge. ​ Other BBS software is "​shareware"​ meaning that one can test the  
-software for a trial period, following which one should purchase a user's license from the owner  
-of the copyright. 
- 
-There are a wide range of computer bulletin boards in operation, differing in size, purpose, and  
-user base.  A small percentage are clearly commercial activities with subscriptions and other  
-user fees.  A number of large companies, particularly in the computer software field, have set  
-up free bulletin boards as a means of keeping in touch with their customers. ​ Other companies ​ 
-establish private bulletin boards to permit the exchange of information among employees. ​ But  
-the vast majority of bulletin boards are launched by hobbyists. ​ Generally they are free or if  
-they charge a subscription fee it is minimal (for example $30 per year). ​ Most of these BBSs  
-have a few hundred subscribers,​ often less.   They provide a "​place"​ where people can  
-communicate on topics of common interest or exchange programs and text files. ​ Some have  
-likened the communication which transpires on a bulletin board to conversations taking place in  
-a pub or a private club, and compare file exchanges to transactions in a public library, a  
-bookstore, or at a garage sale. 
- 
-The number of computer bulletin boards is growing steadily. ​ One indication of the vitality of  
-this grassroots movement is the FidoNet. ​ In June 1984, FidoNet consisted of two bulletin ​ 
-boards; by August 1984 it had grown to almost 30; eight years later it was a world-wide self- 
-regulating amateur network comprising some 15,649 bulletin boards. ​ But FidoNet is merely ​ 
-one fraction of the BBS community -- estimates suggest FidoNet accounts for only 27% of the  
-public dial-up bulletin boards in the United States. ​ In July 1992 there were over 40,000 bulletin ​ 
-boards in the U.S. and 66,000 worldwide (Boardwatch October 1992: 61). 
- 
-Bulletin boards are very easy to set up and virtually impossible to control: any phone line  
-connects a BBS to the rest of the world. ​ This is their greatest strength as a democratizing form  
-of communication but also the heart of the problem when something begins to go wrong. ​ If  
-recent media concerns are any indication, a handful of bulletin boards are not as socially ​ 
-responsible as their counterparts. 
- 
-INTERNET ​ 
- 
-The Internet started as a U.S. military computer network designed to connect researchers ​ 
-scattered across the continent. ​ As it evolved, however, the Internet began to connect thousands ​ 
-and thousands of networks. ​ Soon it was no longer researchers under military contract but  
-researchers in every academic field and not just military contractors but all sorts of companies.  ​ 
-Now, the Internet has commercial offshoots and publicly accessible sites (FreeNets and other  
-community-based networks). 
- 
-The word "​Internet"​ covers a bewildering variety of services, technologies,​ and administrative ​ 
-arrangements. ​ Among the distinct services available on the Internet, the most familiar is  
-probably e-mail. ​ In addition, one can access programs available on a distant computer and  
-interact with these programs (give them commands and read their output) by using telnet. ​ One  
-can also send files to or retrieve files from a remote host by using ftp (i.e., "file transfer ​ 
-protocol";​ some host sites permit this to be done "​anonymously"​). ​ There are also a variety of  
-automated tools for browsing and searching directories (e.g., archie, gopher, WAIS). ​ World- 
-Wide Web sites provide access to hypertext documents, allowing you to follow a link   a word,  
-concept or image   from one place in the file to another point either in that file or some other  
-document that could be stored on the same computer or on a machine halfway around the world.  ​ 
-At the cutting edge of Internet services, one can experiment with video-conferencing using  
-Cornell University'​s free CU-SeeMe program for Windows and Macintosh platforms. ​ One of  
-the most widely used services, available on millions of Internet host computers, is USENET: a  
-valuable source of information where some people exchange technical data and others engage in  
-scientific, religious or political debate. ​ USENET is a heady mix of news, gossip, humour and  
-passionate opinions. 
- 
-The Internet grew through the co-operative efforts of government, academia and large  
-corporations. ​ The infrastructure expanded: the number of sites increased, and the speed or  
-capacity of the lines connecting the sites making up the backbone grew.  By November 1992  
-over a billion packets of digital bits were being exchanged each day on the Internet and traffic ​ 
-was growing at the rate of 11 per cent per month (Gilster 1993: 16).  This means that millions ​ 
-of people are communicating via e-mail and transmitting electronic files to each other. ​ 
- 
-Today, school children are being connected to this immense computer network. ​ What is  
-sometimes forgotten is that it was never imagined that the Internet would become a place where  
-children would learn and play.  For 25 years the Internet had developed a culture based on those  
-who used it: soldiers and other military personnel, computer scientists, aerospace engineers, and  
-a variety of university researchers. ​ This was a world which was uncompromisingly adult, ​ 
-highly educated, and almost exclusively male.  It is perhaps not surprising that a culture clash is  
-now taking place   or more accurately, a series of distinct cultural clashes. ​ It is not just school ​ 
-children who are being connected to the Net but diverse social groups ​  small businesses seeking ​ 
-new entrepreneurial opportunities,​ not-for-profit and philanthropic organizations and community ​ 
-groups seeking broader access to information resources.  ​ 
- 
-If we are to comprehend and mediate these clashes, we must understand that the Internet has  
-never been a single, monolithic entity but a patchwork of administrative bodies with unique ​ 
-sources of ownership, different organizational controls and distinctive mandates. ​ The Internet ​ 
-began as a military research community and became a plurality of research communities with  
-different agendas. ​ It is now undergoing another transformation as various other occupational ​ 
-and organizational groups become connected, many under the broad rubric of "​commercial ​ 
-users"​. ​ 
- 
-USENET ​ 
- 
-USENET is a cooperative e-mail network which permits millions of people to communicate with  
-each other on thousands of topics (each topic called a "​newsgroup"​). ​ One observer has  
-described it as "a bunch of bits, lots of bits, millions of bits each day full of nonsense, ​ 
-argument, reasonable technical discussion, scholarly analysis, and naughty pictures" ​ (Vielmetti ​ 
-1991/1994). 
- 
-It persists because people like to read and/or write "​articles"​ on various topics. ​ It is made  
-possible by a set of protocols for disseminating,​ storing and reading news and a suite of  
-computer programs (newsreaders and newsservers) that implement the protocols. ​ The  
-computers on which these programs run are owned by a wide range of entities: universities and  
-other institutions,​ government departments,​ companies both multinational and minuscule, as  
-well as thousands of private citizens in dozens of countries.  ​ 
- 
-One should be cautious in making assumptions about the status, behaviour, or control ​ 
-mechanisms of any USENET host-site ​  it may belong to an individual or a private, public or  
-non-profit organization,​ and the community standards in that host-site'​s particular corner of the  
-globe may vary dramatically from our own.  Nor is there a distinct administrative body with  
-authority to determine who gets what information or who can post articles (Salzenberg,​ Spafford ​ 
-& Moraes 1994). ​ Rather, USENET is a set of communication practices that has evolved over  
-the last decade or so within a community of computer users (really a multiplicity of  
-communities) with access to distributed resources. 
-  
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
- 
-USENET is not the same as the Internet. ​ The Internet carries many different kinds of traffic ​ 
-and supports many different kinds of services: only one of these is USENET. ​  ​Conversely, ​ 
-USENET traffic is disseminated through a number of other networks which do not belong to the  
-Internet proper. ​ USENET is a feed-forward network in which a host-site receives articles from  
-its neighbour and may subsequently re-transmit those articles to another neighbour further ​ 
-"​downstream"​. ​ It is not uncommon to get one set of newsgroups from one newsserver and get  
-a different set from a second newsserver. ​ The fact that a newsserver gets its news from another ​ 
-newsserver does not imply a formal centralized structure: often it is nothing more than bilateral ​ 
-arrangements between the system operators (sysops) of the respective machines. ​ An increasing ​ 
-number of adaptations are also beginning to emerge. ​ Some transmissions are based on cost- 
-recovery schemes and a variety of for-profit transactions are available. ​ For example, a bulletin ​ 
-board system does not need to receive incoming USENET feed via telephone lines connected to  
-a distant computer on the Internet. ​ The "​newsdump"​ is now being offered as a satellite service ​ 
-which can be received on a small satellite dish for a monthly subscription. 
-Although not a centralized structure, there are a variety of checks and balances in place.  ​ 
-USENET experience suggests that with the high amount of two-way communicating going on,  
-there is bound to be a certain degree of disorganization,​ repetition, off-topic chatter and even  
-occasional rudeness resulting from completely unregulated postings. ​ Originally, all USENET ​ 
-newsgroups simply contained whatever postings netdwellers hammered out on their keyboards.  ​ 
-But in 1984, the first moderated group appeared, initially to isolate administrative ​ 
-announcements from opinion and gossip. ​ This not only gave rise to the first glimpse of  
-hierarchy within USENET (the creation of newsgroups with the prefix net or mod) but  
-established a tradition which continues to this day.  ​ 
- 
-When a newsgroup is moderated it generally means that someone reads all the articles posted to  
-the newsgroup and then decides which ones should be distributed to other people. ​ Some may  
-regard this as being equivalent to an editor at a newspaper or periodical; others might think of it  
-as the Speaker of the House; other metaphors are possible. ​ Whatever one may think of the  
-benefits and drawbacks of moderated newsgroups, the very existence of the two broad classes ​   
-moderated and unmoderated ​  ​requires policy developers and legislators to weigh different sets  
-of considerations regarding responsibility and liability when making decisions which have an  
-impact on USENET. 
- 
-In 1986, seven official hierarchies were created to bring some order to the proliferation of  
-newsgroups:  ​ 
- 
- comp Topics of interest to computer professionals and hobbyists, including ​ 
-computer science and information on hardware and software systems. 
- 
- sci Discussions marked by special and usually practical knowledge, relating to  
-research in or application of the established sciences. 
- 
- news Groups concerned with the news network and software themselves. 
- 
- misc Groups addressing themes not easily classified under any of the other  
-headings or which incorporate themes from multiple categories. 
- 
- soc Groups primarily addressing social issues and socializing. 
- 
- talk Groups largely debate-oriented and tending to feature long  
-discussions without resolution and without appreciable amounts of generally ​ 
-useful information. 
- 
- rec Groups oriented towards the arts, hobbies and recreational activities. ​ 
-[Spafford 1993] 
- 
-The newsgroups in the seven official hierarchies are created on the basis of voting by USENET ​ 
-readers. ​ This people'​s press is predicated on participatory democracy. ​ There are three main  
-phases in the creation of a USENET group belonging to the seven official hierarchies:​ (a) the  
-discussion; (b) the vote; and (c) the result. ​ There is also a responsibility for host sites to carry  
-newsgroups in the principal hierarchies (soc and talk groups are discretionary).  ​ 
- 
-There is, however, another classification which has emerged that is carried on a completely ​ 
-voluntary basis: the alt hierarchy. ​ The alt hierarchy arose as a response to the official hierarchy ​ 
-of newsgroups. Anyone can create an alt group   no voting is required ​  and any host can carry  
-or refuse to carry any alt group. ​ There are more than a thousand alt newsgroups: some are  
-devoted to serious discussion, some are very technical, some are humorous, and a few are  
-outrageous.  ​ 
- 
-The structure of hierarchies can be regarded as analogous in some respects to the tiered system ​ 
-of basic, extended basic and pay-TV in the cable television market -- with the crucial exception, ​ 
-of course, that there is no central agency such as the CRTC regulating what channels belong to  
-what tiers on local systems ... and instead of a few dozen channels there are a few thousand.  ​ 
-Those who use the medium, rather than some central agency, decide whether a newsgroup will  
-belong to the official hierarchy (for example, a newsgroup could start life as an alt group and  
-become one of the official comp groups as was the case with comp.society.cu-digest). ​ Within ​ 
-these parameters, those who provide the infrastructure for the medium (i.e., those who provide ​ 
-the host machines) choose what they will carry. 
- 
- 
- 
-PORNOGRAPHY 
- 
-THE CURRENT SITUATION: THE AVAILABILITY OF SEXUALLY EXPLICIT ​ 
-MATERIAL 
-  
-The definition of pornography is notoriously difficult, even though most people in our society ​ 
-have some sense of what the word means for them.  For purposes of discussion (but not the  
-law), Canada'​s Special Committee on Pornography and Prostitution (the Fraser Committee) ​ 
-proposed that: "... a work is pornographic if it combines the two features of explicit sexual ​ 
-representations (content) and an apparent or purported intention to arouse its audience sexually"  ​ 
-(Government of Canada, 1985: 53-54). ​ Canadian criminal law does not define pornography but  
-is concerned instead with obscenity and child pornography. ​ Section 163 of the Criminal Code  
-states that "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"​. ​ Section 163.1, proclaimed August 1, 1993, pertains ​ 
-to representations of "a person who is or is depicted as being under the age of eighteen years  
-and is engaged in or is depicted as engaged in explicit sexual activity"​. ​ With respect to  
-obscenity, distribution is an offence but not possession. ​ With regard to child pornography, ​ 
-production, distribution and possession are all indictable offences.  ​ 
- 
-There are many sexually explicit materials which most people would not regard as pornographic ​   
-medical documents such as sex therapy manuals, psychiatric case studies, gynaecology text  
-books and so on.  Many other sexually explicit materials, perhaps the largest portion, are legal - 
-- even though they are referred to as "​pornography"​ in everyday speech. ​ Pornographic material ​ 
-becomes illegal only when it falls under the provisions for obscenity or child pornography. ​ In  
-line with the widely accepted sense of "​pornography"​ the legal notion of "​obscenity"​ pertains to  
-sexually explicit works. ​ However, for a book, magazine, or video to be obscene the  
-exploitation of sex in that work must not only be a dominant characteristic but such exploitation ​ 
-must be "​undue"​. ​ With the decision in the 1992 case of R. v. Butler, the Canadian Supreme ​ 
-Court clarified this notion of the "undue exploitation of sex": 
- 
-... the portrayal of sex coupled with violence will almost always constitute the undue  
-exploitation of sex.  Explicit sex which is degrading or dehumanizing may be undue if the  
-risk of harm is substantial. ​ Finally, explicit sex that is not violent and neither degrading ​ 
-nor dehumanizing is generally tolerated in our society and will not qualify as the undue  
-exploitation of sex unless it employs children in its production.  ​ 
- 
-If material is not obscene under this framework, it does not become so by reason of the  
-person to whom it is or may be shown or exposed nor by reason of the place or manner ​ 
-in which it is shown. ​ ([1992] 1 S.C.R., 485) 
- 
-The determination that "​Explicit sex that is not violent and neither degrading nor dehumanizing ​ 
-is generally tolerated in our society and will not qualify as the undue exploitation of sex" ​ 
-indicates that much of what could be called pornography is perfectly legal in Canada. 
- 
-Sexually explicit material is available in a number of formats. ​ The so-called adult entertainment ​ 
-industry includes live entertainment ("​exotic dancers"​) and adult theatres which concentrate ​ 
-exclusively on sexually-explicit feature films (often called X-rated pornographic movies). ​ One  
-of the most widely available forms of legal pornography are adult books and magazines.  ​ 
-Magazines with the most extensive circulation ​  such as Penthouse, Playboy, Playgirl, and  
-Hustler ​  are obtainable not only in magazine stores and newsstands but also in thousands of  
-neighbourhood convenience stores.  ​ 
- 
-To provide a context for the exploration of computer-based pornography,​ this next section ​ 
-explores the availability of the following: 
- 
-(1) Adult magazines and books 
- (2) Adult videos 
- (3) Pay-TV and satellite delivery of adult movies 
- (4) 976 telephone sex 
- 
-Adult Magazines & Books  
- 
-A large number of bookstores, including the major chains such as Coles and W. H. Smith, ​ 
-carry at least a small selection of adult books. ​ Often these appear in the fiction racks under  
-"​Anonymous"​ and range from Victorian erotica such as My Secret Life and Man With a Maid  
-to contemporary novels devoted to sexual exploits. ​ A curious eye scanning the shelves in a  
-bookstore'​s literature section could easily discover publications which could be regarded as  
-legally available pornography ​  the works of the Marquis de Sade come to mind as an obvious ​ 
-example. ​ Certain titles in the "true crime" genre, particularly those recounting the violent acts  
-of sexual sadists, contain chapters that are sometimes more lurid than such controversial novels ​ 
-as American Psycho. 
- 
-"Sex shops" can be found in cities across the country which, in addition to "​marital aids", often  
-sell a wide range of magazines, as well as paperback books of erotic fiction. ​ Unlike the mass  
-market magazines such as Penthouse or Playboy, the magazines in sex shops have little ​ 
-commercial advertising;​ this, in addition to their smaller circulation,​ contributes to their higher ​ 
-prices. ​ The magazines tend to be devoted to particular sexual practices or particular body types  
-and it is probable that the majority of these are imported from the United States. 
- 
-Prior to the Committee on Sexual Offences Against Children and Youths (Badgley Committee) ​ 
-which submitted its report to the federal government in 1984, there was very little ​ 
-comprehensive knowledge of the distribution of pornographic magazines in Canada. ​ The  
-Badgley Committee reported that in 1980, the 5,981,400 copies of Penthouse sold in Canada ​ 
-garnered revenues of $16,​448,​850. ​ In the same year, Playboy'​s Canadian revenues equalled ​ 
-$9,554,050 for 3,474,200 copies in circulation (Badgley Committee 1984: 1252). ​ These two  
-magazines accounted for 62.8% of the $41,389,264 in revenue registered by the Audit Bureau ​ 
-of Circulation'​s 1980 figures for total sales of audited U.S. adult magazines in circulation in  
-Canada. ​ The Audit Bureau of Circulation only reports magazine and newspaper data from its  
-members. ​ Consequently,​ these figures do not represent the total Canadian domestic ​ 
-consumption of magazine-based pornography. ​  Based on the National Accessibility Survey, the  
-Badgley Committee stated that in 1982-83, 540 different titles of pornographic magazines were  
-reported to be in distribution in Canada (Badgley Committee 1984: 1245-1249). ​ There is a  
-very high probability that the 12 titles included in the Audit Bureau of Circulation'​s 1980  
-figures actually represent the largest share of domestic revenues for pornographic magazines.  ​ 
-Very few of the titles would have 12 issues per year (many exist for only one issue) and very  
-few if any of these 500 publications would reach the annual copy sales of the smallest of the  
-twelve audited magazines. ​ 
- 
-What is rather striking is that a decade later the Canadian circulation of glossy mainstream adult  
-magazines, such as Penthouse and Playboy, had declined substantially. ​ Penthouse saw the most  
-dramatic decrease, plummeting from almost six million copies in 1980 down to 976,752 in 1992  
-and an estimated 930,384 copies in 1993.  Playboy fell from an annual circulation of almost ​ 
-three and a half million to 1,544,688 in 1992 and an estimated 1,463,844 copies in 1993.  ​ 
-Comparison with the U.S. circulation of these two magazines indicates that between 1988 and  
-1992, Playboy'​s paid circulation fluctuated year to year but was relatively stable. ​ On the other  
-hand, Penthouse experienced rapid declines: the magazine'​s circulation having been almost cut  
-in half between 1988 and 1992. 
- 
-This preliminary evidence contradicts the popular conception that the amount of pornography in  
-our society continues to increase. ​ A variety of hypotheses could be investigated to assess what  
-is actually happening. ​ For instance, it could be that Penthouse and Playboy have lost market ​ 
-share to other mainstream adult magazines such as Hustler; that is, magazines which do not rely  
-on traditional advertisers (clothing, liquor, cigarettes, etc.) but are supported by advertisers in  
-the adult entertainment industry (phone sex, X-rated videos, etc.). ​ As such, these magazines ​ 
-have no reason to belong to the Audit Bureau of Circulation. ​ Another hypothesis is that  
-Penthouse and Playboy have lost market share to the adult magazines sold in sex shops. ​ This  
-would indicate a significant shift in consumer purchase patterns. ​ Or it could be the case that  
-adult magazine purchases as a whole have genuinely declined over the past decade. ​ To some  
-extent this could be due to changing attitudes. ​ Alternatively,​ and what might be the most  
-plausible explanation,​ is that this is a clear case of media substitution. ​ Substantial portions of  
-the market that were previously served by adult magazines have shifted to adult video. 
- 
-Adult Video: Sale and Rental ​ 
- 
-In 1983, only 6% of Canadian households had a videocassette recorder; by 1993, 77% of  
-Canadian homes had at least one VCR and 64% had two.  It is this level of consumer preference ​ 
-that makes video sales and rental such a significant component in today'​s film distribution ​ 
-schemes. 
- 
-Adult videos are available for sale or rental in virtually every town and city in Canada in one of  
-three sites: (a) adult video stores where the primary business is adult video rental; (b) sex shops  
-that sell adult videos in addition to a wide range of "​marital aids" and other commodities;​ and  
-(c) "​mainstream"​ video stores where only one portion of their stock is adult-oriented X-rated ​ 
-videos. ​ A number of municipalities have recently introduced municipal by-laws to control the  
-number of adult video stores or restrict their location (Jorgensen 1994; Prentice 1994; Sharpe ​ 
-1994).  ​ 
- 
-While it is likely that the majority of these outlets are independent stores, there are a number of  
-chains. ​ The largest Canadian chain is thought to be Adults Only Video. ​ Started in 1986 in  
-Saskatoon, Saskatchewan,​ the chain now has approximately 500 employees, annual revenues ​ 
-approaching $25 million, and about 80 stores (Jenish 1993: 52-56). ​ Although the chain has  
-outlets in Saskatchewan,​ Alberta, British Columbia and Manitoba, the majority of the stores (60  
-of them) are located in Ontario (the first was established in late 1990). 
- 
-There is purportedly very little adult video production based in Canada: 
- 
-Distributors,​ retailers and police insist that there is no professional adult-film production ​ 
-in Canada, and that most of the videos come from the United States or Europe.  ​ 
-According to some estimates, the American industry, which is composed of about 70  
-companies, churns out as many as 100 pornographic movies a week.  (Jenish 1993: 53) 
- 
-The claim that no adult videos are professionally produced in Canada is perhaps overstated but  
-domestic production does appear to be minimal.  ​ 
- 
-It is difficult to determine how many adult video titles are currently in circulation in Canada.  ​ 
-The 1986 revised and updated edition of Robert H. Rimmer'​s The X-Rated Video Guide, ​ 
-focusing on X-rated films produced between 1970 and 1985, rates over 1,300 films on  
-videotape and provides a supplemental list of 2,840 more.  The Ontario Film Review Board  
-reported (personal communication) that between April 1, 1993 and March 31, 1994 it classified ​ 
-2,846 videotapes; of these 1,892 (66.5%) were adult sex films. ​ The fact that 1,892 adult sex  
-films were rated in one year suggests that there must be a fairly strong consumer demand. 
- 
-Pay-TV and Satellite Delivery of Adult Movies ​ 
- 
-Although video cassette rental is probably the primary consumer source for adult movies, cable  
-television and satellite TV are also delivery mechanisms. ​ Although initially many of the adult  
-films shown on pay-per-view cable channels could be classed as "​softcore"​ pornography, ​ there  
-now appears to be little difference between what is on cable and the material available in adult  
-video stores. 
- 
-In 1968, only 13% of Canadian homes subscribed to cable television; by 1992, 72% of  
-Canadian homes subscribed to the basic tier of cable television services and about a third of  
-these were willing to pay extra for the discretionary services. ​ Although films featuring "​nudity ​ 
-and sexual situations"​ are sometimes shown on late night movie channels (e.g., on Québec'​s ​ 
-Quatre Saisons), softcore and hardcore adult material delivered via cable has two main sources.  ​ 
-First, in an occasional or sporadic fashion, softcore material surfaces on discretionary services ​ 
-(e.g., The Movie Network appears to schedule one or two softcore films per month). ​ Second, ​ 
-both softcore and hardcore movies appear on pay-per-view where there is a regular slate of four  
-or five adult movies per month. ​ Pay-per-view is available on certain cable systems, providing ​ 
-the subscriber has rented the sort of decoding unit which is also used for descrambling other  
-discretionary services. ​ The pay-per-view transaction is made over the telephone; some cable  
-companies ask for a credit card number for a first-time order. 
- 
-The Ottawa-based company XTC-COM operates Exxxtasy TV, a hard-core pornographic video  
-transmission delivered via satellite. ​ XTC-COM initially intended to offer two kinds of service: ​ 
-(1) a scrambled service to bars, clubs and similar public establishments in Canada; and (2) a  
-Direct-To-Home (DTH) scrambled satellite service. ​ However, they were advised in November ​ 
-1993 by the CRTC that a license was required for a Canadian DTH service. ​ An article in The  
-Ottawa Citizen states: 
- 
-From its suburban offices not far from the Herongate Mall, it [XTC-COM] serves 18,​000 ​ 
-subscribers across the U.S.  Clients pay as much as $220 U.S. per year for eight hours a  
-day of triple-X-rated videos... Exxxtasy TV has also been sold to nine strip clubs across ​ 
-Canada, says its general manager, Richard Latham, but "99.9 per cent of our business is  
-in the U.S." ​ (Atherton; January 31, 1994) 
- 
-Currently there appears to be no hard-core pornographic video service using satellite to target ​ 
-the Canadian residential market. 
- 
-976 Telephone Sex  
- 
-Anyone who watches television after the eleven o'​clock news has probably seen the  
-advertisements for 976 telephone sex services; others may have seen advertising in newspapers ​ 
-and certain magazines. ​ Reliable data on the size of this market, however, are not readily ​ 
-available. ​ In CRTC Telecom Decision 94-4 (Revision to 900 Service) it was stated that Bell  
-Canada (or any common carrier) cannot deprive these information services of bandwidth even if  
-they disapprove of the content. ​ A common carrier, however, may refrain from providing them  
-with automatic accounting services (thereby ensuring that companies must bill their customers ​ 
-via credit cards). 
- 
-The pervasiveness of sexually explicit products and practices in Canada indicates that a diverse ​ 
-range of pornographic material is already being tolerated in our society. ​ Given that  
-pornographic books and magazines have been available for at least two centuries and that  
-pornographic films and videos have been available for a number of decades, it is not surprising ​ 
-that we already have various laws, procedures, and practices for handling such products and  
-activities. ​ Legal pornography is a fairly large market; computer porn is simply the latest ​ 
-incarnation and currently represents only a small fraction of the pornography market. 
- 
- 
-COMPUTER-BASED PORNOGRAPHY ​ 
- 
-"​Computer porn" includes pornographic stories or text files, sexually explicit images, and  
-"​adult"​ chat lines. ​ Instances of the first two categories can be found on computer bulletin ​ 
-boards, USENET and CD-ROMs. ​ Adult chat lines, where individuals can see each other'​s ​ 
-responses typed in real time, are a service offered by certain adult bulletin boards. ​ Although ​ 
-there is an Internet chat system called Internet Relay Chat (IRC) it is not exclusively devoted to  
-sexual conversations. ​ Some of the Internet accessible MUDs (Multi-User Dungeons, Domains ​ 
-or Dimensions) ​ also have a strong sexual fantasy component (Bartle 1990; Dibble 1993). 
- 
-The bulk of the sexually-explicit material on bulletin boards or on USENET is not illegal ​  it is  
-not obscene under Canadian law.  Much of this material is similar to what is found in adult  
-magazines available at the local corner store or "​Triple-X"​ videos in adult video outlets. ​ It is  
-not surprising that there is very little original "​computer porn" ​  most of it is digitally scanned ​ 
-from traditional media. ​  ​However,​ some image files on some BBSs could be classified as  
-obscene according to the Criminal Code.  The difficulty is in determining which BBSs have  
-material which is obscene and not simply sexually-explicit. 
- 
-USENET and the alt.sex Hierarchy ​ 
- 
-With its roots in the academic research community, USENET has disseminated information on  
-every conceivable topic for almost a decade. ​ USENET communications were assumed to be  
-conducted by and for adults. ​ The only challenge to this assumption occurred so periodically ​ 
-that it had assumed an almost ritualized cadence: each fall, with the influx of first year college ​ 
-and university students there was a noticeable escalation in the frequency of both posting and  
-flaming (composing and posting provocative or insulting messages). ​ As cycles go, by each  
-spring, the new age cohort had learned the explicit and implicit rules of conduct, curbing the  
-most flagrant acts of irresponsibility. ​ But, as the history of the creation of the alt hierarchy ​ 
-indicates, even among adults there are serious disagreements over the propriety of certain ​ 
-communications ​  ​especially when the topics are sex, drugs, and rock'​n'​roll. ​  Not surprisingly, ​ 
-the most controversial of all USENET groups, outside of the cold fusion debates, are those  
-devoted to sex. 
- 
-Of the 4,937 newsgroups available as of April 18, 1994, only 17 carry sexually explicit material ​ 
-(Mehta & Plaza 1994). ​ The alt.sex hierarchy contains a wide range of topics with names  
-including alt.sex, alt.sex.bestiality,​ alt.sex.erotica,​ alt.sex.fetish,​ alt.sex.stories,​ alt.sex.motss ​ 
-("​motss"​ is the acronym for "​members of the same sex") and alt.sex.pictures. ​ Newsgroups ​ 
-range from the tongue-in-cheek alt.sexy.bald.captains (started by fans of the Jean-Luc Picard ​ 
-character in Star Trek: The Next Generation) to such serious support groups as  
-alt.sexual.abuse.recovery. ​ Depending on the community constituting a newsgroup, the e-mail ​ 
-messages exchanged can be heart-rending personal experiences,​ advice drawn from medical ​ 
-texts or sex therapy manuals, erotic fiction, or fantasies both commonplace and bizarre. ​ With  
-regard to the newsgroups which centre on sex as a recreational pursuit or creative writing outlet, ​ 
-the vast majority of the messages are of the sort that could be found at the neighbourhood ​ 
-magazine rack in periodicals such as Penthouse Forum. ​ Contributors to some of these  
-newsgroups occasionally post images but, generally speaking, digitized photographs,​ drawings, ​ 
-and cartoons are relegated to groups such as alt.binaries.pictures.erotica where pictures, not  
-words, are the focus of attention. 
- 
-The exchange of pornographic photographs and sexually explicit images is apparently more  
-contentious than literary renditions of the most scandalous sexual escapades. ​ The famous ​ 
-example that prompted considerable outrage -- after it was cited in almost every Canadian ​ 
-newspaper article on USENET pornography in early July 1992 -- was described by the  
-Vancouver Province as a picture of "a naked woman hanging by her neck from a rope.  Her  
-mouth is gaping as if she's screaming"​ (July 3, 1992, A46).   There were very few journalistic ​ 
-accounts which sought to dispel the troubling suggestion of misogyny. ​ The Globe and Mail,  
-however, did print an article suggesting that rather than an act of violence against women, the  
-depictions presented in alt.sex.bondage are shared among an often misunderstood sexual ​ 
-minority. ​ 
- 
-Another misconception conveyed by many of the newspaper accounts was that digital images ​ 
-distributed over USENET just "​popped up" in plain view on computer screens. ​  This is not  
-possible. ​ USENET transmits e-mail in ASCII format (the standard alpha-numeric character set)  
-and many of the computers through which the e-mail is posted and routed impose limits on the  
-size of e-mail messages (an upper limit of 64 kilobytes is common). ​ Digital images conflict ​ 
-with both of these characteristics. ​ They are binary files and not ASCII text files, and even if the  
-data are compressed the file sizes often exceed the maximum size limit. ​ Consequently,​ images ​ 
-posted to USENET groups use a program such as uuencode that converts the binary file into a  
-text file.  Thus the e-mail message which appears on screen when one accesses the newsgroup ​ 
-looks like a string of seemingly random alphanumeric characters. ​ Moreover, given the e-mail ​ 
-size restriction,​ the image is almost always broken up into multiple parts. ​ The individual ​ 
-postings must be recombined into a single, correctly ordered file and then transformed into a  
-binary file using the program uudecode. ​ But even then the photograph or drawing will not pop  
-up on the screen automatically. ​ The user must employ a suitable image viewer ​  a software ​ 
-program that is able to decode that particular graphic format. 
- 
-In a similar vein, USENET readers are rarely taken by surprise by sexually explicit images.  ​ 
-The variety of such images has led to the creation of a plethora of special interests, and thus in  
-alt.binaries.pictures.erotica.female one would not encounter photographs depicting male  
-homosexuals. ​ The label of the newsgroup alt.binaries.pictures.tasteless is an explicit warning ​ 
-that the content is probably going to be offensive according to some criteria or other. ​ The  
-decoded image is as likely to be open heart surgery, a Vietnam combat photograph, a picture of  
-a couple engaged in bizarre sexual activity, or a series of images featuring two blue fuzzy  
-stuffed toys posed in ludicrous positions -- the subject listing or one-line description may even  
-inform you ahead of time which of these depictions one will encounter. ​ If you choose to ignore ​ 
-the labelling, you are knowingly setting out to be shocked. 
- 
-The majority of the images transmitted over USENET are of nudes (male or female) and of  
-couples (heterosexual or homosexual) engaged in "​explicit sex that is not violent and neither ​ 
-degrading nor dehumanizing"​ (to borrow the Supreme Court'​s phrase). ​ A recent content ​ 
-analysis of pornographic images available on USENET suggests that between 10% and 15% of  
-a randomly selected sample may contravene obscenity provisions (Mehta & Plaza 1994: 10).  ​ 
-Although research findings are still preliminary,​ it appears that the bulk of the traffic in the  
-newsgroups devoted to the exchange of digital images in the alt.sex hierarchy and the various ​ 
-alt.binaries.pictures.erotica newsgroups is perfectly legal according to the obscenity provisions ​ 
-in the Criminal Code. 
- 
-On the other hand, it is quite probable that some of the occasional postings of pictures depicting ​ 
-bondage, sadomasochism,​ or bestiality would be regarded as obscene under Canadian law.  The  
-matter, however, is not entirely straightforward. ​ Madonna'​s recent book of photographs,​ Sex,  
-included a number of sadomasochistic images -- and was available in Canada. ​ Images of sex  
-and violence more extreme than many in alt.sex.bondage appear in a number of mainstream ​ 
-Hollywood movies, particularly the horror movies fashionable in the early 1980s and the "​erotic ​ 
-thriller"​ which became popular in the early 1990s. ​ When a potentially obscene image is posted, ​ 
-determining the most appropriate course of action can be difficult, particularly for those who  
-have something to lose (i.e., those who are providing the host machines). 
- 
-Periodically,​ individuals who are regular participants in USENET discussions express their  
-concerns about censorship or offensive material (for example David Mason'​s open letter to the  
-online community, Nov. 23, 1993 in can.general and alt.censorship). ​ Now and then,  
-institutions which operate USENET host machines also respond to the incessant flow of  
-newsgroup postings in the more controversial newsgroups -- some decide, for one reason or  
-another, to refrain from carrying certain newsgroups. ​ On rare occasions, one gets the  
-impression of a chain reaction in which several institutions all make decisions about USENET at  
-the same time.  In Canada, the spring and summer of 1992 was one of those rare occurrences.  ​ 
-Alerted to the alt.sex newsgroups, a dozen universities across the country took action and came  
-under the media spotlight. 
- 
-The diversity of responses within the Canadian academic community indicates the bewildering ​ 
-range of issues which erupt when access to the flow of messages in these USENET groups is  
-curtailed: 
- 
- (1) some universities prevented access to certain alt.sex USENET groups or  
-refrained from receiving the newsfeed from those groups; 
- (2) some universities refused to cut the newsfeed and resisted preventing access, ​ 
-despite pressure from local media and some women'​s groups; 
- (3) some universities shut off certain newsgroups deemed to be offensive but,  
-after following some organizational process, restored them within a few  
-months. 
- 
-The alt.sex issue raises a profusion of problems including the undetermined liability of  
-USENET host sites, the multi-faceted jurisdictional quandary of cross-border e-mail flows, the  
-apparent pendulum swing on tolerance vis-à-vis freedom of expression in the academic ​ 
-environment,​ and the relation between pornographic newsgroups and sexual harassment. ​ In the  
-rush to tackle these monumental questions attention is perhaps too easily distracted from the  
-most conspicuous and banal observation:​ the very divergence in the range of responses.  ​ 
- 
-Surveying the newspaper articles, USENET discussions,​ and scholarly papers reveals there has  
-been surprisingly little effort spent to determine what happened and whether or not there are  
-lessons to be learned in how it happened at different places. ​ If details are provided they almost ​ 
-always refer to the local case and assumptions are generalized to other incidents in the rest of  
-the country. ​ Was this a unitary phenomenon that erupted spontaneously in different locations or  
-was this a chain reaction? ​ Is what transpired at different universities the result of unique ​ 
-circumstances or are there structural similarities? ​ Why does it appear inflammatory to suggest ​ 
-that this was a manufactured moral panic?  ​ 
- 
-The penchant to jump to prescriptive rulings following the events of 1992 may serve to replicate ​ 
-the conditions that aggravated the situation in the first place. ​ Haste clouds crucial components ​ 
-in the delicate balance between conflicting rights and responsibilities. ​ In the case of the alt.sex ​ 
-hierarchy the processes giving rise to the predicaments were obscured. ​ More importantly,​ little ​ 
-attention was paid to conflict-resolution mechanisms, which institutionalize the process of  
-negotiating resolutions within the limits of a tolerant, democratic society. ​ This is unfortunate --  
-if anything seems inevitable, it is that this problem will resurface again.  ​ 
- 
-One of the institutions that initially banned newsgroups in the summer of 1992 was the  
-University of British Columbia. ​ This initial response, however, was balanced by a review ​ 
-process when the university created a Task Force to assess the situation. ​ Among the  
-"​Fundamental Principles"​ contained in its final report were the following: 
- 
- 5. The Criminal Code of Canada, the Civil Rights Protection Act, the B.C.  
-Human Rights Act, and the UBC Sexual Harassment Policy all apply to the use of  
-information technology at the University, as they do to other aspects of life here, to limit  
-completely free communication in order that the best possible environment be preserved. 
- 
- 7. The University should not ban the electronic communication between willing ​ 
-participants of messages and images which others might find offensive, since no such ban  
-applies to other forms of communication. 
- 
- 8. Those associated with the University should be educated about the laws and  
-policies applicable to this area, as well as about the need for everyone at UBC to treat one  
-another with respect. ​  ​("​Background Material: History"​. Report of the Task Force.... ​ 
-December 1992. University of British Columbia. ) 
- 
-The thinking behind these principles and the procedures implementing them may prove  
-beneficial to other institutions that must also grapple with the problems of offensive ​ 
-communication over computer networks. ​ The UBC Task Force acknowledges that a broad  
-range of legal measures and local policies are already in place to ensure that public ​ 
-communication is democratic and equitable. ​ They also affirm that existing laws and policies can  
-be applied to computer-mediated communication in order to ensure that the latter is accorded the  
-same level of freedom and responsibility as traditional forms of communication. ​ The Task  
-Force stressed the importance of educating users and administrators alike about the relevant ​ 
-laws and policies so that computer-mediated communication could be conducted responsibly. 
- 
-A number of "​Specific Recommendations"​ put forward by the Task Force also warrant ​ 
-attention, including the following: 
- 
- 2. The University should provide access to all newsgroups and, more broadly, ​ 
-the Internet as a whole, for all members of the University community. ​ Other institutions, ​ 
-such as schools, which access the Internet through UBC accounts, should be informed of  
-the possible existence of material that is inappropriate for their users. ​ Such institutions ​ 
-should make their own policies regulating access to such material. 
- 3. The University should make it clear that the user bears the primary ​ 
-responsibility for the material he or she chooses to access, send, or display on the  
-network and other computing systems. ​  ​("​Background Material: History"​. Report of the  
-Task Force.... University of British Columbia. December 1992)  
- 
-The recommendations about where responsibility should reside are significant and merit careful ​ 
-assessment by policy makers and legal counsel. 
- 
-The situation with respect to USENET newsgroups continues to change, even within the same  
-institution. ​ For example, in 1988, following a controversy over offensive jokes posted to  
-rec.humor.funny,​ the University of Waterloo struck a committee to assess the situation. ​ On  
-May 30, 1991, the report of the Advisory Committee on Network News restored all banned ​ 
-newsgroups and designated a liaison person to deal with complaints arising from e-mail and  
-news postings. ​ In February 5, 1994 the Globe and Mail reported that the University of  
-Waterloo, following recommendations from an ethics committee, had just banned five  
-newsgroups (for a discussion see Rosenberg 1994: 5-7). 
- 
-A number of universities re-assessed their USENET status following Judge Francis Kovacs' ​ 
-publication ban regarding the trial of Karla Homolka. ​ A newsgroup alt.fan.karla-homolka was  
-created on July 14, 1993.  The newsgroup was primarily filled with rumours, gossip and  
-hearsay although a handful of newspaper articles were re-typed and posted (such as one from  
-The Washington Post which was itself a reprint of an article in The Buffalo News and The  
-Detroit Free Press). ​ On November 1993, under order of McGill Vice-President for Planning ​ 
-and Resources, Francois Tavenas, McGill University became the first university to suspend the  
-alt.fan.karla-homolka newsgroup. ​ Within a month 15 Canadian universities,​ the National ​ 
-Capital FreeNet, and one American university discontinued the newsgroup (Rosenberg 1994: 8- 
-13; Shade 1994). ​ What is particularly deserving of further study with respect to these incidents ​ 
-is the relation between the administrative responses to the USENET newsgroup and the legal  
-opinions on the obligations of university libraries with respect to prohibited newspaper articles ​ 
-(whether in paper form or microfilm). 
-The wide range of responses to the alt.sex newsgroups suggests, among other things, an  
-uncertainty with respect to Canadian law concerning obscenity. ​ One of the clear tasks this study  
-must address if policies are to be formulated for dealing with obscenity is not only the letter of  
-the law in the Criminal Code but, perhaps more importantly,​ how the law is interpreted in  
-practice (the rulings in actual cases and the juridical rationale for specific decisions). ​ A  
-preliminary attempt to meet this need will be undertaken in this paper in the section Dealing ​ 
-with Obscenity. 
- 
- 
-File Archives and chat lines: the computer bulletin board system (BBS)  
- 
-It is difficult to ascertain how many bulletin boards have pornographic material available on- 
-line.  One indicator can be found in a recent survey in Boardwatch magazine which garnered ​ 
-11,512 responses (86% male) to a poll on favourite bulletin boards. ​ If one scans the resulting ​ 
-list of the "Top 100" bulletin boards, about 25% fall into the category of having sexually- 
-oriented material (adult chat lines, text files, images, games or interactive programs). 
- 
-Digitized images are probably the most pervasive form of pornography on bulletin boards.  ​ 
-There are four principal means by which bulletin boards acquire images: 
- 
- (1) the BBS sysop (systems operator) can purchase commercial collections on CD- 
-ROM (a single CD-ROM disk can hold thousands of photographs); ​ 
- (2) BBS members can upload files to the BBS (sometimes in exchange for such  
-privileges as longer access time, increased download ratio, etc.); ​ 
- (3) the sysop can download images from other bulletin boards and post them on his or  
-her own board (sometimes regarded as "​raiding"​ the competition,​ other times  
-thought to aid members by bearing the cost of long-distance charges); 
- (4) the sysop produces the images himself or herself by scanning already published ​ 
-magazine images or "​frame-grabbing"​ from X-rated videos (both sources of  
-copyright violation) or by scanning amateur or professional photography to which  
-the rights have been acquired. 
- 
-While the vast majority of the images are no different than what is available commercially at sex  
-shops or adult video stores, any of these sources could provide material which is obscene under  
-Canadian law.  Being able to exclude obscene material ​  or, if obscene material surfaces, ​ 
-determining the responsibility for the source ​  is difficult. ​ The bulletin board system operator ​ 
-may only have practical control over materials he or she personally downloads or produces.  ​ 
-Given that a commercially purchased CD-ROM has thousands of images, it is conceivable that  
-even if the sysop is knowledgeable enough to hazard a guess as to what is and is not obscene, ​ 
-not every image will be previewed before going on-line. ​ For example, a package of three CD- 
-ROMS retailing for $US 69 is advertised as containing 1,892 Megabytes with over 16,180 files.  ​ 
-It could be that all of the images are perfectly legal or that a few dozen are questionable and a  
-handful are clearly illegal. ​ Prior to purchase, the sysop has no way of knowing. ​ Moreover, the  
-CD-ROM could have been made in Europe, America, or Japan where standards of permissable ​ 
-sexual material may be different. ​ One may contend that it is the sysop'​s responsibility to  
-determine the nature of the material prior to putting the collection on-line, but the sheer volume ​ 
-of material that this storage medium permits may push the limits of practicality. 
- 
-Another source of vulnerability is member uploads. ​ The issue is not where the members are  
-calling from (out of province or out of the country) but the sheer volume of traffic that a  
-popular bulletin board can sustain. ​ This is illustrated by a recent American case.   ​Located in  
-Boardman, Ohio and operated out of their home by Russell and Edwinia Hardenburgh,​ Rusty &  
-Edie's BBS is a well known board which specializes in adult material. ​ On January 30, 1993 the  
-house was raided by the FBI using a warrant which alleged that the BBS was illegally ​ 
-distributing copyrighted software programs without permission. ​ An article in the Computer ​ 
-Underground Digest (#5.17, Feb. 28 1993)  summarized a newspaper account which stated ​ 
-that at the time of the raid the BBS had 124 phone lines serving more than 14,000 subscribers ​ 
-and had logged approximately 3.4 million calls since 1984, with more than 4,000 new calls  
-daily. ​ The FBI raid set off a storm of controversy within the on-line community (including a  
-biting editorial by John C. Dvorak in the May 11, 1993 issue of PC Magazine). ​ Ken Smiley, ​ 
-in a post to the BBSLAW Fidonet conference attempted to put the matter in perspective:​ 
- 
-First off, R&E was receiving about 40-50 MEGS of new files daily at the time their  
-system was raided. ​ I think you will agree that it is hard for someone to check out all  
-40-50 megs of these files to determine if they were commercial or not.  In fact, many  
-files were uploaded, commented, and downloaded before the sysops had a chance to  
-inspect them.  This may not be the "​safest"​ way to run a BBS, in other words some  
-sysops don't allow users to D/L a file until the sysop has checked it out first. ​ I would  
-have to agree that I couldn'​t check 40-50 Megs of files per day, nor would I want to  
-unless someone was paying me a lot of $$$ and even then I don't know if I could. 
- 
-R&E was carrying tens of thousands of files online. ​ When the warrant was issued (and  
-the warrant is on public record so I can talk about it) the authorities included a nearly 200  
-page list of files with the warrant. ​ Among that 200 pages were 2 files underlined that  
-were of commercial nature and that the authorities felt were enough to go after the  
-system. ​ (Smiley reposted in Computer Underground Digest, #5.42; June 24, 1993) 
- 
-Over the course of ten years, the Hardenburghs had turned their hobby into one of the largest ​ 
-bulletin boards in North America. ​ But theirs is still a small business. ​ It would be necessary 
-to have employees whose sole function every day was inspecting every image on the latest CD- 
-ROM acquisition and screening every image or message uploaded to a file area or conferences.  ​ 
-A small business running a BBS cannot be expected to hire additional staff to perform these  
-monitoring functions. ​ The Hardenburghs restrict access to adults by requiring credit cards for  
-subscriptions,​ but do not monitor every transaction the members conduct. ​ Controlling the flow  
-of information is like trying to police the conversations in a restaurant or a bar.  This provides ​ 
-some indication of the sort of problems a BBS can face   ​whether that one file in 10,000 is  
-copyrighted or obscene. 
- 
-Chat-lines are another form of computer-based pornography. ​ It could be argued that the "​sex ​ 
-on-line"​ realm of BBS message areas and real-time chat lines are an adult fantasy game which  
-lacks bodily contact -  safe sex pushed to an extreme. ​  ​Picture suburban rec-rooms or at-home ​ 
-offices where adults exercise their imaginations with a curious blend of verbal dexterity and  
-typing skill, somewhat like a cross between a 976 phone sex service and a 19th century ​ 
-epistolary contest. ​ Jack Rickard, well-respected editor of Boardwatch Magazine, put it this  
-way, in a less-than-politically-correct column: 
- 
-Systems advertised to be a real hot spot, are often frequented by pretty normal people ​ 
-discussing pretty mundane things. ... The online world of sexual discussion is largely a  
-world of fantasy ​  where the middle-aged insurance salesman, balding and sporting a  
-houseful of kids and mortgage payments, can for a few hours assume the persona of Don  
-Juan, Don Quixote, or Don Drysdale. ​ It is interesting to note that many of the svelte, ​ 
-ravishing young femme fatales online are actually sixty-ish, widowed, and perhaps ​ 
-physically handicapped. ​ Their lives in the real  world are largely as non-participants, ​ 
-shut into smallish homes with no money or mobility to go anywhere. ​ The modem and  
-these fantasy worlds online allow them to be as young or as old, as rich or as poor, as  
-pretty or not as they claim to be.  There is little chance of being called on the little white  
-lie.  It is a form of group, interactive escapism that is almost entirely harmless -- and  
-often therapeutic. ​ The relative anonymity and safety of typing keys in the quiet dark of  
-your own den leads to a false sense of intimacy. ​ These people share not just their  
-innermost feelings, but often fantasies they would not dream of living out in the real  
-world, or even of revealing to their close friends and relatives. (Rickard 1992: 6) 
- 
-Like 976 telephone sex services, BBS adult chat-lines are fantasy dialogues. ​ The most  
-important difference, however, is not that the 976 service is aural and the BBS is typewritten, ​ 
-but rather that the 976 service features a paid employee at one end of the line and a customer at  
-the other. ​ In the adult BBS chat-line, both parties are private individuals who have consented to  
-communicate with each other. ​ Their BBS membership or subscription does not pay for the  
-service'​s employee to whisper sultry suggestions but rather provides access to a space where  
-like-minded adults have chosen to congregate so as to converse with each other. 
- 
- 
- 
-DEALING WITH OBSCENITY ​ 
- 
-To understand how law enforcement and the judicial systems deal with obscenity, we must start  
-with the legal framework at the federal, provincial, and municipal levels of government. ​ This  
-section also describes a sample of recent police actions and discusses the problems of  
-enforcement with respect to obscenity in traditional media and with regard to the distinctive ​ 
-challenges posed by computer-based pornography. 
- 
-Legal Framework ​ 
- 
-In Canada, the legislative response to obscenity can be divided into three main phases which  
-correspond to the following boundaries: 
- 
- (1) the 1897 Criminal Code and the Hicklin test; 
- (2) the 1959 Criminal Code and the Supreme Court cases of Brodie, Dansky and  
-Rubin v. R (1962) and Dominion News and Gifts Ltd v. R. (1963); 
- (3) the proclamation of the Canadian Charter of Rights & Freedoms in 1982 and the  
-1992 Supreme Court decision in R v. Butler. 
- 
-According to W. H. Charles, "The first Canadian statutory provisions relating to obscene ​ 
-publications appeared in section 179 of the Criminal Code of 1892" (Charles 1966: 244) which  
-provided that the public sale or exposure for sale of any obscene book or printed matter would  
-constitute an indictable offence. ​ The 1892 Criminal Code did not, however, contain a definition ​ 
-of the term "​obscene"​. ​ Lacking any statutory definition of obscenity (until the Criminal Code  
-was revised by statute in 1959), the Canadian courts relied almost entirely on the definition put  
-forward in an 1868 British case, Regina v. Hicklin. ​ At that time, Lord Chief Justice Cockburn ​ 
-wrote: 
- 
-... I think the test of obscenity is this, whether the tendency of the matter charged as  
-obscenity is to deprave and corrupt those whose minds are open to such immoral ​ 
-influences, and into whose hands a publication of this sort may fall.  (LR 3 QB 360  
-(1868) in Copp & Wendell 1983: 326) 
- 
-Although instrumental in British, Canadian, Australian, and American jurisprudence for many  
-decades, the Hicklin test was criticized regularly by legal scholars, lawyers and judges. ​ One of  
-the most damaging criticisms is that "the test requires a subjective, speculative evaluation by the  
-judge of the corrupting and depraving tendencies of the material (whatever this may mean), ​ 
-upon a group of unknown readers"​ (Charles 1966: 245).   In addition, there have been a  
-number of objections raised with respect to demarcating the boundary of obscenity based on  
-purported vulnerability of a peculiar class of victims, namely, "those whose minds are open to  
-such immoral influences." ​ This establishes a very restrictive standard by which, for example, ​ 
-works of literature could be prohibited because they are not suited to children or emotionally ​ 
-unstable persons. ​  In American law, the Hicklin rule was curbed in the landmark obscenity ​ 
-case concerning James Joyce'​s Ulysses (United States v. One Book Called "​Ulysses"​ (1933), 5  
-Fed. Supp. 182).  This case also pinpointed another failing of the Hicklin test   that it could be  
-applied in such a way that isolated passages in a book are taken out of context and, on the basis  
-of those passages, the entire publication declared obscene (Charles 1966: 245-246). ​ The focus  
-on textual fragments would ignore the work as a whole and any redeeming social, artistic, or  
-scientific value. ​ 
-Canadian law would have to wait until the early 1960s before these deficiencies in the Hicklin ​ 
-rule were explicitly remedied. ​ The circumstances which led to this change began with the 1952- 
-1953 Senate Hearings of the Special Committee on Sale and Distribution of Salacious and  
-Indecent Literature (Charles 1966: 250-260). ​ One of the individuals who testified before the  
-Committee was Mr. D. E. Fulton, who for the next four years, as a member of the Opposition ​ 
-in the House of Commons, continued to push for a clearer definition of obscenity. ​ It was not  
-until the election in 1957, which granted a victory to the Conservative Party, that Mr. Fulton, ​ 
-now the newly appointed Minister of Justice, could pursue his campaign. 
- 
-The first statutory definition of obscenity was provided when Bill C-58 redefined the Criminal ​ 
-Code provisions in 1959.  The amendment to the Criminal Code introduced a definition based  
-on the "undue exploitation of sex"​. ​ At that time designated Section 150 (now 163), the  
-statutory formula states that "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."​ 
- 
-It was not long before a crucial decision with respect to obscenity was reached by the Supreme ​ 
-Court. ​ In the case of Brodie, Dansky and Rubin v. R., the Supreme Court determined that D.  
-H. Lawrence'​s novel, Lady Chatterley'​s Lover, was not obscene. ​ C.S. Barnett commented: ​ 
- 
-Although it has not been regarded as binding in other aspects because it does not  
-represent a majority opinion of the Supreme Court of Canada, Justice Judson'​s ​ 
-judgements in Brodie has definitely established certain propositions which have not been  
-subsequently challenged or contradicted,​ namely: (1) The undue exploitation need not be  
-the most, or only, dominant characteristic of the work so long as it is a dominant ​ 
-characteristic of the whole work and not merely a dominant characteristic of particular ​ 
-parts or aspects of the work regarded in isolation or out of context. ​ (2) The author'​s ​ 
-purpose and the actual artistic merit of the work are both relevant to both "​dominant ​ 
-characteristic"​ and "undue exploitation"​. ​ Furthermore,​ prevailing community standards ​ 
-are relevant to "​undueness"​. ​ (Barnett 1969/70: 12) 
- 
-A similar conclusion was reached two years later with respect to what in the Sixties were called ​ 
-"​girlie magazines"​ (the case centred on two magazines, one called Escapade and the other called ​ 
-Dude). ​ The Supreme Court overturned the majority decision by the Manitoba Court of Appeal ​ 
-in Dominion News and Gifts, (1962) Ltd. v. R. (1963) and sided instead with the dissenting ​ 
-Judge Freedman. 
- 
-The third and most recent phase in the judicial handling of obscenity was inaugurated on April  
-17, 1982, when the Charter of Rights and Freedoms was proclaimed in force. ​ Of particular ​ 
-relevance to obscenity are the fundamental freedoms guaranteed by section 2.b of the Charter: ​ 
-"​freedom of thought, belief, opinion and expression, including freedom of the press and other  
-media of communication." ​ The Charter soon had a number of impacts on obscenity related ​ 
-matters. ​ For example, on March 31, 1983, the Ontario Divisional Court ruled that the power  
-of the Ontario Censor Board (now called the Ontario Film Review Board) to order deletions ​ 
-from movies or to ban certain motion pictures entirely was an unreasonable limitation on the  
-freedom of expression guaranteed under the Charter. ​ The Ontario Court of Appeal ​ 
-subsequently upheld this decision. ​ Another Charter case arose with respect to the Customs ​ 
-Tariff which was still explicitly using a Hicklin test: 
- 
-Under the Customs Tariff, customs officials were, until 1985, empowered to forbid entry  
-into Canada of material of an "​immoral or indecent"​ character, as determined by  
-reference to community standards; ​ the scope of those words was wider than that of  
-"​obscenity"​. ​ Thus a broader range of materials could be kept out of the country by  
-administrative action than by criminal prosecution. ​ On 14 March 1985, however, the  
-Federal Court of Appeal found that this provision was too vague to be compatible with  
-the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms ​ 
-and, therefore, was of no force or effect. ​ The Customs Tariff was subsequently amended ​ 
-to change the reference in the schedule to materials "​deemed to be obscene"​ under  
-subsection 163(8) of the Code, or found to be hate propaganda under section 320(8).  ​ 
-(Robertson 1994: 6) 
- 
-The most significant recent finding, however, was the February 27, 1992, Supreme Court of  
-Canada decision in R. v. Butler. ​ At issue was the constitutionality of the obscenity provisions ​ 
-in the Criminal Code.  The Court concluded that although Section 163(8) infringes on Section ​ 
-2(b) of the Charter, it can be demonstrably justified under Section 1 of the Charter which  
-"​guarantees the rights and freedoms set out in it subject only to such reasonable limits ​ 
-prescribed by law as can be demonstrably justified in a free and democratic society."​ 
- 
-Judge Sopinka'​s decision contains an assessment of the judicial interpretation of Section 163(8) ​ 
-of the Criminal Code.  If a work is obscene, "the exploitation of sex in a work must not only be  
-its dominant characteristic,​ but such exploitation must be '​undue'"​ ([1992] 1 S.C.R., p.475).  ​ 
-The most important test for whether the exploitation of sex is "​undue"​ is the community ​ 
-standard of tolerance test.   This test "is concerned not with what Canadians would not tolerate ​ 
-being exposed to themselves, but with what they would not tolerate other Canadians being  
-exposed to" ([1992] 1 S.C.R., p.475). ​   
- 
-The 1992 Supreme Court decision specifies how the community tolerance test relates to the  
-Criminal Code: 
- 
-The courts must determine as best they can what the community would tolerate being  
-exposed to on the basis of the harm that may flow from such exposure. ​ Harm in this  
-context means that it predisposes persons to act in an anti-social manner.... Anti-social ​ 
-conduct for this purpose is conduct which society formally recognizes as incompatible ​ 
-with its functioning.... ​ The stronger the inference of a risk of harm, the lesser the  
-likelihood of tolerance.... 
- 
-... the portrayal of sex coupled with violence will almost always constitute the undue  
-exploitation of sex.  Explicit sex which is degrading or dehumanizing may be undue if the  
-risk of harm is substantial. ​ Finally, explicit sex that is not violent and neither degrading ​ 
-nor dehumanizing is generally tolerated in our society and will not qualify as the undue  
-exploitation of sex unless it employs children in its production.  ​ 
- 
-If material is not obscene under this framework, it does not become so by reason of the  
-person to whom it is or may be shown or exposed nor by reason of the place or manner ​ 
-in which it is shown. ​ The availability of sexually explicit materials in theatres or other  
-public places is subject to regulation by competent provincial legislation. ​ Typically such  
-legislation imposes restrictions on the material available to children. ​  ​([1992] 1 S.C.R., ​ 
-485) 
- 
-This last clause suggests that if computer bulletin boards had sexually explicit material which "​is ​ 
-not violent and neither degrading nor dehumanizing"​ then it would not be regarded as obscene ​ 
-even if teenagers could access the material. ​ Material does not become obscene "by reason of  
-the person to whom it is or may be shown." ​ Nor can it be viewed in isolation; sexually explicit ​ 
-material may be exempt according to the "​internal necessities"​ test: 
- 
-The portrayal of sex must then be viewed in context to determine whether undue  
-exploitation of sex is the main object of the work or whether the portrayal of sex is  
-essential to a wider artistic, literary or other similar purpose. ​ The court must determine ​ 
-whether the sexually explicit material when viewed in the context of the whole work  
-would be tolerated by the community as a whole. ​ Any doubt in this regard must be  
-resolved in favour of freedom of expression. ([1992] 1 S.C.R., 454-455) 
- 
-Through case law, the boundaries of obscenity and the relation between both purviews and  
-levels of responsibility continue to be defined: 
- 
-In October 1993, the Ontario Court of Appeal ruled that the definition of obscenity is  
-limited in order to capture only material that creates a substantial risk of harm.  ​ 
-Moreover, the fact that films or videos have been approved by a provincial agency such  
-as the Ontario Film Review Board, while relevant in terms of community standards, does  
-not amount to a lawful justification or excuse for their content, or a bar to prosecution. ​ 
-(R. v. Hawkins (1993), 15 O.R. (3d) 549). The Supreme Court of Canada agreed in  
-April 1994 to hear an appeal of this case.    (Robertson 1994: 14) 
- 
-As this brief review indicates, it is important to acknowledge that the Canadian legislative and  
-judicial response to obscenity has been steadily evolving and responding to social change for  
-more than a century. ​ There is now a substantial body of case law which provides the  
-parameters for conducting both the prosecution and defence of books, magazines, and videos ​ 
-deemed to be obscene. ​ Although this body of knowledge and the legal processes which enact it  
-have been explicitly developed for traditional mass media, they can nonetheless guide us in  
-dealing with computer-based or on-line manifestations of obscenity. 
- 
-Police Actions ​ 
- 
-There are a variety of mechanisms which enforce the laws pertaining to obscenity. ​ The RCMP,  
-various provincial police forces (some with special task forces such as Project P set up by the  
-Ontario Provincial Police) and municipal police investigate cases of obscenity. ​ The number of  
-cases is actually fairly low and the number of convictions even lower. ​  Some of the  
-complications which arise in law enforcement activities regarding obscene material are evident ​ 
-from the following two cases: 
- 
-In April, 1991, police forces in 14 municipalities,​ acting on instructions from the Ontario ​ 
-Provincial Police antipornography unit, raided 22 Adults Only stores across the province ​ 
-and seized 10 tapes from each.  Despite the film board'​s approval of the videos, ​ 
-Jorgensen was convicted on charges of distributing obscene material in Hamilton and  
-Scarborough. ​ He has appealed both decisions. ​ Courts in some other municipalities ​ 
-acquitted him, some police forces dropped the charges, and a few cities are awaiting the  
-outcomes of the appeal before deciding whether to proceed. ​ Jorgensen is also facing a  
-charge in Winnipeg based on a police seizure of nine tapes in June, 1992.  (Jenish 1993:  
-55) 
- 
-In September 1991, Toronto police seized sexually explicit videotape as being obscene.  ​ 
-Two people were charged with various criminal counts of owning and distributing ​ 
-obscene material, notwithstanding the fact that the tapes had been viewed and cleared by  
-Ontario'​s Film Review Board. ​ This incident highlights the differences between the  
-federal and provincial laws.  It also illustrates the problems of enforcement of the  
-obscenity provisions when some provinces adopt a more lenient attitude than others and  
-the difficulties and unpredictability inherent in the "​community standards"​ test.  ​ 
-(Robertson 1994: 13) 
- 
-There are two significant police actions pertaining to the use of computer bulletin boards to  
-distribute pornography. ​ On May 20, 1993, the Winnipeg Police raided eight computer bulletin ​ 
-boards located in the homes of six adult males and two male juveniles. ​ Another operation was  
-undertaken in the fall of 1993, when the Metro Toronto Police raided 10 homes in a crackdown ​ 
-of pornography on computer bulletin boards. ​ Research is under way to ascertain the details of  
-these incidents, whether they went to trial and, if so, the outcome of the trials. 
- 
-We have seen a fairly unstable picture emerge with respect to a medium such as videotape, ​ 
-which has had more than a decade (plus a long motion picture history) to establish rules, ​ 
-procedures and mechanisms for dealing with obscenity. ​ The situation is even more inchoate if  
-we turn to the problem of obscene material on computer bulletin boards. 
- 
-Problems of Enforcement ​ 
- 
-With respect to controlling violations which arise from traditional pornography,​ there are two  
-main obstacles. ​ First, various bodies at the federal, provincial, and municipal levels have  
-jurisdiction which can lead to confusion among law enforcement and public alike. ​ Secondly, ​ 
-there are indicators that the arrest rate for obscenity charges is low compared to other vice  
-crimes. ​ The conviction rate is even lower. ​ Boyd, in one of the few long term empirical ​ 
-studies, summarizes: 
- 
-The criminal enforcement of obscenity does not appear to be a particularly large  
-enterprise of control. Less than 300 Canadians are charged each year with the offence; ​ 
-those convicted are invariably fined for their conduct [instead of being sentenced to  
-imprisonment]. ​ (Boyd 1984: 67) 
- 
-We must bear in mind that these figures pertain to obscenity charges in all media (film, video, ​ 
-books, magazines, live performance,​ and paraphernalia). 
- 
-As long as one is dealing with tangible media (such as pornographic CD-ROMs), the problems ​ 
-arising from computer-based pornography are similar to those regarding books, magazines or  
-videos. ​ A completely new set of difficulties,​ however, arises with material distributed over  
-computer networks. ​ The problem of detection, for instance, cannot be overcome technically ​ 
-without massive social surveillance -- an untenable option because it would violate the privacy ​ 
-of individuals on a scale intolerable in Canada. ​ Bulletin boards are easy to set up and difficult ​ 
-to track down, particularly if the BBS is operating covertly rather than publicly. ​ A private BBS  
-with adequate login security could engage in illicit activity which no one would know about  
-except the users.  ​ 
- 
-The maxim "bits know no boundaries"​ highlights both the problems of detection and problems ​ 
-of prosecution. ​ Transborder flows of information in the form of satellite transmission and  
-telecommunications traffic are virtually impossible to monitor and even more laborious to  
-obstruct. ​ Satellite transmissions have already created questions of whether a law is being  
-transgressed in one country but not in another (e.g., a pornographic television channel intended ​ 
-to serve one European country could also be received in another).  ​ 
- 
-International computer networking leads to similar enforcement difficulties. ​ Assume that a  
-Canadian operates an Internet server or a BBS located in another country. ​ Except for any  
-physical on-site problems (for which local arrangements could be made), it would be quite  
-feasible to maintain the site over a telephone line or a computer network even though it was  
-thousands of miles away.  Canadian laws regarding obscenity could be flouted. ​ Consider ​ 
-another, probably more common, example. ​ Messages could be posted to a newsgroup by an  
-individual in another country and distributed to a Usenet host in Canada. ​ An identical dilemma ​ 
-occurs with respect to the uploading of files to an online ftp archive. ​ Assuming that the culprit ​ 
-could be identified -- a not inconsequential problem -- it may be difficult to actually prosecute ​ 
-the individual. ​  ​Serious challenges to law enforcement are posed by both the jurisdictional ​ 
-difficulties (provincial,​ inter-provincial,​ international) and the co-ordination of law enforcement ​ 
-agencies such as the RCMP, provincial police, and municipal police. ​ 
- 
-Controlling Access to On-line Pornography ​ 
- 
-USENET already provides a number of means of restricting local user access. ​ If they wish, the  
-operators of publicly accessible USENET hosts could refrain from carrying certain adult- 
-oriented newsgroups or, like Prodigy Services Co., only grant Internet access to children if they  
-have received parental consent. ​ Individuals can also exercise control simply through their  
-choice of newsgroup subscription. ​ These safeguards could be enhanced further by using  
-technological controls. ​ Nearly every newsreader comes with a "​kill-file"​ option that allows ​ 
-users to set the software to automatically delete messages based on (i) origin, (ii) subject line, or  
-(iii) words contained in the message. ​ Unfortunately,​ many people are unaware of these  
-capabilities. ​ Some members of the community may be aware but share the common problem of  
-having difficulty programming a VCR -- for them, customizing a newsreader can be a daunting ​ 
-task.  A range of options should be available to meet the expanded Internet community. 
- 
-Newsreader programs could be equipped with password controls and the like so that  
-unsupervised children could not subscribe to additional newsgroups. ​ Only a parent or teacher ​ 
-with the correct password could add any additional newsgroups. ​ Measures of this sort are  
-becoming more common. ​ For example, "​Jostens Inc. recently released software for schools ​ 
-that allows teachers to block electronic bulletin boards that contain pornographic pictures" ​ 
-(Sandberg 1995: B2). 
- 
-"​Gopher"​ servers used for browsing by special audiences such as school children, could be  
-customized with built-in constraints to restrict searches. ​ Such controls would curb neophyte ​ 
-extravagance;​ although an enterprising explorer, by connecting from one gopher to another, ​ 
-could eventually gain access to material that was screened out at the local site.  Even this sort of  
-activity is not unmanageable if one judges by Surfwatch Software Inc.'s solution recently ​ 
-described in the Wall Street Journal: 
- 
-Surfwatch'​s [vice-president of marketing] Mr. Friedland said that the software contains ​ 
-the Internet addresses of computers storing sexually explicit material, blocking a user'​s ​ 
-attempt to access those computers. ​ But such porno-troves often are a moving target: once  
-users find out about them, those computers tend to get overwhelmed by traffic, shut  
-down and move elsewhere on the network and take a new address. 
- 
-To counter that problem, Surfwatch will charge users a subscription fee for software ​ 
-updates that include new offending Internet addresses. ​ The company is using a database ​ 
-to search the Internet for words such as "​pornography"​ and "​pedophilia"​ and make a list  
-of Internet sites, which won't be visible to users. ​ That's no easy feat, said Mr.  
-Friedland, because "​pedophilia is spelled like four different ways." ​ He added, "​People ​ 
-often ask us if we'll sell that list.  We're not going to." ​ (Sandberg 1995: B2) 
- 
-One of the most promising areas for introducing control mechanisms are adaptive filters, ​ 
-sometimes called "​know-bots"​ or artificial agents. ​ The idea of filtering the many megabytes of  
-daily USENET feed crossed the line from daydream to reality when Stanford University'​s ​ 
-Department of Computer Science made accessible a Netnews Filtering Server ​ 
-(netnews@db.stanford.edu). ​ As their February 1994 announcement states: 
- 
-A user sends his profiles to the service, and will receive news articles relevant to his  
-interests periodically. Communication to and from the service is via e-mail messages. 
- 
-A user's profile is, in the style of WAIS ... queries, just a plain piece of English text;  
-e.g., "​object oriented programming,"​ or "nba golden state warriors basketball." ​ Based  
-on the statistical distributions of the words in the articles, scores are given to evaluate ​ 
-how relevant they are to a profile. ​ The highest possible score given to an article ​ 
-document is 100.  The user can specify the minimum score for an article to be delivered.  ​ 
-(tyan@cs.stanford.edu,​ February 1994) 
- 
-This approach is interesting for two reasons. ​ First and foremost is its main function: to filter ​ 
-through USENET looking for articles that match a profile defined by a specific individual.  ​ 
-Second, is the fact that the filter is adaptive: an individual can send the server feedback. ​ This  
-type of feedback helps the program to fine-tune its profile search, making it more efficient at  
-fulfilling personalized requests. 
- 
-Although the Netnews Filtering Server is currently used to search for articles, there is no reason ​ 
-in principle why it could not be modified to screen out offensive or inappropriate messages. ​ If  
-an individual does not wish to receive USENET articles on particular topics or dealing with  
-certain kinds of subject matter not subscribing to a newsgroup is obviously the first line of  
-defense. ​ A software filter would provide an added layer of protection by intercepting messages ​ 
-from self-styled propagandists or miscreants who cross-post messages outside designated ​ 
-newsgroups (for example, a message intended for the consensual sexual discourse of  
-alt.sex.incest could be maliciously cross-posted to alt.abuse-recovery). 
- 
-Just as Stanford'​s adaptive filter can handle hundreds of individual profiles, a similar filter at a  
-USENET host-site could operate with hundreds and eventually thousands of user profiles.  ​ 
-Those who chose to receive adult-oriented material could provide proof of age and have their  
-profile adjusted accordingly. ​ The adaptive filter, however, could selectively screen out posted ​ 
-messages so that children for whom such material would be inappropriate or adults who find  
-such material objectionable would not be exposed to offensive content. ​ 
- 
-It is also be feasible for individuals to install newsfilters and similar software monitoring ​ 
-programs on their home PCs rather than having to rely on the facilities of an information ​ 
-provider. ​ A Vancouver software developer is currently marketing a product called Net Nanny  
-which is an alphanumeric input-output scanner with password protection and other features: 
- 
-The program works along side operating systems but without the knowledge of those one  
-may wish to protect. ​ First a parent selects and inputs information into Net Nanny'​s ​ 
-dictionary, like adult-content bulletin board service'​s (BBS) access numbers, explicit ​ 
-words or phrases and personal information such as children'​s names, addresses, phone  
-numbers or any other information to be kept private. ​ If any of these are typed on the  
-PC's keyboard, or received during a data conversation a "​hit"​ is registered, logged and if  
-desired, the keyboard locks-up and the system automatically shuts down.  The system ​ 
-cannot be disengaged without utilizing the Net Nanny administration program. ​ A variety ​ 
-of security functions are also provided. ​ (fax from Net Nanny Inc.) 
- 
-These technological approaches support individual freedom and responsibility. ​ Arguing that the  
-government should shut down adult-oriented bulletin boards just because an eight-year old can  
-use a computer is analogous to saying that the sale of alcohol should be banned because children ​ 
-know how to use bottle-openers. ​ Those who choose to have a liquor cabinet at home or keep  
-beer in the refrigerator will exercise parental responsibility. ​ Similarly, the responsible use of  
-computers begins in the home.  Given the decentralized structure of the Internet, bits and bytes  
-are virtually impossible to control completely whether by technological or legislative means. ​ In  
-their pamphlet on "Child Safety on the Information Highway",​ the National Centre for Missing ​ 
-and Exploited Children states: 
- 
-The best way to assure that your children are having positive online experiences is to stay  
-in touch with what they are doing. ​ One way to do this is to spend time with your  
-children while they'​re online. ​ Have them show you what they do and ask them to teach  
-you how to access the services. 
- 
-While children and teenagers need a certain amount of privacy, they also need parental ​ 
-involvement and supervision in their daily lives. ​ The same general parenting skills that  
-apply to the "real world" also apply while online. 
-If you have cause for concern about your children'​s online activities, talk to them.  Also  
-seek out the advice and counsel of other computer users in your area and become familiar ​ 
-with literature on these systems. ​ Open communication with your children, utilization of  
-such computer resources, ​ and getting online yourself will help you obtain the full  
-benefits of these systems and alert you to any potential problem that may occur with their  
-use.  (NMEC 1994) 
- 
-Just as we street-proof our children so that they can play outside safely, we must also teach our  
-children some basic rules so they can be safeguarded when exploring the information highway.  ​ 
- 
- 
- 
- 
-CHILD PORNOGRAPHY:​ EXTENT OF THE PROBLEM ​ 
- 
-One of the first comprehensive investigations of child pornography in Canada was conducted by  
-the Committee on Sexual Offences against Children and Youths (the Badgley Committee). ​ Its  
-August 1984 report concurred with a recent investigation by the Department of Justice which  
-concludes that "child pornography is neither professionally made nor commercially produced in  
-Canada ... it is `homemade'​ by paedophiles who have communication networks and exchange ​ 
-clubs." ​ The amount of child pornography entering Canada appears to be quite small. ​ Revenue ​ 
-Canada (Customs and Excise) data on seizures and detentions of prohibited materials from  
-January 1986 to November 1990 indicates that only 1.3% of almost 39,000 enforcement actions ​ 
-involved child pornography. 
- 
-While society at large adopts a zero-tolerance attitude toward child pornography,​ there are very  
-small pockets of support for paedophilia. ​ NAMBLA (North American Man-Boy Love  
-Association) is a U.S. organization headquartered in New York that advocates consensual sex  
-between male adults and male minors. ​ The organization distributes a publication called the  
-NAMBLA Bulletin. ​ In the June 1990 issue of Rites it was reported that NAMBLA had  
-approximately 500 members and the Bulletin had a readership of about 1100, some of which  
-were reported to live in Canada.  ​ 
- 
-Although many countries make the production and distribution of child pornography illegal, the  
-possession of such material is not universally prohibited. ​ In Denmark, Finland, and Sweden for  
-example, possession of child pornography is legal. ​  ​Amendments to criminalize possession ​ 
-have recently been introduced in Canada, Germany, Norway, the United States and the United ​ 
-Kingdom. ​ The international dimension has been highlighted by The Ottawa Citizen: 
- 
-In March 1993, an international porn bulletin board ring was silenced with simultaneous ​ 
-raids in the U.S. and Denmark. 
- 
-Earlier this month, an FBI hacker discovered a child pornography archive at Birmingham ​ 
-University in England. ​ It was accessible via bulletin boards in 160 countries when police ​ 
-closed it down and arrested a university researcher. ​ (Abraham 1994) 
- 
-In the United States, child pornography does not receive First Amendment protection (Federal ​ 
-statute: 18 USC 2252). ​ Whereas the body of case law regarding child pornography has been  
-developing for many years (for example, New York v. Ferber, 458 U.S. 747 [1982]), law  
-enforcement and the courts have only recently begun to turn toward computer-mediated ​ 
-instances. ​ A number of computer bulletin boards, for example, were raided for child  
-pornography in December 1993: charges were laid against the sysop of a BBS in North Carolina ​ 
-(CU Digest, #5.94) and in a separate incident against another in Medford, Massachusetts (CU  
-Digest, #6.02). 
- 
-The following testimony of police detective Norren Wolff, before a House of Commons ​ 
-committee on crime prevention, illustrates some of the Canadian enforcement problems related ​ 
-to child pornography prior to 1993 Criminal Code amendments. ​ While executing a warrant on  
-a suspected sexual offender, Wolff retrieved copies of NAMBLA'​s Bulletin, a Dutch paedophile ​ 
-magazine, Paedika, and publications from the U.S.-based Rene Guyon society. ​ When charges ​ 
-were not laid, the publications were returned to the individual. ​ According to Wolff: "​the ​ 
-photographs in the NAMBLA magazine are not in themselves pornographic and there'​s really ​ 
-nothing (in the Criminal Code) covering the written word, so I think we would have trouble ​ 
-getting a conviction"​ ("Ban on pedophilic publications demanded"​. Vancouver Sun. January 21,  
-1993, A3). 
- 
-On August 1, 1993, the Criminal Code was amended to include provisions making child  
-pornography an offense. ​ It defines child pornography as: 
- 
-(a) a photographic,​ film, video or other visual representation,​ whether or not it was made  
-by electronic or mechanical means, 
- 
- (i) that shows a person who is or is depicted as being under the age of  
-eighteen years and is engaged in or is depicted as engaged in explicit sexual ​ 
-activity, or 
- (ii) the dominant characteristic of which is the depiction, for a sexual ​ 
-purpose, of a sexual organ or the anal region of a person under the age of eighteen  ​ 
-years; or 
- 
-(b) any written material or visual representation that advocates or counsels sexual activity ​ 
-with a person under the age of eighteen years that would be an offence under this Act.  ​ 
-(Section 163.1) 
- 
-The new amendments to the Criminal Code not only prohibit the production, distribution and  
-sale of child pornography but in addition make possession of such material a criminal offence. 
- 
-Although Canadian owners of computer bulletin boards have been charged under obscenity ​ 
-provisions, preliminary research indicates that only a few Canadian systems operators have been  
-charged under the child pornography provisions of Section 163.1 of the Criminal Code.  One of  
-the more controversial cases involves a March 1995 search warrant sanctioning law enforcement ​ 
-action against a couple of hobby bulletin boards in Vancouver (a court date has been set for  
-May 31, 1995). ​  The media have reported a number of other recent cases, for example the  
-May 22, 1995 Maclean'​s relates: 
- 
-In Calgary last month, police say they discovered a trove of kiddie porn in the home of a  
-man who had already been charged with sexual assault and sexual contact with a child.  ​ 
-"We seized several dozen videotapes, written communication and computer disks, and it  
-all depicted child pornography,"​ says Staff Sgt. Fred Bohnet, who is in charge of the  
-child abuse unit of the Calgary Police Department. ​ The evidence, he adds, indicates a  
-national and international child pornography ring operating from computers in Canada, ​ 
-the United States and Europe. ​ Alan Norton, 52, has pleaded not guilty to 51 charges of  
-possession of child pornography,​ in addition to the sexual assault and contact charges. ​   
-(Chidley 1995: 58) 
- 
-Given that the new child pornography provisions have only been in effect for less than two  
-years, it is evident that it is still too early to assess their impact on the online world. 
- 
- 
- 
- 
- 
- 
-HARASSMENT 
- 
-Harassment covers many forms of offensive behaviour including -- but not limited to --  
-unwelcome communication. ​  ​Harassment has been defined as an abusive attempt to assert ​ 
-power over another person. ​ It can be committed on the basis of race, marital status, age and  
-national or ethnic origin. ​ Some people are harassed because of their political or religious ​ 
-beliefs, others because they have physical or mental disabilities. ​ In a society characterized by  
-sex-stratified divisions of power, probably the most pervasive form of harassment is the sexual ​ 
-harassment of women. 
- 
-As was discussed earlier with regard to obscenity and new media, the problems of our face-to- 
-face inter-personal world are being carried over into cyberspace. ​ Preliminary investigations ​ 
-have shown that there are a number of different forms of online and computer-based harassment ​ 
-including various forms of offensive e-mail, "​net-stalking"​ and computer-mediated harassment ​ 
-in public places (such as displaying pornographic images on computer monitors in classrooms ​ 
-or offices). ​ If we are to understand the nature of computer-based harassment and potential ​ 
-solutions for controlling it, we must have a solid foundation in the existing laws and instruments ​ 
-already in place. 
- 
-Over the past twenty years, extensive mechanisms for legal recourse have been established at  
-the federal, provincial and local levels of government. ​ The Canadian Human Rights Act is an  
-anti-discrimination law which was adopted in 1977 and took effect in March 1978.  Section 3 of  
-the Act declares the prohibited grounds of discrimination to be: "race, national or ethnic origin, ​ 
-colour, religion, age, sex, marital status, family status, disability and conviction for which a  
-pardon has been granted." ​ Harassment is made illegal under Section 14 of the Act: 
- 
-(14) (1) It is a discriminatory practice, 
- (a) in the provision of goods, services, facilities ​ 
-or accommodation customarily available to the general public, 
- (b) in the provision of commercial premises or  
-residential accommodation,​ or 
- (c) in matters related to employment, 
- to harass an individual on a prohibited ground of discrimination. 
- 
-(2) Without limiting the generality of subsection (1), sexual harassment shall, ​ 
-for the purposes of that subsection, be deemed to be harassment on a  
-prohibited ground of discrimination. 
- 
-The act applies to all federal government departments and agencies, Crown corporations,​ and  
-businesses and agencies under federal jurisdiction. ​ Provincial human rights laws provide ​ 
-protection in those areas which are not under federal jurisdiction. 
- 
-If harassment takes place at work, victims can file complaints with their employer or their  
-union. ​ Under many circumstances,​ victims can also register complaints with the Canadian ​ 
-Human Rights Commission. ​ The Commission received 208 harassment complaints in 1992;  
-"​approximately 63 percent or 128 actual cases were for sexual harassment"​ (Falardeau-Ramsay ​ 
-in Geller-Schwartz 1994: 46). 
- 
-There have been a number of significant Canadian Supreme Court cases pertaining to  
-harassment. ​ For example, Robichaud v Canada (Treasury Board) established the responsibility ​ 
-of an employer for an employee'​s unauthorized discriminatory acts in the workplace. ​  In his  
-1987 decision, Judge La Forest explained that: 
- 
-... the Act... is not aimed at determining fault or punishing conduct. ​ It is remedial. ​ Its  
-aim is to identify and eliminate discrimination. ​ If this is to be done, then the remedies ​ 
-must be effective, consistent with the "​almost constitutional"​ nature of the rights ​ 
-protected. ​ ([1987] 40 D.L.R. (4th), 581) 
- 
-... I would conclude that the statute contemplates the imposition of liability on employers ​ 
-for all acts of their employees "in the course of employment",​ interpreted in the  
-purposive fashion outlined earlier as being in some way related or associated with the  
-employment. ​ It is unnecessary to attach any label to this type of liability; it is purely ​ 
-statutory. ​ ([1987] 40 D.L.R. (4th), 584) 
- 
-The decision in Robichaud also indicated that if an employer is held liable, the degree of redress ​ 
-would be balanced by such factors as whether there was an explicit company policy regarding ​ 
-sexual harassment, whether there were procedures in place to handle complaints, and so on.  
-Another important Canadian Supreme Court decision pertaining to sexual harassment was  
-reached in Janzen v. Platy Enterprises Ltd. (1989). ​ The issue before the Court was whether ​ 
-sexual harassment in the workplace constituted discrimination on the basis of sex.  The original ​ 
-case had been tried in Manitoba where the province'​s Human Rights Act dealt explicitly with  
-discrimination on the basis of sex but not with sexual harassment. ​  A board of adjudication ​ 
-found that the appellants, Janzen and Godreau, had been victims of sex discrimination. ​ On  
-appeal, the Manitoba Court of Queen'​s Bench upheld the adjudicator'​s decision. ​ Platy  
-Enterprises appealed the decision to the Manitoba Court of Appeal ([1986] Dominion Law  
-Reports, 33 D.L.R. (4th), 32-71). ​ Agreeing with the employer, Huband J.A. decided that  
-"​Sexual harassment is not discrimination on the basis of sex under the terms of the Human  
-Rights Act" ([1986] 33 D.L.R. (4th), 33).  Similarly, Twaddle J.A. concluded, "There is no  
-legal duty on an employer to provide a workplace free of sexual harassment"​ ([1986] 33 D.L.R. ​ 
-(4th), 34).  The Supreme Court of Canada, however, set aside the judgement of the Court of  
-Appeal of Manitoba and restored the judgement of the Manitoba Court of Queen'​s Bench. ​ In  
-his decision, Chief Justice Dickson formulated an important definition: ​ 
- 
-... sexual harassment in the workplace may be broadly defined as unwelcome conduct of  
-a sexual nature that detrimentally affects the work environment or leads to adverse job- 
-related consequences for the victims of the harassment. ​ It is, as Adjudicator Shime  
-observed in Bell v. Ladas ..., and as has been widely excepted by other adjudicators and  
-academic commentators,​ an abuse of power. ​ When sexual harassment occurs in the  
-workplace, it is an abuse of both economic and sexual power. ​ Sexual harassment is a  
-demeaning practice, one that constitutes a profound affront to the dignity of the  
-employees forced to endure it.  By requiring an employee to contend with unwelcome ​ 
-sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the  
-dignity and self-respect of the victim both as an employee and as a human being. ([1989] ​ 
-1 S.C.R., 1284) 
- 
-Although reservations have been expressed as to whether this definition of sexual harassment is  
-broad enough to capture all gender-based harassment, the Supreme Court'​s decision does have  
-the effect of prohibiting sexual harassment as defined in all jurisdictions in Canada. ​ With this  
-background, we can now turn to computer-mediated forms of harassment. 
- 
- 
-COMPUTER-MEDIATED HARASSMENT ​ 
- 
-The Canadian university crackdown on USENET'​s alt.sex in the spring and summer of 1992  
-has often been cast in terms of freedom of expression versus censorship. ​ The response by the  
-University of British Columbia Task Force, however, indicated that the problem could be  
-repositioned. ​ Among the most frequently reported incidents said to have kindled the crackdown ​ 
-were those that would appear to be less the dissemination of obscenity than flagrant instances of  
-sexual harassment. ​  To quote a Globe & Mail article, a University of Manitoba ​ 
-women'​s-centre worker named Danishka Esterhazy: 
- 
-... said a female student could walk into a computer laboratory and find a picture of a  
-woman being raped on the computer screen next to her, hear male students laughing as  
-they read about a woman being tortured, or be forced to wait at a computer printer while  
-a male student got a printout of an obscene photograph of a woman. ​ (Moon 1992) 
- 
-These are quite likely instances of harassment as can be gathered by referring to the  
-Introduction to the Canadian Human Rights Act, which explicitly includes among its examples ​ 
-of harassment the "​displaying of pornographic,​ racist or other offensive or derogatory pictures" ​ 
-(Canadian Human Rights Commission 1985: 23).  It does not matter whether the offensive ​ 
-image is indelibly inked on glossy magazine paper or projected on a computer monitor: ​ 
-displaying pornographic images in public places ​ is potentially a violation of the Canadian ​ 
-Human Rights Act.  
- 
-There is also an important distinction to be emphasized between attempts to control the problem ​ 
-using obscenity laws rather than human rights codes. ​ There is no reason to ban a USENET ​ 
-newsgroup that contains sexually explicit material which is not obscene under the Criminal ​ 
-Code.  Someone who persists, however, in displaying pornographic images on a computer ​ 
-monitor located in a public place such as an office, factory, university computer centre or  
-library is engaged in a discriminatory practice. 
- 
-One of the other forms of electronic harassment is offensive e-mail which, in certain respects, ​ 
-overlaps with the broad field of privacy. ​ Although the term "​offensive e-mail"​ could designate ​ 
-many things, the most serious corresponds less to the postal analogy of junk mail and more to a  
-disturbing telephone parallel -- obscene calls. ​ Telephone harassment is covered in part by the  
-Canadian Human Rights Act (for example, S.13 prohibits hate messages) as well as by S.372(3) ​ 
-of the Criminal Code which states: 
- 
-Every one who, without lawful excuse and with intent to harass any person, makes or  
-causes to be made repeated telephone calls to that person is guilty of an offence ​ 
-punishable on summary conviction. 
- 
-In addition to legal avenues, there are a variety of technical solutions available to anyone who  
-desires to block out e-mail being sent to them by particular individuals. ​ For example, those on  
-Unix systems using the elm mail program have a filter option. ​ There are also mail filtering ​ 
-programs such as procmail (available on many ftp sites). 
-Just as the most perilous form of sexual harassment is sexual assault, perhaps the most  
-dangerous form of electronic harassment is "net stalking"​. ​ Given the public'​s justifiable ​ 
-concern about "​sexual predators",​ it is not surprising that any case of computer networks being  
-used to stalk victims attracts media attention. ​ One of the rare cases of "net stalking"​ was  
-reported in papers across the continent, including The Ottawa Citizen which wrote: 
- 
-Police in Cupertino, California charged a 27-year-old engineer last month for an attack ​ 
-on a 14-year-old boy.  The accused, who called himself HeadShaver on the America ​ 
-Online computer network, had several online chats with the boy before luring him to  
-meet in person. 
- 
-Police allege HeadShaver tortured and raped the boy, then ordered him to write about the  
-experience online. ​ The boy's father discovered the electronic account and went to police, ​ 
-who have since been overwhelmed with phone calls about other "​HeadShavers"​ on the  
-Net.  (Abraham 1994)  
- 
-The immediacy of response, relative anonymity, and illusion of intimacy which sometimes ​ 
-characterizes communication via computer bulletin boards and chat lines occasionally induces ​ 
-many of us to lower our guard. ​ If those of us who perceive some of the risks still miscalculate, ​ 
-surely it is incumbent on us to empathize with those who are even more vulnerable. 
- 
-Just as we "​streetproof"​ our children, we should also teach them how to be safe on the  
-information highway. ​ Howard Rheingold'​s reflections are worth repeating: 
- 
-I bought an Internet account for my daughter when she was eight years old, so we could  
-exchange email when I was on the road.  But I didn't turn her loose until I filled her in  
-on some facts of online life.  "Just because someone sends you mail, you don't have to  
-answer them," I instructed her.  "And if anybody asks if you are home alone, or says  
-something to you that makes you feel funny about answering, then just don't answer until  
-you speak to me."​... 
- 
-Teach your children to be politely but firmly skeptical about anything they see or hear on  
-the Net.... Teach them that people are not always who they represent themselves to be in  
-email, and that predators exist. ​ Teach them to keep personal information private. ​ Teach  
-them to trust you enough to confide in you if something doesn'​t seem right. ​ (Rheingold ​ 
-1994: 95) 
- 
- 
- 
- 
-HATE PROPAGANDA 
- 
-Canada has enjoyed a well-deserved reputation as a tolerant society. ​ Yet racism and anti- 
-Semitism, with roots more ancient than our nation'​s birth, continue to exist within Canadian ​ 
-society. ​ Organized racist groups, often associated with extreme right-wing politics, are perhaps ​ 
-the most visible manifestation of racism and anti-Semitism. ​ There are a number of such groups ​ 
-in Canada, although membership is not large (Barrett documented 586 persons in the early  
-1980s with estimates running into the low thousands). ​ Among the main organizations are the  
-following: 
- 
-(i) Events in the 1970s (a revival of the Ku Klux Klan in the U.S. and the re- 
-emergence of fascist groups, particularly around Toronto) contributed to the  
-formation of the Canadian Knights of the Ku Klux Klan in 1980, spear-headed by  
-James Alexander McQuirter. ​ In Canada, the Klan had virtually disappeared since  
-the 1930s. ​ Its peak had been reached in the late 1920s when it had thousands of  
-members across the country and a particularly high concentration in Saskatchewan ​ 
-(1927 provincial estimates range between 10,000 and 40,000 members).  ​ 
-(ii) The white-supremacist Western Guard, which emerged out of the Edmund Burke  
-Society in Toronto in 1972, has been under the leadership of John Ross Taylor ​ 
-since 1976. 
-(iii) Donald Clarke Andrews, forbidden by court order to associate with the Western ​ 
-Guard (which he led from 1972-76) created the National Citizens Alliance, ​ 
-soon renamed the Nationalist Party. 
-(iv) Among the most recent groups to emerge is the Heritage Front which went public ​ 
-in November 1989, headed by Wolfgang Droege, who had been McQuirter'​s ​ 
-lieutenant in the Canadian KKK. 
-(v) There are a variety of other groups including the Canadian National Socialist ​ 
-Party, Concerned Parents of German Descent (its most prominent member being  
-Ernst Zundel) and the Aryan Nations (founded in the US by Richard Butler, its  
-Canadian branch is headed by Terry Long in Alberta). 
- 
-The first wave of post-World War Two hate propaganda in Canada occurred in the early 1960s  
-and prompted the government to constitute the Cohen Committee. ​ The Report of the Special ​ 
-Committee on Hate Propaganda in Canada (1966; aka the Cohen Report) remains one of the  
-most extensive analyses of the organized dissemination of hate in Canada. ​ The report focused ​ 
-on the spread of pamphlets and magazines: 
- 
-The current hate campaign dates from early 1963, when it began in the Toronto area.  ​ 
-Since then it has extended to several other centres in Ontario, and to at least seven other  
-provinces... From 1963 on there was and continues to be a steady dissemination of hate  
-propaganda, mainly anti-Jewish,​ anti-Negro and neo-Nazi in nature.... The printed, ​ 
-mimeographed and other written materials seem to be obtained in large measure, although ​ 
-not exclusively,​ from American sources. ​ In many instances it is mailed directly from  
-Arlington, Virginia, the headquarters of the American Nazi party and the World Union of  
-National Socialists, and from Birmingham, Alabama, the headquarters of the National ​ 
-States Rights Party and its organ, "​Thunderbolt"​... ​ (Canada. Special Committee on Hate  
-Propaganda, 1966: 12-13) 
-The Cohen Committee recommendations formed the basis of some of the key hate propaganda ​ 
-provisions, s.318-320 of the Criminal Code, which were adopted by Parliament in 1970. 
- 
-A second wave of anti-Semitic and racist activity erupted in the mid-1970s. ​ Some of these  
-racist and anti-Semitic themes became enmeshed with various strains of Christian ​ 
-fundamentalism. ​  Not all forms of prejudice, however, wrapped themselves in the garb of  
-theology. ​ For example, certain manifestations of historical revisionism (particularly "​Holocaust ​ 
-denial"​ literature) and psychometric theories of racial superiority sought respectability by  
-adopting scholarly trappings. ​ Canadian youth espousing white supremacist and neo-nazi ​ 
-ideologies began to appear in the 1980s among various factions of the skinhead subculture.  ​ 
-Rosen states: 
- 
-This second wave of hate propaganda and racist group activity gave rise to a flurry of  
-reaction and a wide-ranging debate. ​ Proposals for legislative change came from a 1982  
-Vancouver Symposium on Race Relations and the Law, the 1984 Report of the Special ​ 
-House of Commons Committee on Visible Minorities (Equality Now!), the 1984 Report ​ 
-of the Canadian Bar Association'​s Special Committee on Racial and Religious Hatred, the  
-1985 Report of the Special Committee on Pornography and Prostitution (Fraser ​ 
-Committee) and the Law Reform Commission of Canada'​s 1988 Report on the  
-Recodification of the Criminal Law.  (Rosen 1994: 2) 
- 
-The bulk of the hate propaganda in Canada continues to be disseminated in the print medium: ​ 
-pamphlets, magazines, and books. ​ Examples of other media, such as video cassettes and audio  
-cassettes, appear with less frequency.  ​ 
- 
-The primary electronic form of disseminating hate propaganda in Canada has been telephone ​ 
-answering machines. ​ For example, in 1979, John Ross Taylor and the Western Guard Party  
-were found to be in violation of section 13 of the Canadian Human Rights Act which prohibits ​ 
-the telephonic transmission of hate messages based on race or religion. Between 1977 and 1979,  
-Taylor had operated a hate line using a telephone answering machine. ​ In 1979 the Canadian ​ 
-Human Rights Commission issued a cease and desist order which was made an order of the  
-Court in August of that year.  The appellants did not cease and desist. ​ In 1980, Mr. Justice ​ 
-Dubé found the appellants guilty of contempt of court, fining the Party and imposing a one year  
-suspended sentence on Taylor. ​ Between June 1982 and April 1983, Taylor ran another hate line  
-through his telephone answering machine and once again the Human Rights Commission sought ​ 
-a Court ruling. ​ Taylor countered that under the Canadian Charter of Rights and Freedoms, ​ 
-which came into force on April 17, 1982, his freedom of expression was being violated. ​ The  
-case reached the Federal Court of Appeal and a decision was rendered on April 22, 1987 --  
-Taylor'​s appeal was dismissed. 
- 
-Taylor'​s use of telephone answering machines to promote hate is not an isolated case.  On July  
-25, 1989, a Canadian Human Rights Tribunal upheld a complaint against Terry Long, Randy  
-Johnston and the Church of Jesus Christ Christian-Aryan Nations for setting up a hate line  
-which had been operating in 1987 and 1988.   ​Similarly,​ in 1992, the Canadian Human Rights ​ 
-Commission sought court orders for two white supremacist hotlines set up by the Heritage Front  
-in Toronto. ​ The persistence of some of these groups is clearly illustrated by the recent activities ​ 
-of the Canadian Liberty Net.  In January 1992, the Canadian Human Rights Commission ​ 
-announced a tribunal would be formed to adjudicate the case of a Vancouver hate line  
-established by the Canadian Liberty Net (Kinsella 1994: 56-59). ​ On March 3, 1992, a Federal ​ 
-Court injunction ordered the Canadian Liberty Net to stop transmitting telephone hate messages.  ​ 
-Tony McAlcer, who launched the Vancouver hate line, then set up a hate line in neighbouring ​ 
-Washington state. ​ The Canadian Human Rights Commission sought a contempt of court ruling.  ​ 
-On July 12, 1992, the Federal Court found the Canadian Liberty Net in contempt of court for  
-failing to obey the earlier injunction; fines and a prison sentence were subsequently imposed.  ​ 
-The Canadian Liberty Net continued to pursue activities. ​ On September 5, 1993, a Canadian ​ 
-Human Rights Tribunal ordered the Vancouver-based organization to stop their telephone hate  
-messages. ​ This was followed on January 27, 1994 by a Canadian Human Rights Tribunal ​ 
-ordering the Canadian Liberty Net to stop transmitting telephone hate messages directed against ​ 
-homosexuals. 
- 
- 
- 
-COMPUTER-MEDIATED HATE PROPAGANDA ​ 
- 
-There are very few documented cases of racist groups using computer bulletin boards in  
-Canada. ​ The primary function of the white supremacist bulletin boards that have existed for  
-almost a decade in the United States appears to be the exchange of information among  
-individuals who already belong to racist organizations. ​ Bulletin boards operated by the KKK or  
-the Aryan Nations are not established to prospect for new converts, as is the aim with  
-pamphleteering. 
- 
-Although white supremacist bulletin boards tend to be covert, racist or anti-Semitic messages ​ 
-are fairly widely accessible in USENET newsgroups such as alt.revisionism and alt.skinheads.  ​ 
-The most widely known of the revisionists on USENET are probably Dan Gannon, an American ​ 
-who posts anti-holocaust messages, and Serdar Argic who is preoccupied with Turkish- 
-Armenian historical revisionism. ​ Among skinheads, one of the most prolific posters is a  
-Canadian from the National Capital Region who, in addition to regularly expressing his  
-opinions on everything from fashion to fascism, uploaded a 'zine called SledgeHammer to  
-alt.revisionism and alt.skinheads. ​ Billing itself as "The Voice of the White Nations",​ the June  
-1994 issue included articles from German and American contributors (such as Christian Identity ​ 
-Pastor Pete Peters). ​ The electronic magazine purports to be a monthly publication produced by  
-the Gatineau chapter of the Northern Hammer Skinheads. ​  As with similar postings, this was  
-soundly criticized by other net citizens (including anti-racist skinheads) who quickly flood the  
-group with messages advocating tolerance or voicing their condemnation of racism and anti- 
-Semitism.  ​ 
- 
-Ken McVay, a British Columbia resident, has gained respect among regular users of the Net for  
-having devoted much of his spare time to combatting hate mongers. ​ McVay and a number of  
-American USENET enthusiasts such as Danny Keren and Jamie McCarthy scour newsgroups ​ 
-for racist and anti-Semitic postings. ​ Rather than simply denouncing or insulting the hate  
-propagandists,​ people like McVay, post evidence and historical arguments which refute the  
-claims of Holocaust deniers and neo-Nazis. ​ McVay also operates a listserver which provides ​ 
-access to thousands of documents on the Holocaust, as well as hundreds of articles documenting ​ 
-contemporary neo-Nazi and white supremacist activities. ​ McVay has explicitly argued against ​ 
-censoring newsgroups such as alt.revisionism:​ 
- 
-"​Dealing with these guys on a daily basis for over two years. Seeing how easy it is to  
-shoot them down. And it is. The most intellectual among them are stupid and completely ​ 
-inept when it comes to historical research. And, of course, they are liars. That being the  
-case, why on Earth would anyone want to shut them up or force them underground?​ I  
-want to know who I'm dealing with. I want to know where they are. And I want to know  
-how their minds work... 
- 
-"These online discussions are not aimed at getting Gannon and his pals to change their  
-minds,"​ McVay says. "That ain't gonna happen. It's to reach the rest - - such as the new  
-users that pop up every September in universities and stumble on this stuff. Many don'​t ​ 
-know how Nazis operate. Most racists don't go around with a little patch on their  
-shoulder proclaiming:​ `I hate Jews, or blacks, or natives.'​ But it's there. We work to  
-bring it out in the open." ​ (Campbell 1994) 
- 
-McVay'​s argument highlights a crucial difference between hate-promoting pamphlets or  
-telephone answering machines with hate messages and USENET newsgroups. ​ If a white  
-supremacist group leaves pamphlets on car windshields or on benches in a public place, an  
-unsuspecting individual who reads the pamphlet is presented with a one-sided diatribe. ​ In  
-USENET groups such as alt.revisionism or alt.skinhead,​ every time an anti-Semitic or racist ​ 
-message is posted, people like McVay, Keren or McCarthy post rational and well-researched ​ 
-counter-arguments. ​ The presentation of multiple viewpoints ensures that a discussion group can  
-never degenerate into a hotbed of hate propaganda. 
-If an entire newsgroup were to be censored, it would stifle the marshalling of opinions, ​ 
-evidence and arguments which counter inflammatory material. ​ Messages from people such as  
-Keren, McVay and McCarthy may sway some individuals from racist beliefs. ​ More  
-importantly,​ their public availability in newsgroups such as alt.skinhead provides others with the  
-tools to fight prejudice. ​ The very appearance of such postings clearly demonstrates that we are  
-living in a tolerant, democratic society and thereby repudiates the lies of bigotry. 
- 
-In the United States, many state and local governments have enacted "hate crime" statutes, ​ 
-although both types of statutes have been subjected to constitutional challenges on First  
-Amendment grounds. ​ Perhaps the higher threshold for political and religious speech partly ​ 
-explains why American white supremacists have been quicker to exploit more high-tech methods ​ 
-of spreading their message than the Canadian far right. ​ In the mid-1980s, Tom Metzger of the  
-White Aryan Resistance, used public access community channel cable television to spread the  
-white-supremacist message on his own weekly TV talk-show. ​ Metzger started the first  
-computer bulletin board dedicated to hate in 1984, calling it the W.A.R. Board (which, as  
-expected, stands for "White Aryan Resistance"​). ​  Some time later, Lewis Beam, former Grand  
-Dragon of the White Camellia Knights of the KKK founded the Liberty Computer Network, a  
-small network of racist bulletin boards. ​ There are also a number of neo-nazi skinhead bulletin ​ 
-boards in the United States. ​ In the United States, the National Telecommunications and  
-Information Administration (NTIA) was directed to prepare a report "on the role of  
-telecommunications in crimes of hate and violence, acts against ethnic, religious, and racial ​ 
-minorities"​ (March 1993: 16340). 
- 
-Large commercial systems in the U.S., particularly Prodigy, have in the past gained negative ​ 
-media coverage when anti-Semitic and anti-gay messages were circulated on certain discussion ​ 
-groups. ​ The management of Prodigy currently responds to such occurrences more quickly by  
-shutting down the offending discussion group.  ​ 
- 
-In Canada, there are a small number of examples of hate messages being delivered over bulletin ​ 
-boards. ​ In January 1992, a member of the Canadian National Party  disseminated anti-Semitic ​ 
-and racist messages on a number of Montreal computer bulletin boards. ​ There are very few  
-cases of white supremacist groups in Canada establishing computer bulletin boards, ​ although ​ 
-in the past few months, a pair of computer bulletin boards have emerged in Toronto. ​ The  
-Politically Incorrect BBS is advertised on U.S. sites as the "First Canadian White Nationalist ​ 
-board, sponsored by the Euro-Canadian Alliance";​ it was joined a few months later by a  
-companion bulletin board named the Digital Freedom BBS. 
- 
-In the United States material championing far right politics, white supremacism,​ and Christian ​ 
-Identity is available on a number of file archives accessible by anonymous ftp as well as a  
-handful of World Wide Web sites. ​ For example, an information provider in Florida is the host  
-for the "​Stormfront White Nationalist Resource Page"​. ​ Among the menu selections offered on  
-this WWW page was a current online edition of Up Front (produced by The Heritage Front) ​ 
-billed as "​Canada'​s premier White Nationalist magazine"​. ​ Another U.S. Web site provides a  
-link to Ernst Zundel'​s "Voice of Freedom"​ banner. ​ It offers an extensive bibliography of  
-Canadian newspaper articles about Zundel as well as reviews of some of Zundel'​s ​ 
-publications. ​ 
- 
- 
-LEGAL FRAMEWORK ​ 
- 
-There are a number of federal statutes that have been used to successfully prosecute hate  
-propaganda. ​ The two main legal instruments are Sections 318-320 of the Criminal Code and  
-the Canadian Human Rights Act. 
- 
-Section 318 of the Criminal Code states: "Every one who advocates or promotes genocide is  
-guilty of an indictable offence and liable to imprisonment for a term not exceeding five  
-years." ​  ​Whereas section 318 is specifically concerned with the promotion of genocide, ​ 
-section 319 pertains to dissemination of hatred in two specific respects. ​ First: 
- 
-(1) Every one who, by communicating statements in any public place, incites hatred ​ 
-against any identifiable group where such incitement is likely to lead to a breach of the  
-peace is guilty of 
- 
- (a) an indictment offence and is liable to imprisonment for a term not  
-exceeding two years; ​ or 
- (b) an offence punishable on summary conviction. 
- 
-One should note that a crime is committed only if the statements are communicated in a public ​ 
-place; which section 319(7) defines as "any place to which the public has access as of right or  
-by invitation, express or implied." ​ The necessity to draw a distinction between public and  
-private occurs again in the second case covered by section 319: 
- 
-(2) Every one who, by communicating statements, other than in private conversation, ​ 
-wilfully promotes hatred against any identifiable group is guilty of 
- 
- (a) an indictment offence and is liable to  
-imprisonment for a term not exceeding two  
-years; or 
- (b) an offence punishable on summary conviction. 
- 
-Although section 319(7) defines a "​public place" it does not define a "​private conversation"​. ​ 
-Although personal e-mail between two members of a white supremacist organization may  
-constitute a private conversation,​ it is unclear whether the caveat "other than in private ​ 
-conversation"​ could exempt communication conducted on private computer bulletin boards (for  
-example, a BBS run by the Aryan Nations which restricted BBS admission to members of the  
-Church of Jesus Christ Christian). ​ It does appear, however, that computer-mediated ​ 
-communication such as takes place in the alt.revisionism USENET newsgroup is public rather ​ 
-than private and is subject to section 319.   ​According to the logic of how section 319(2) has  
-been applied to existing media, one would suspect that liability rests with the individual who  
-communicates statements promoting hatred against an identifiable group rather than with any  
-USENET host that might carry alt.revisionism or a similar newsgroup. ​  ​Without further ​ 
-clarification,​ however, one cannot totally exclude the possibility that a USENET host might be  
-held liable. ​ The last component in the equation are the newsgroups themselves, specifically the  
-unmoderated newsgroups wherein much of this communication currently takes place. ​ Given  
-that individuals who combat hate propaganda (such as McVay, Keren or McCarthy) are regular ​ 
-contributors to alt.revisionism and similar newsgroups, it would be difficult to argue that the  
-newsgroup per se is the source of hate propaganda. 
- 
-The final section of the Criminal Code which warrants attention is section 320 which states: 
- 
-(1) A judge who is satisfied by information on oath that there are reasonable grounds for  
-believing that any publication,​ copies of which are kept for sale or distribution in  
-premises within the jurisdiction of the court, is hate propaganda shall issue a warrant ​ 
-under his hand authorizing seizure of the copies. 
- 
-(2) Within seven days of the issue of a warrant under subsection (1), the judge shall issue  
-a summons to the occupier of the premises requiring him to appear before the court and  
-show cause why the matter seized should not be forfeited to Her Majesty. 
- 
-For the purpose of this section, "hate propaganda"​ is defined as "any writing, sign or visible ​ 
-representation that advocates or promotes genocide or the communication of which by any  
-person would constitute an offence under section 319(2)." ​ This provision evidently targets ​ 
-items such as films, books, magazines, pamphlets and posters used to disseminate hate  
-propaganda. ​ It is possible that by referencing section 319(2) this provision could also include ​ 
-electromagnetic media such as audio- or video-cassettes inasmuch as these would be covered by  
-the "​statements"​ definition of s.319(7). ​ If such were the case, CD-ROM or computer disks  
-containing hate propaganda and intended for "sale or distribution"​ could also be confiscated. ​ It  
-may also be possible that a computer hard drive containing hate propaganda could be  
-confiscated if that computer was used to distribute hate propaganda and was physically located ​ 
-in premises within a Canadian jurisdiction (for example, a white supremacist listserver, ftp  
-archive site, or BBS).  These seizure and confiscation provisions require the consent of the  
-provincial Attorney General. 
- 
-As mentioned earlier, section 13 of the Canadian Human Rights Act prohibits the  
-communication of hatred via telephone lines: ​ 
- 
-(13)(1) 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 telecommunication undertaking within the  
-legislative authority of Parliament, any matter that is likely to expose a person or persons ​ 
-to hatred or contempt by reason of the fact that those person or persons are identifiable ​ 
-on the basis of a prohibited ground of discrimination. 
- 
-With respect to racist telephone messages, section 13 has been successfully used to prosecute ​ 
-John Ross Taylor and the Western Guard Party in 1979, as well as the Church of Jesus Christ- 
-Aryan Nations in 1988.  Although this provision was clearly intended to combat hate lines that  
-utilize telephone answering machines, the clause "to communicate telephonically or to cause to  
-be so communicated"​ captures any traffic (not just voice) that is transmitted over the telephone ​ 
-lines of a licensed common carrier. ​ On this interpretation,​ section 13 would cover e-mail ​ 
-messages that are "​likely to expose a person or persons to hatred or contempt by reason of the  
-fact that those person or persons are identifiable on the basis of a prohibited ground of  
-discrimination."​ 
- 
-In addition to Criminal Code provisions pertaining to hate propaganda and section 13 of the  
-Canadian Human Rights Act, there are a number of other measures that could be brought into  
-effect. ​ Canada Post under the authority of the Canada Post Corporation Act (s.43) is permitted ​ 
-to issue an interim prohibitory order disallowing delivery of mail addressed to or posted by a  
-person involved in criminal activities via the mail.  This has been used successfully against John  
-Ross Taylor since the mid-Sixties. ​ Ernst Zundel succeeded in having an interim prohibitory ​ 
-order revoked. ​ Canada Customs, under the authority of section 114 of the Customs Tariff Act is  
-authorized to prohibit the importation into Canada "​Books,​ printed paper, drawings, paintings, ​ 
-prints, photographs or representations of any kind that constitute hate propaganda within the  
-meaning of s.320(8) of the Criminal Code." Finally: 
- 
-  Broadcasting Act regulations are broader than Criminal Code sanctions (illegal to subject ​ 
-an identifiable group to hatred) but penalties are less severe... 
- 
-Canadian Radio-Television and Telecommunications Act regulations prohibit abusive ​ 
-expression which exposes identifiable groups to hatred or contempt.... 
- 
-Immigration Canada, can and will refuse permission to enter Canada to foreigners under  
-the authority of the Immigration Act, 1976 if it is reasonably to be expected they will  
-commit an offence. ​ This was done on January 22 of this year [1993] to Denis Mahon, a  
-leader of the KKK, as well as David Irving, a British Holocaust denier (November 2,  
-1992). ​ Tom and John Metzger, leaders of the White Aryan Resistance (July 1992), were  
-deported after spreading their message. ​  ​(Solicitor General Canada (Ontario Regional ​ 
-Office) 1993: 12) 
- 
-This overview provides examples of a number of legal instruments that have been used  
-successfully in dealing with hate propaganda disseminated through traditional media. ​ There are  
-indications that these same instruments could be applied to computer-mediated hate messages. 
- 
-One outstanding difficulty that these provisions do not cover is that "bits know no boundaries."  ​ 
-Canadian options are limited when the person who posts hate messages resides in another ​ 
-jurisdiction or e-mails messages through an anonymous remailer located in another jurisdiction.  ​ 
-Although anonymous remailers can provide legitimate services (for example, for victims of  
-sexual abuse who participate in self-help discussion groups) there are clearly misuses of  
-applications affording anonymity. ​ There are significant technical and jurisdictional difficulties ​ 
-in prosecuting an individual posting through an extra-territorial anonymous remailer.  ​ 
-Jurisdictional problems also arise when Canadian hatemongers sidestep our laws by placing ​ 
-material on file archives or World Wide Web pages located in the United States or other  
-countries. ​ It may be possible in this regard, however, to explore bilateral or multilateral ​ 
-arrangements with other nations in order to deal with jurisdictional problems in the control of  
-illegal communication on global networks. 
- 
- 
- 
- 
-DEFAMATION ON THE INFORMATION HIGHWAY 
- 
-With the millions of e-mail messages being posted daily to bulletin boards (commercial and  
-amateur), USENET groups, listservers,​ and the like, it is not surprising that some of the  
-messages cross the line from being constructively critical to being sarcastic, insulting, and even  
-defamatory. ​ "​Flaming",​ or composing and posting provocative or insulting messages, is a  
-common occurrence on all but the most tightly moderated groups or conferences. ​ With respect ​ 
-to computer-mediated communication,​ there are two basic questions which we need to ask:  
- 
- (a) Can an individual who posts a message with defamatory content on a computer ​ 
-bulletin board, USENET newsgroup, or a listserv be subject to sanctions in a  
-criminal or civil court? 
- (b) Can an organization,​ business, or institution be held responsible and made liable ​ 
-simply because it provided the bulletin board service on which a message was  
-posted, or provided the computer which acted as the originating USENET host, or  
-merely stored and forwarded a newsgroup, e-mail conference or FIDONET echo  
-containing a defamatory message? 
- 
-To address these questions we must first come to terms with what constitutes defamation. ​ Not  
-surprisingly there are jurisdictional differences,​ especially when dealing with global networks.  ​ 
-We can, however, begin by citing the Handbook Exploring the Legal Context for Information ​ 
-Policy in Canada, which states: 
- 
-The dissemination of misinformation is proscribed to a certain extent by criminal law  
-which falls within the exclusive jurisdiction of the federal government. ​ The provincial ​ 
-governments have also legislated in this area, specifically in the areas of libel and slander.  ​ 
-Finally, there are a variety of common law actions which are concerned with the  
-dissemination of misinformation. (Cleaver et al. 1992: 68) 
- 
-Defamatory libel is defined as a matter published without lawful justification that will  
-likely injure the reputation of a person by exposing the person to hatred, contempt, ​ 
-ridicule or insult. ​ In addition, the defamatory libel need not be in the form of words and  
-it may be expressed directly, by insinuation or by irony. (Cleaver et al. 1992: 70) 
- 
-A variety of defences are available under the Criminal Code: 
- 
-A person who publishes defamatory libel will not be liable for the offence if he believed, ​ 
-on reasonable grounds, that the content of the published matter is true, relevant to a topic  
-of public interest and that it would be in the public interest to discuss it; the matter is a  
-fair comment about the public conduct of a person who participates in public affairs, or  
-fair comment about a work of art; the matter is true and the manner and time of  
-publication are for the public benefit; the matter was in response to an invitation or  
-challenge, or necessary to refute a defamatory libel about himself, as long as he believes ​ 
-the libel is true, relevant for the purposes stated and does not exceed what is reasonably ​ 
-sufficient in the circumstances;​ the matter is published, in good faith or without ill-will, ​ 
-in response to inquiries by a person concerned about the truth or who reasonably believes ​ 
-it to be true, relevant and not excessive in the circumstances;​ the matter is published in  
-good faith to redress a private or public wrong or grievance from a person whom he  
-reasonably believes has an obligation to provide a remedy and he believes the matter to be  
-true; or the matter was contained in a paper published under the authority of the Senate or  
-House of Commons. ​ (Cleaver et al. 1992: 70-71) 
- 
-In addition to Criminal Code provisions, libel and slander can find redress under common law: 
- 
-Libel and slander are based on the common law recognition of an individual'​s right to  
-protect his reputation from injury through false statements or words. ​ Therefore, this tort  
-is concerned with the protection of an individual'​s reputation from the dissemination of  
-misinformation about himself. ​ Protection is only afforded to the reputation that the  
-individual actually enjoys and not what he may deserve. ​  ​(Cleaver et al. 1992: 77) 
- 
-An individual may suffer defamation through libel and/or slander. ​ These are two separate torts.  ​ 
-At common law, the following three elements must be proved for both actions: 
- 
- (1) the statements or words must be defamatory; 
- (2) the statements or words must be published; and 
- (3) the plaintiff himself must be defamed. 
- 
-The distinction between libel and slander is based on two factors: 
- 
- (1) Permanence of the medium used to disseminate the misinformation:​ 
- Libel occurs when misinformation is communicated in a  
-permanent form such as in print, by photograph, etc.  Slander occurs when  
-misinformation is imparted in a transitory fashion, e.g. by gesture, look,  
-word, etc. 
- 
- (2) Proof of damage: 
- Damage is presumed in libel when the plaintiff establishes that  
-the defendant has disseminated defamatory material about him.  However, ​ 
-special damages must be pleaded and proved by the plaintiff for slander.  ​ 
-This difference has been obliterated by statute in some jurisdictions so that  
-damage is presumed for both libel and slander. ​   (Cleaver et al. 1992: 78) 
- 
-Everyone is responsible for the accuracy of their statements, notwithstanding their intentions ​ 
-(inasmuch as libel and slander are strictly liability torts, an individual will be held liable even if  
-that individual is unaware that the statement has detrimentally affected the plaintiff). ​  If the  
-statement can be shown to be true, in most cases one can successfully defend a charge of libel  
-or slander (Cleaver et al. 1992: 79). 
- 
-To put these issues in context, consider the following sample of international disputes: (1) the  
-Rindos-Hardwick suit; (2) Cubby Inc. v. CompuServe; and (3) Godfrey v. Hallam-Baker. ​ One  
-of the rare Internet-related libel cases to go to court and have a verdict rendered was launched ​ 
-by David Rindos. ​  The episode was triggered when the University of Western Australia ​ 
-terminated Dr. Rindos'​s employment, apparently on the grounds of insufficient productivity.  ​ 
-Protests by colleagues at universities around the world began to circulate on the Internet ​ 
-spurred, in part, by postings on June 23-25, 1993 to sci.anthropology (and the Anthro-L list) by  
-American anthropologist Hugh Jarvis. ​ A few days later, a message was posted in response by  
-Derby anthropologist Gilbert Hardwick. ​ Rindos sued Hardwick for defamation. ​ Following the  
-court'​s decision, The West Australian reported: 
- 
-Justice David Ipp said it [Hardwick'​s message] contained the imputation that Dr Rindos'​s ​ 
-professional career and reputation had not been based on appropriate academic research ​ 
-"but on his ability to berate and bully all and sundry."​ 
- 
-He said that the message also suggested that Dr Rindos had engaged in sexual misconduct ​ 
-with a local boy.  The inference was that these matters had some bearing on his dismissal ​ 
-from the university. 
-  
-"I accept that the defamation caused serious harm to Dr Rindos'​s personal and  
-professional reputation,"​ Justice Ipp said.  "I am satisfied that the publication of these  
-remarks will make it more difficult for him to obtain appropriate employment.  ​ 
- 
-"He suffered a great deal of personal hurt.  The damages award must compensate him for  
-all these matters and vindicate his reputation to the public."​ 
- 
-Mr Hardwick did not defend his action. ​ He wrote to Dr Rindos'​s lawyer: ​ "Let this  
-matter be expedited and done with ... I can do nothing to prevent it, lacking any  
-resources whatsoever to defend myself." ​ (Lang 1994) 
- 
-Dr. Rindos was awarded $40,000 (Australian). ​ It has been suggested that the extent to which  
-this decision will be binding on future Internet-related litigation in Australia is unclear but it is  
-certain that the Internet can no longer ignore the law.  Of course, this case does not have any  
-direct bearing on Canadian court rulings. ​ For our purposes, however, the Rindos-Hardwick ​ 
-case indicates that it is possible for individuals to be held responsible for defamatory statements ​ 
-which they post to USENET, listservs, or similar electronic discussion groups. 
- 
-The second libel case to be considered is Cubby, Inc. v. CompuServe Inc. (776 F. Supp. 135,  
-1991) which was decided in the Southern District of New York.  CompuServe is a large  
-American information provider which, through the CompuServe Information Service, offers ​ 
-online news, information databases, and discussion groups. ​ CompuServe was taken to court for  
-libel, business disparagement,​ and unfair competition based on allegedly defamatory statements ​ 
-which appeared in a daily newsletter, Rumorville USA, to which CompuServe subscribers have  
-access. ​ CompuServe moved for a summary judgment and its motion was granted by District ​ 
-Judge Peter Leisure. ​ One of the crucial facts in the decision is that Rumorville USA was a  
-newsletter made available in the Journalism Forum. ​ Cameron Communications,​ Inc. (CCI), a  
-company independent of CompuServe had been contracted by CompuServe to "​manage,​ review, ​ 
-delete, edit and otherwise control the contents"​ of the Journalism Forum. ​ Moreover, ​ 
-Rumorville USA was published by Don Fitzpatrick Associates of San Francisco (DFA). ​ DFA  
-provides Rumorville to the Journalism Forum under contract with CCI.  In his decision, District ​ 
-Judge Leisure writes: 
- 
-CompuServe'​s CIS product is in essence an electronic, for-profit library that carries a  
-vast number of publications and collects usage and membership fees from its subscribers ​ 
-in return for access to the publications. ​ CompuServe and companies like it are at the  
-forefront of the information industry revolution. ​ High technology has markedly ​ 
-increased the speed with which information is gathered and processed; ​ it is now possible ​ 
-for an individual with a personal computer, modem, and telephone line to have  
-instantaneous access to thousands of news publications from across the United States and  
-around the world. ​ 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. ​ This is especially so when CompuServe ​ 
-carries the publication as part of a forum that is managed by a company unrelated to  
-CompuServe. 
- 
-With respect to the Rumorville publication,​ the undisputed facts are that DFA uploads the  
-text of Rumorville into CompuServe'​s data banks and makes it available to approved CIS  
-subscribers instantaneously. ​ 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.  "​First ​ 
-Amendment guarantees have long been recognized as protecting distributors of  
-publications.... ​ Obviously, the national distributor of hundreds of periodicals has no  
-duty to monitor each issue of every periodical it distributes. ​ Such a rule would be an  
-impermissible burden on the First Amendment." ​ Lerman v. Flynt Distributing Co., 745  
-F.2d 123, 139 (2d Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2114, 85 L.Ed.2d ​ 
-479 (1985); ​ see also Daniel v. Dow Jones & Co., 137 Misc.2d 94, 102, 520 N.Y.S.2d ​ 
-334, 340 (N.Y.Civ.Ct.1987) (computerized database service "is one of the modern, ​ 
-technologically interesting,​ alternative ways the public may obtain up-to-the-minute ​ 
-news" and "is entitled to the same protection as more established means of news  
-distribution"​). ​  ​(Cubby,​ Inc. v. CompuServe Inc. 776 F. Supp. 135, 1991) 
- 
-The Judge'​s rationale is significant:​ CompuServe is less like a publisher and more like a library ​ 
-or book store. ​ It is not feasible for CompuServe "to examine every publication it carries for  
-potentially defamatory statements." ​  ​Admittedly,​ the decision is a district court case and is not  
-binding on other jurisdictions but it goes a certain distance in defining where liability ends.  ​ 
-Given that there is no Canadian jurisprudence on this point it is only possible to speculate that  
-Canadian courts might make a similar distinction between "​publishers"​ and "​distributors"​. 
- 
-If we shift now from civil law to criminal law, we find that the Canadian Criminal Code dealing ​ 
-with defamatory libel has certain similar, though not as extensive, provisions (cf. Sections 303- 
-304) distinguishing newspaper proprietors from vendors: 
- 
-There are special provisions for newspaper and book vendors who sell material that  
-contains defamatory matter. ​ A proprietor of a newspaper will be deemed to have  
-published defamatory material if he cannot prove that the material was inserted without ​ 
-his knowledge and without negligence on his part.  A vendor is protected from liability ​ 
-unless he knows that defamatory material is present or the newspaper or book habitually ​ 
-carries defamatory material. ​ Whether a printed publication constitutes a newspaper ​ 
-depends upon the frequency of the publication and the type of material that is contained ​ 
-within it.   ​(Cleaver et al. 1992: 71-72) 
- 
- 
-Mike Godwin has pointed to the emphasis Judge Leisure accords the contractual relationship ​ 
-between CompuServe and Cameron Communications,​ Inc., noting that "This particular legal  
-relationship is one that tends to limit the liability of the principal party for most tortious activity ​ 
-(such as libel)"​ (Godwin 1993). ​ However, Godwin suggests that this is offset by the Judge'​s ​ 
-reliance on Smith v. California, given that the latter "does not depend on whether the  
-publisher/​distributor is party to a subcontract"​ (Godwin 1993). ​ Judge Leisure states: 
- 
-Technology is rapidly transforming the information industry. ​ A computerized database is  
-the functional equivalent of a more traditional news vendor, and the inconsistent ​ 
-application of a lower standard of liability to an electronic news distributor such as  
-CompuServe than that which is applied to a public library, book store, or newsstand ​ 
-would impose an undue burden on the free flow of information. ​ Given the relevant First  
-Amendment considerations,​ the appropriate standard of liability to be applied to  
-CompuServe is whether it knew or had reason to know of the allegedly defamatory ​ 
-Rumorville statements. ​ (Cubby, Inc. v. CompuServe Inc. 776 F. Supp. 135, 1991) 
- 
-Godwin suggests that Judge Leisure'​s "​recognition of the immediacy, the high volume, and the  
-uncensored nature of CompuServe"​ is a rationale which could equally apply to service providers ​ 
-or organizations who carry USENET newsgroups or mailing lists.  ​ 
- 
-The two cases just considered lead one to speculate that (1) an individual can be held  
-responsible for writing and posting defamatory statements but (2) an information provider which  
-simply carries an electronic newsgroup (and does not exercise editorial control) may be more  
-like a library, bookstore or vendor and not be held responsible. ​ Matters, however, are not quite  
-so simple. ​ This has been indicated by a 1994 case at Carleton University (Godfrey v.  
-Hallam-Baker) in which a Carleton employee posted messages to a newsgroup that were  
-regarded as defamatory by an academic in the United Kingdom. ​ The British academic sued  
-Carleton University. ​ It is purported that the university'​s insurance company settled out of  
-court. ​ There clearly remains a great deal of uncertainty coupled with a high level of caution on  
-the part of organizations. 
- 
- 
- 
-CONCLUSION 
- 
-Digitization and microelectronics have transformed the way we capture, store, transmit and  
-reproduce information. ​ Books, magazines, newsletters,​ pamphlets, videos, and sound  
-recordings are no longer confined or restricted to their traditional formats. ​ Of course, ​ 
-traditional media will continue to exist; however, the new electronic environment of computer- 
-mediated communications opens up fresh avenues for how information is exchanged and  
-transmitted. ​ Floppy disks, CD-ROMs, and computer networks such as the Internet, USENET ​ 
-and computer bulletin board systems (BBS) are changing some of the ways we communicate ​ 
-with each other. 
- 
-Computer networks and distributed information resources are evolving as fundamental tools  
-essential to the realms of commerce, industry and academia. ​ Our social world is also beginning ​ 
-to find intrinsic value in the electronic infrastructure as attested by the popularity of electronic ​ 
-mail, electronic bulletin boards, news and discussion groups, as well as the Internet itself. ​ With  
-this proliferation of new pathways for communication,​ however, has also arisen the age-old ​ 
-problem of controlling offensive content. 
- 
-As a democratic society, Canada encourages freedom of expression and advocates tolerance.  ​ 
-Now and then, some of this expression -- words, images or motion pictures -- is regarded by  
-different individuals or by different communities as offensive. ​ The material could be sexually ​ 
-explicit; contain representations of violence; or contain political, religious, or cultural content ​ 
-that others find unacceptable or intolerable. ​ Sometimes law enforcement intervenes and the  
-judicial system makes a determination whether a particular instance of offensive communication ​ 
-is actually illegal. 
- 
-Even in a democratic society, freedom of expression is never absolute. ​ Our political and  
-judicial systems prohibit certain forms of communication if there is a reasonable expectation of  
-harm and, in many circumstances,​ bring into play a variety of contextual factors such as  
-whether the practice is private or public. ​ Freedom of expression, then, is guaranteed by the  
-Canadian Charter of Rights and Freedoms but it is qualified or subject to "​reasonable limits" ​ 
-proscribed by law.  The Criminal Code has provisions for dealing with obscenity, child  
-pornography,​ hate propaganda, and defamatory libel. ​ Harassment is handled, in part, through ​ 
-the Canadian Human Rights Act.  There are also a variety of remedies in civil law for  
-defamation; for example, libel and slander are strict liability torts. 
- 
-When the state prohibits certain types of expression, it clearly infringes on section 2(b) of the  
-Charter of Rights and Freedoms. ​ This infringement,​ however, can be justified according to  
-section 1 of the Charter if the legislation complies with the threshold test and the proportionality ​ 
-requirement delineated by Chief Justice Dickson. ​ The threshold test requires that the legislative ​ 
-objective must be "of sufficient importance to warrant overriding a constitutionally protected ​ 
-right or freedom"​ (such as the pressing and substantial objective of avoiding harm to particular ​ 
-vulnerable groups in society and consequently to society as a whole). ​ The proportionality ​ 
-requirement requires that: (a) there must be a rational connection between the means (the  
-legislative measures) and the ends (the legislative objective); (b) the measure should impair the  
-constitutionally protected freedom as little as possible (to use the Hon. John Sopinka'​s ​ 
-illustration,​ if the objective was to prevent harassing phone calls, banning everyone'​s use of  
-telephones would be too excessive an infringement);​ and (c) there must be a proper balance ​ 
-between the effects of the limiting measures and the legislative objective (i.e., the infringement ​ 
-on freedom of expression must be containable and must not abrogate what that freedom ​ 
-essentially contributes to our democracy). ​ The Supreme Court of Canada has provided a  
-number of guidelines in this regard; for example, with respect to obscenity (R. v. Butler; 1992)  
-and hate propaganda (R. v. Keegstra; 1990).  ​ 
- 
-In general, the law can be applied to any form of expression, regardless of the medium. ​ Often, ​ 
-however, individuals and organizations act as if electronic media do not have the same  
-protections as traditional media. ​ Are existing safeguards to control offensive content adequate ​ 
-in an electronic environment or are there features inherent in network-distributed media that  
-require amendments to laws and regulations governing traditional media? ​ 
- 
-Although the law applies to all media, it recognizes that under different circumstances blame can  
-be allocated differently. ​ Telephone companies, for example, are common carriers and are not  
-liable for the content transmitted through their facilities. ​  In contrast, the provisions in the  
-Criminal Code for defamatory libel specifically distinguish between newspaper proprietors on  
-the one hand and newspaper and book vendors on the other (Sections 303-304). ​ In a recent ​ 
-American case involving defamation, a judge decided that the information ​ provider ​ 
-(CompuServe) was less like a publisher and more like a library or book store. ​ The information ​ 
-provider was not responsible for potentially defamatory statements because it could not be  
-reasonably expected to examine the specifics of every publication it carried. ​ This decision, ​ 
-however, was not binding on other jurisdictions within the United States nor has there been any  
-Canadian jurisprudence on this point. 
- 
-Although Canadian law distinguishes between different sorts of entities with respect to media  
-law, as new media emerge new issues arise. ​  A USENET host site or a BBS operated by a  
-sysop is not any of the entities that existed in the first half of this century. ​ They are not a  
-common carrier, a bookstore, or a newspaper proprietor. ​ What can be done to clarify the  
-liability of different information providers such as privately-owned not-for-profit bulletin ​ 
-boards, for-profit database companies, individuals who run hobby BBSs, organization like  
-universities that own Internet or USENET host computers? ​ These are not the same entities, ​ 
-they do not offer the same services, and they exercise different degrees of control over the  
-content that they carry. ​ Waiting for some organization with enough financial resources to  
-pursue a lengthy legal battle may not be the optimal solution to this problem. 
- 
-In a digital environment where "bits know no boundaries",​ new problems arise in enforcement.  ​ 
-Tangible media such as books, magazines, or videocassettes have a higher probability of seizure ​ 
-than an invisible bit-stream transmitted in electro-magnetic waves via satellite or flowing as laser  
-pulses and electrical currents through telephone wires. ​ There have already been cases where  
-one nation finds itself in the "​footprint"​ of pornographic transmissions from an orbiting satellite ​ 
-that is owned by a company based in another country. ​ Globally interconnected computer ​ 
-networks are implicated in similar jurisdictional problems. ​ Material that is legal in another ​ 
-country but illegal in Canada could be posted to a USENET newsgroup and automatically ​ 
-forwarded to a Canadian host computer. ​ Similarly, material that is illegal in our country can  
-reside on a server in another country yet be easily accessible from Canada. 
-In an environment where information flows through porous boundaries, how are jurisdictional ​ 
-difficulties ​  ​provincial,​ inter-provincial,​ and international ​  to be resolved? ​ Are bilateral or  
-multilateral arrangements between provinces and countries a feasible option for controlling ​ 
-cross-border flows of offensive content? ​ What impediments hinder law enforcement agencies ​ 
-when it comes to enforcement on the information highway? 
- 
-Adherence to basic democratic principles demands that any action to prevent prohibited content ​ 
-not impinge unduly on permissible expression. ​ It appears, however, that electronic ​ 
-communication is not eliciting the same range of measured responses that are currently applied ​ 
-to traditional media. ​ Consider for example, a monthly magazine with sexually explicit images ​ 
-that is stopped at the border by Customs. ​ The first response might be to require a single image  
-or set of images to be blacked out or inked over by the publisher; then, entry of that month'​s ​ 
-issue would be permitted. ​ If no changes were made, however, officials would decide to  
-prohibit entry of that month'​s issue of the publication. Finally, if every month'​s issue contained ​ 
-material prohibited by law, a decision might be made to prohibit the importation of each and  
-every month'​s issue. ​ This graduated approach demonstrates that with traditional media  
-transgressions are dealt with on a case-by-case basis. 
- 
-By contrast, access to certain newsgroups such as those containing sexually explicit material has  
-been curtailed by some universities. ​ At issue is not their right to refrain from receiving ​ 
-electronic messages, but the rationale justifying these actions. ​ To assert that newsgroups are not  
-being carried because certain images in the newsgroups are obscene is mistaken in two respects.  ​ 
-First, there is a degree of presumption ​ as Supreme Court Judge Sopinka recently remarked: 
- 
-Difficult issues also arise in the context of universities which take action to ban certain ​ 
-communications found to be offensive and undesirable. First, one must ask whether it is  
-not preferable to permit the expression and allow the criminal or civil law to deal with the  
-individual who publishes obscene, defamatory or hateful messages rather than prevent ​ 
-speech before it can be expressed. ​ Otherwise, individuals may be putting themselves in  
-the positions of courts to determine what is obscene and what is acceptable. (Sopinka ​ 
-1994) 
- 
-Second, is the idea that cutting off access to a newsgroup is equivalent to the most extreme ​ 
-measure of banning every page of a publication in perpetuity. ​ In effect, the action that stops the  
-flow of hundreds of completely legal messages to eliminate a small number of others may  
-constitute unwarranted censure. 
- 
-In a parallel concern, the "store and forward"​ architecture underlying USENET has been cited  
-in relation to the Homolka publication ban.  This raises the question of whether the very  
-structure of USENET automatically constitutes "​publishing"​ or "​distribution"​ and thereby has  
-the potential to make hosts (or more precisely, the owners of hosts) susceptible to incrimination.  ​ 
-Are there features inherent in network distributed media which make it difficult to apply the  
-legal instruments which have been and are being applied to traditional media? 
- 
-Another issue that deserves consideration arises from the fact that Criminal Code definitions of  
-obscenity, hate propaganda and defamation all hinge on the difference between private use or  
-private conversation on the one hand and dissemination,​ publication or inciting the public on the  
-other. ​ E-mail communication could be a private conversation much like a telephone ​ 
-conversation and may not contravene the Criminal Code.  It is unclear at what point discussion ​ 
-groups -- particularly those on a private BBS as opposed to a USENET newsgroup -- cease to be  
-private conversations. ​ Defining that point is becoming increasingly imperative as more and  
-more of our social discourse takes place in cyberspace. 
- 
-Let us turn now to the issue of controlling offensive content that is not illegal under the  
-Criminal Code.  In Canada, different levels of government have different responsibilities ​ 
-regarding content. ​ Aside from the Criminal Code and the Charter of Rights and Freedoms, the  
-role of the federal government in matters related to expression is partially defined by the  
-Telecommunications Act, the Broadcasting Act, and the Canadian Human Rights Act.  ​ 
-Provincial governments have film and video review boards that enforce local regulations, ​ 
-including the prohibition of certain content and the enforcement of age restrictions. ​ Municipal ​ 
-governments have also introduced by-laws concerning the licensing and zoning of "​adult ​ 
-entertainment"​. 
- 
-We must bear in mind, that outside the Criminal Code different media are treated differently.  ​ 
-For example, the control exercised by the Canadian Radio-television and Telecommunications ​ 
-Commission (CRTC) over certain aspects of programming content in broadcasting ​ does not  
-have a parallel in the print medium; there is not a national regulatory body which controls the  
-content of books or magazines. ​ Software and computer databases have been treated more like  
-print media for the past 20 years due to a variety of factors including the contractual ​ 
-underpinnings of private purchases. ​ VANs (Value Added Networks), for example, are  
-currently not regulated. ​ Recently, isolated cases of alarming material have prompted ​ 
-suggestions to license amateur bulletin boards. ​ The only analogy would appear to be with ham  
-radio but the justification for licensing amateur radio operators was linked to spectrum ​ 
-management, not the control of individual behaviour or expression. ​ Should additional controls ​ 
-such as regulations or licensing requirements be introduced for computer-mediated content or  
-should we rely, as we have in the past, on a combination of existing legal and voluntary codes  
-or measures, community initiative and individual responsibility?​ 
- 
-Different organizations such as business enterprises,​ libraries, universities,​ school boards, and  
-high schools have different requirements and different rationales with respect to what content ​ 
-they regard as appropriate and what content they wish to control. ​ There are a number of ways  
-of achieving this objective. ​ Community action is a viable alternative to government ​ 
-intervention. 
- 
-Universities and large organizations have found that having the appropriate procedures and  
-mechanisms in place -- such as sexual harassment codes -- have enabled them to deal with some  
-of the problems of offensive content effectively. ​ Having procedures in place has proven to be  
-more effective than ad hoc emergency responses. 
- 
-Commercial information providers such as data base services and computer bulletin boards have  
-certain responsibilities when providing services. ​ But they should also be able to pursue their  
-business as long at it does not contravene the Criminal Code or local regulations. ​ Some  
-organizations have already introduced certain controls such as asking for proof of age or a credit ​ 
-card before adult-oriented material is accessed. ​ Similarly, Freenets and other community-based ​ 
-networks already use newsservers that prevent direct access to discussion groups deemed ​ 
-unsuitable for a general audience. ​  But are other measures necessary? ​ Should information ​ 
-providers be encouraged to adopt voluntary codes of conduct as opposed to licensing or  
-regulation? ​ What would voluntary codes of conduct entail? 
- 
-Turning from the supply to the demand side, it is clear that individuals have access to  
-information services from the home.  Individuals should have the right and the ability to control ​ 
-the information flows coming into their home.  In doing so, however, they must not infringe on  
-the rights of others to express themselves. ​ Some online information services provide various ​ 
-control measures for home-based consumers such as password protection associated with  
-different discussion groups. ​ What else can be done to help individuals,​ parents, and families ​ 
-deal with offensive content accessible from the home?  
- 
-Adaptive filters which permit multiple user profiles already exist. ​ If they can seek and find, it  
-is only a minor modification to seek and screen. ​ By permitting hundreds or thousands of  
-unique individual profiles, the "​knowbots"​ or software search engines can provide personalized ​ 
-information controls. ​ What can be done to encourage research and development of technical ​ 
-solutions for offensive content? ​ What should be the focus of R & D in controlling offensive ​ 
-content available via on-line services? 
- 
-Parents, of course, have some responsibility for teaching their children the basic rules of the  
-info-highway in the same way that they now "​street-proof"​ their kids.  In the digital ​ 
-environment,​ what are the responsibilities of parents to protect their children and to supervise ​ 
-their children'​s on-line behaviour? 
-Given the flurry of issues that are emerging with computer-mediated communication,​ there  
-appears to be a certain degree of confusion on the part of the public and many information ​ 
-providers regarding what is and is not permissable. ​ Do service providers understand their  
-obligations and liability under the various laws pertaining to offensive communication? ​ What is  
-the federal government'​s obligation with respect to providing education about the rules of the  
-information highway to information providers and the public? ​ 
- 
-These and other questions related to controlling offensive content on the information highway ​ 
-demand some serious consideration. The following recommendations have been developed to  
-introduce a framework for further discussion. 
- 
-(1) Principles applied to traditional media should be applied to computer-mediated ​ 
-communications. ​ The Criminal Code and a substantial body of media case law can guide  
-our way in these new circumstances.  ​ 
- 
-(2) The federal government should examine legislative measures, specifically,​ with regard to  
-clarifying the question of liability of owners, operators, and users of bulletin boards, ​ 
-Internet and Usenet sites. 
- 
-(3) The federal government should explore bilateral and multilateral arrangements at the  
-international level in order to deal with jurisdictional problems in the control of harmful ​ 
-or illegal communication on global networks. 
- 
-(4) Service providers and the user community should be educated in what is and is not  
-permissable.  ​ 
- 
-(5) The federal government should explore whether bulletin boards and other service ​ 
-providers are amenable to a voluntary code of conduct. 
- 
-(6) To facilitate arriving at community standards, complaint resolution procedures should be  
-put in place prior to any incident. ​ Ad hoc crisis management rarely upholds the delicate ​ 
-balance between freedom of expression and communicative injury. ​  ​Guidebooks ​ 
-outlining such procedures could be developed in cooperation with interested parties so  
-that if an incident does arise in a given context, a reasonable response can be delivered in  
-a timely fashion. 
- 
-(7) Technical solutions should be pursued which ensure that individuals,​ parents, businesses, ​ 
-community-based organizations or public institutions (such as schools or libraries) have  
-the ability to select easily the content they want and block out the rest. (For example, ​ 
-passwords help ensure restricted access; user validation and certain payment mechanisms ​ 
-uphold age restrictions;​ adaptive filters on home personal computers will screen out  
-inappropriate violent or sexual content.) 
- 
- 
- 
-BIBLIOGRAPHY 
- 
- 
-Anderson, Bart, Bryan Costales & Harry Henderson. The Waite Group'​s UNIX  
-Communications. Second Edition. Carmel: SAMS, 1991. 
- 
-Barnett, C. S. "​Obscenity and s.150 (8) of the Criminal Code". The Criminal Law Quarterly. ​ 
-Vol. 12, 10-29. 
- 
-Barret, Stanley R. Is God A Racist? The Right Wing in Canada. ​ Toronto: University of  
-Toronto Press, 1987. 
- 
-Borovoy, A. Alan. When Freedoms Collide: The Case For Our Civil Liberties. Toronto: Lester ​ 
-& Orpen Dennys, 1988. 
- 
-Boyd, N. Sexuality and Violence, Imagery and Reality: Censorship and the Criminal Control of  
-Obscenity. Working Papers on Pornography and Prostitution. Report # 16. Department of  
-Justice, Canada, July 1984. 
- 
-Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against ​ 
-Children. Two Volumes. Ottawa: Ministry of Supply and Services, 1984. 
- 
-Canada. Special Committee on Hate Propaganda. Report of the Special Committee on Hate  
-Propaganda in Canada. ​ Ottawa: Queen'​s Printer, 1966. 
- 
-Canada. Special Committee on Pornography and Prostitution. Pornography and Prostitution in  
-Canada: Report of the Special Committee on Pornography and Prostitution. Vol.1. ​ Ottawa: ​ 
-Supply and Services, 1985. 
- 
-Carroll, Jim & Rick Broadhead. Canadian Internet Handbook: 1994 Edition. Scarborough: ​ 
-Prentice-Hall,​ 1994. 
- 
-Canadian Human Rights Commisssion. Introduction to the Canadian Human Rights Act:  
-Reference Maual. Ottawa, September 1985. 
- 
-Charles, W. H. "​Obscene Literature and the Legal Process in Canada"​. Canadian Bar Review, ​ 
-Vol.44, 1966, 243-292. 
- 
-City of Ottawa. "​Licenses -- Adult Video Stores"​. Department of Engineering and Works. Final  
-Notice (EW-182-26). ​ September 21, 1994. 
- 
-Cleaver, Barry, Margaret Ann Wilkinson, Gailina Liew, Janet Campbell, Graeme Sperryn. ​ 
-Handbook Exploring the Legal Context for Information Policy in Canada. Faxon/SMS Canada.  ​ 
-National Summit on Information Policy, December 1992. 
- 
-Coats, James. Armed and Dangerous: The Rise of the Survivalist Right. New York: Noonday ​ 
-Press, 1987. 
- 
-Copp, David and Susan Wendell (Eds.). Pornography and Censorship. Buffalo (N.Y.): ​ 
-Prometheus Books, 1983. 
- 
-Dean, Malcolm. Censored Only in Canada. Toronto: Virago Press, 1981. 
- 
-Dibble, Julian. "A Rape in Cyberspace: How an Evil Clown, a  Haitian Trickster Spirit, Two  
-Wizards, and a Cast of Dozens Turned a Database into a Society"​. The Village Voice. Vol 38,  
-No. 51 (December 21, 1993), 36-42. 
- 
-Donnerstein,​ Edward, Daniel Liz & Steven Penrod. ​ The Question of Pornography:​ Research ​ 
-Findings and Policy Implications. New York: The Free Press, 1987. 
- 
-El Komos, M. Canadian Newspaper Coverage of Pornography and Prostitution:​ 1978-1983. ​ 
-Working Papers on Pornography and Prostitution. Report # 5. Department of Justice, Canada, ​ 
-July 1984. 
- 
-Geller-Schwarz,​ Linda (Ed.). From Awareness to Action: Strategies to Stop Sexual Harassment ​ 
-in the Workplace. Ottawa: Women'​s Bureau, Human Resource Development Canada, 1994. 
- 
-Gibbs, Mark & Richard Smith. ​ Navigating the Internet. Indianapolis:​ Sams Publishing, 1993. 
- 
-Gilster, Paul. The Internet Navigator New York: John Wiley & Sons, 1993. 
- 
-Hawkins, Gordon & Franklin E. Zimring. Pornography in a Free Society. Cambridge: ​ 
-Cambridge University Press, 1991. 
- 
-Kendrik, Walter. ​ The Secret Museum: Pornography in Modern Culture. New York: Penguin ​ 
-Books, 1988. 
- 
-Kinsella. Web of Hate: Inside Canada'​s Far Right Network. Toronto: Harper Collins, 1994. 
- 
-Krol, Ed. The Whole Internet: User's Guide & Catalog. Sebastopol: O'​Reilly & Associates, ​ 
-Inc., 1992. 
- 
-Law Reform Commission of Canada. Hate Propaganda. ​ Working Paper 50, 1986. 
- 
-Mackay, R.S. "​Recent Developments in the Law on Obscenity"​. Canadian Bar Review, Vol.32, ​ 
-1954, 1010-1018. 
- 
-Mackay, R.S. "The Hicklin Rule and Judicial Censorship"​. Canadian Bar Review, Vol.36, ​ 
-1958, 1-24. 
- 
-McKay, H.B. & D.J. Dolff. The Impact of Pornography:​ A Decade of Literature. Report ​ 
-Prepared for the Department of Justice Canada. 1984. 
- 
-Mehta, Michael D. and Dwaine E. Plaza. "A Content Analysis of Pornographic Images on the  
-Internet"​. ​ Paper presented at the Symposium on Free Speech and Privacy in the Information ​ 
-Age.  University of Waterloo. ​ November 26, 1994. 
- 
-New Zealand. Ministerial Committee of Inquiry into Pornography. ​ Pornography:​ Report of the  
-Ministerial Committee of Inquiry into Pornography. Wellington: The Committee, 1988. 
- 
-Prentice, Maja (MCO Chairperson). Mississauga Committee on Obscenity: An Ad Hoc  
-Volunteer Committee in Review of the Impact of Explicit Pornography on the Community. June  
-1993. 
- 
-Price, David. "The Role of Choice in a Definition of Obscenity"​.Canadian Bar Review, Vol.57, ​ 
-1979, 301-324. 
- 
-Quarterman, John. The Matrix: Computer Networks and Conferencing Systems Worldwide. ​ 
-Digital Press, 1990. 
- 
-Quittner, Josh. "​Johnny Manhattan Meets the FurryMuckers"​. Wired. Vol. 2, No. 3 (March ​ 
-1994), 92-97, 138. 
- 
-Rheingold, Howard. "​Cyberspace"​. Whole Earth Review Winter 1994: 95. 
- 
-Robertson, James R. Pornography -- Current Issue Review 84-3E. ​ Ottawa: Library of  
-Parliament, Research Branch. ​ February 15, 1984.  Revised May 16, 1994. 
- 
-Rosen, Philip. Hate Propaganda -- Current Issue Review 85-6E. ​ Ottawa: Library of  
-Parliament, Research Branch. ​ January 28, 1985.  Revised May 16, 1994. 
- 
-Rosenberg, Richard. "Free Speech, Pornography,​ Sexual Harrassment,​ and Electronic ​ 
-Networks"​. The Information Society. ​ Oct-Dec. 1993, 9(4): 285-331. 
- 
-Rosenberg, Richard. "Free Speech, Pornography,​ Sexual Harrassment,​ and Electronic ​ 
-Networks: An Update and Extension"​. Paper delivered at Autoroutes Electroniques conference.  ​ 
-Montréal, Québec. May 13 1994, 1-30. 
- 
-Shade, Leslie Regan. "​Ethical Issues in Electronic Networks: The Case of Usenet'​s alt.sex ​ 
-hierarchy and the Canadian University Community"​. ​ Technoculture and Feminism Panel. ​ 
-NEMLA, April 8-9, 1994. 
- 
-Shade, Leslie Regan. "​Desperately Seeking Karla: the Case of alt.fan.karla.homolka"​. Paper  
-delivered at Canadian Association of Information Science. ​ May 25-27, 1994. McGill ​ 
-University. 
- 
-Sher, Julian. White Hoods: Canada'​s Ku Klux Klan. Vancouver: New Star Books, 1983. 
- 
-United States. ​ Attorney General'​s Commission on Pornography. Final Report. Vol.1. ​ 
-Washington, D.C.: U.S. Dept. of Justice, 1986. 
- 
-Selected Case Law 
-Obscenity: 
- 
-Brodie, Dansky and Rubin v. Regina [1962] S.C.R. (Supreme Court Reports), 681-711. 
- 
-Dominion News and Gifts Ltd v. Regina [1964]. S.C.R. (Supreme Court Reports), 251-252. 
- 
-Re Nova Scotia Board of Censors et al. and McNeil. 84 D.L.R. (Dominion Law Reports)(3d), ​ 
-1-29. 
- 
-Regina v. 294555 Ontario Limited et al., 39 C.C.C. (2d), 352-355. 
- 
-Regina v. Butler [1992]. 1 S.C.R. (Supreme Court Reports), 452-526. 
- 
-Regina v. Goldberg and Reitman, 4 C.C.C. (2d), 187-191. 
- 
-Regina v. Harrison, 12 C.C.C. (2d), 26-29. 
- 
-Regina v. Prairie Schooner News Ltd. and Powers, 1 C.C.C. (2d), 251-272. 
- 
-Regina v. The MacMillan Company of Canada Ltd., 31 C.C.C. (2d), 286-322. 
- 
-Regina v. Red Hot Video Ltd. [1985], 45 C.R. 295. 
- 
-Regina v. Rioux [1969] S.C.R. 599, [1970] 3 C.C.C. 149. 
- 
-Towne Cinema Theatres v. The Queen [1985] 1 S.C.R.(Supreme Court Reports), 494. 
- 
-Hate Propaganda: 
- 
-Ernst Zundel v. Regina. [1992]. 
- 
-Regina v. Andrews et al.. Ontario Reports [1988] 65 (O.R. (2d)), 161-196. 
- 
-Regina v. Keegstra. Western Weekly Reports [1988] 5 (W.W.R.), 211-240. 
- 
-Regina v. Keegstra. [1990]. 3 S.C.R. (Supreme Court Reports), 697-869. 
- 
-Harassment: 
- 
-Robichaud v Canada (Treasury Board) [1987], 8 C.H.H.R. D/4326 (S.C.C.). 
- 
-Janzen and Govreau v. Platy Enterprises [1989] 1 S.C.R. 1252; (1989), 10 C.H.H.R. D/6205. 
- 
- 
- 
-Selected Newspaper and Magazine Articles 
- 
-Abraham, Carolyn. "Crime in Cyberspace"​. The Ottawa Citizen. April 23, 1994. 
- 
-"​Authorities Say Bulletin Boards Hard To Control"​. Vancouver Sun. May 19, 1992. 
- 
-"Bits and bytes of pornography have universities in quandry"​ The Ottawa Citizen. July 3, 1992,  
-A4. 
- 
-Boisvert, Yves. "La Cour d'​appel préserve l'​«affichage érotique»"​. La Presse. August 25 1994,  
-A1-A2. 
- 
-Bulkely, William M. "​Censorship Fight Heats Up on Academic Networks"​. ​ Wall Street ​ 
-Journal, May 24, 1993, B1. 
- 
-Chapman, Paul. "​Varsities grappling with porn in network"​. The Province (Vancouver). July 7,  
-1992. 
- 
-Chow, Wyng. "​Transmission of pornography disturbs universities"​. Vancouver Sun. July 3,  
-1992, A9. 
-  
-"​Computer network porno prompts mixed reaction"​ Calgary Herald. July 3, 1992. 
- 
-"​Computer Cleaned Up" The Toronto Sun. May 28, 1992. 
- 
-D'​Amato,​ Luisa. "UW computers carry '​obscene'​ material"​. Kitchener-Waterloo Record. July  
-2, 1992, A1. 
- 
-Elmer-Dewitt,​ Philip. "​Battle for the Soul of the Internet"​. Time, July 25, 1994 <?>, 40-xx. 
- 
-Gooderham, Mary. "​Homolka facts speed across data highway"​. Globe & Mail, December 2,  
-1993, A4. 
- 
-Hum, Peter. "'​The pictures and whatever were just geting too disgusting':​ Carleton censors ​ 
-computer porn, U of O doesn'​t"​. The Ottawa Citizen. July 4, 1992. 
- 
-Jeffs, Allyson. "​High-tech information '​smuggling'​ re-ignites debate over media ban". Ottawa ​ 
-Citizen, December 4, 1993, B4. 
- 
-Jenish, D'​Arcy. "The King of Porn". Maclean'​s. ​ October 11, 1993, 52-56. 
- 
-Jorgensen, Randy. "​Don'​t moralize under guise of regulating"​. ​ The Ottawa Citizen. September ​ 
-18, 1994, A11. 
-Kavanaugh, Cindy. "​Computer Porn Hits University Campus"​. Windsor Star. July 9, 1992,  
-A5. 
- 
-Monteiro, Liz. "​Police won't probe UW porn". Kitchener-Waterloo Record. July 3, 1992, B1. 
-Moon, Peter. "​Computers graphic when it comes to porn". The Globe and Mail. July 20, 1992,  
-A1. 
- 
-Moon, Peter. "​Computer porn prompts outcry"​. The Globe and Mail. July 20, 1992, A5. 
- 
-Moon, Peter. "​Network lets users 'say what they think'"​. The Globe and Mail. July 20, 1992,  
-A5. 
- 
-Paul, Alexandra. "U of M taking byte out of offensive software"​. Winnipeg Free Press. ​ 
-Saturday May 9, 1992. 
- 
-Prentice, Maja. "​Regulation of porn must reflect local community standards"​. The Ottawa ​ 
-Citizen. September 18, 1994, A11. 
- 
-Sandberg, Jared. "New Software Filters Sexual, Racist Fare Circulated on Internet"​. The Wall  
-Street Journal. ​ May 15, 1995, B2. 
- 
-Sharpe, Geoffrey. ​ "​Restrict location, numbers of outlets"​. The Ottawa Citizen. September 18,  
-1994, A11. 
- 
-Simone, Rose. "UW official can't evade porn issue"​. Kitchener-Waterloo Record. July 10,  
-1992, C1. 
- 
-Smith, Michael. "​Grisly details available on computer networks"​. Toronto Star December 1,  
-1993, A4. 
- 
-"​Universities'​ reactions differ over computer bondage scenes"​. The Hamilton-Burlington ​ 
-Spectator. July 3, 1992, B5. 
- 
-Unland, Karen. "​Pornography in university computer system will stay, official says". The  
-Edmonton Journal. July 11, 1992, B1. 
- 
-Unland, Karen. "​Women'​s group wants review of computer network porn". The Edmonton ​ 
-Journal. August 8, 1992, C2. 
- 
-"​Violent porn boots up: network sending offensive transmissions to universities"​. The Province ​ 
-(Vancouver). July 3, 1992. 
- 
-"Women urged to oppose obscene transmissions"​. Kitchener-Waterloo Record. July 2, 1992,  
-A2. 
- 
- 
- 
-Selected Documents Available via the Internet 
- 
-Bartle, Richard. Interactive Multi-User Computer Games. Report Prepared for British Telecom. ​ 
-December 1990.  Available by anonymous ftp from parcftp.xerox.com: ​ 
-/​pub/​MOO/​papers/​mudreport.*. 
- 
-Berlet, Chip. "​Christian Identity, Survivalism & the Posse Comitatus"​. Posted to alt.activism ​ 
-September 30, 1992.  Available on listerv@oneb.almanac.bc.ca as CHR-IDEN.01. 
- 
-Boyce, Jim. July 14, 1992 article from The Cord. (posted to: alt.comp.acad-freedom.talk, ​ 
-alt.censorship;​ 13 Aug 1992) Available by anonymous ftp from ftp.eff.org as wlu.ca ​ 
- 
-Buhr, Kevin Andrew. "FP Article Confirms Billionth Monkey Hypothesis"​. Message-ID: ​ 
-<​1992May10.093635.27536@ccu.umanitoba.ca>​. Sun, 10 May 1992 09:36:35 GMT; Posted ​ 
-to local.unix.general,​ wpg.general,​ alt.comp.acad-freedom.talk;​ Available from cafv02n21. 
- 
-Campbell, K.K. ".SIG HEIL: Holocaust revisionism goes up in flame wars". Posted to: eye  
-WEEKLY <​eye@interlog.com>,​ November 10, 1994. 
- 
-Godwin, Mike. "​Internet Liability: Is the Provider Responsible"​. from Internet World. ​ 
-Nov./Dec 1993.  Available by anonymous ftp from ftp.eff.org. 
- 
-Hardy, Henry Edward. The History of the Net. Master'​s Thesis. "​Unpublished"​ draft. v 8.5,  
-September 28, 1993. 
- 
-Kahn, John R. "​Defamation Liability of Computerized Bulletin Board Operators and Problems ​ 
-of Proof"​. CHTLJ Comment. ​ February 1989. 
- 
-Kamens, Jonathan. "How to Become a USENET Site". Editor and Poster: Chris Lewis  
-<​clewis@ferret.ocunix.on.ca>​. Feb. 16 1994. Posted periodically to: news.admin.misc, ​ 
-news.announce.newusers,​ news.answers 
- 
-Lang, Margot. "​Computer Libel Wins Academic $40,​000"​. The West Australian. April 2,  
-1994. Posted by Inge Lauw <​ilauw@cleo.murdoch.edu.au>​ to  
-dispute-res@listserv.law.cornell.edu,​ April 6, 1994. 
- 
-Lewnes, Alexia. "​Cracking down on child pornography"​. (April/June 1994). ​ 
- 
-MacKinnon, Richard Clark. Searching for the Leviathan in Usenet. ​ Masters Thesis. San Jose  
-State University. December 1992. 
- 
-Mahoney, Bob. "What Files are Legal for Distribution on a BBS?". Exec-PC Multi-user BBS,  
-1989. 
- 
-NMEC (National Center for Missing and Exploited Children). ​ "Child Safety on the  
-Information Highway"​. 1994.  Available from the Electronic Frontier Canada gopher ​ 
-(insight.mcmaster.ca/​11/​org/​efc). 
- 
-Rafaeli, Sheizaf and Robert J. LaRose. "​Electronic Bulletin Boards and "​Public Goods" ​ 
-Explanations of Collaborative Mass Media" 
- 
-Reid, Elizabeth M. Electropolis:​ Communication and Community on Internet Relay Chat.  ​ 
-Honours Thesis. University Of Melbourne, 1991. 
- 
-Riddle, Michael H. "The Electronic Pamphlet -- Computer Bulletin Boards and the Law". 
- 
-Salzenberg, Chip, Gene Spafford & Mark Moraes. "​what-is-usenet/​part1"​. periodically posted ​ 
-to news.announce.newusers,​ October 28, 1994. 
- 
-University of British Columbia. Report of the Task Force on the Appropriate Use of  
-Information Technology. Vancouver, B.C., December 1992. [Available via anonymous ftp  
-from ftp.ucs.ubc.ca in /​pub/​info/​reports] 
- 
-Vielmetti, Edward. "What Is Usenet? ​ A Second Opinion"​. Periodically posted to  
-news.announce.newusers. Originally posted Dec. 26, 1991. 
- 
-Woods, Greg. "​Guidelines for USENET Group Creation"​. Enhanced & edited until 5/93 by  
-spaf@cs.purdue.edu (Gene Spafford); Last-change:​ 30 Nov 1993 by tale@uunet.uu.net 
-Posted to news.announce.newusers,​ news.groups,​ news.admin.misc, ​ 
-news.announce.newgroups,​ news.answers 
- 
- 
- ​  ​ The majority of boards only have one phone line, permitting only one person to access the board at a time.  ​ 
-Line counts are growing, however, and multi-line bulletin boards are becoming more common, particularly in the 4-line ​ 
-to 12-line range. ​ Probably the largest BBS in Canada (and one of the biggest in the world) is Canada Remote Systems ​ 
-located in Mississauga. ​ It has 201 lines and has over 9,000 paid subscribers. ​ 
-  
- 
- 
- ​  ​ The "Great Renaming"​ (which provoked heated exchanges between Netdenizens) began in July 1986 and  
-was completed in March 1987.  "One reason for the renaming was the increasing number of groups made such a  
-reorganization of the highest level domains advantageous for organizational reasons. ​ Another reason was to put  
-controversial groups in the "​talk"​ domain which was added towards the end of the Renaming, so that it would be  
-easier for administrators who wished to remove such groups from their newsfeed to do so.  This was considered more  
-desirable and practical than attempting to eliminate controversial newsgroups."​ [Truscott, 1993] (in Hardy 1993) 
-  
- 
- 
- ​  ​ Many adult magazines which do carry advertising are not members of A.B.C. and, of course, adult  
-magazines which do not have any advertising (except for their own products) would have no incentive to be A.B.C. ​ 
-members. 
-  
- 
- 
- ​  ​ The Committee states: 
- 
- Many of the more explicit or fetish-oriented titles appear only for a single issue. ​ "​Volume One,  
-Number 2" is never produced, but in its stead, the same publisher will introduce "​Volume One,  
-Number One" of a closely related magazine, one often having a very similar title. ​ This practice is  
-intended to protect the publisher from law enforcement activity.... Since the National Accessibility ​ 
-Survey was conducted over a period of several months, it is certain that the 540 titles listed include ​ 
-many that have since disappeared,​ and have been succeeded by other titles ...  If a single series of  
-such titles is regarded as representing de facto, only a single publication,​ the total of 540 different ​ 
-magazines may in fact be considerably inflated. (Badgley Committee 1984: 1249). 
-  
-   In "​softcore"​ adult movies, sexual intercourse is (a) simulated or (b) filmed and edited to  
-avoid close-ups of the genitalia. ​ Unlike so-called "​hardcore"​ pornography,​ erect penises, ​ 
-fellatio, penetration,​ and ejaculation are not shown. ​ "​Hardcore"​ as it is being used here  
-does not mean illegal (i.e., obscene according to the Criminal Code) but instead refers to  
-the style which has typified the adult film industry for more than two decades (since ​ 
-roughly 1972-73). 
- 
- 
- ​  ​ MUDs (or as they are called in the UK Multi User Adventures MUAs) are a cross between a text-based ​ 
-adventure game and a multi-user real-time chat system (cf. Bartle 1990). ​ For an introduction to MUDs which include ​ 
-sexual bantering see Julian Dibble (1993) or Josh Quittner (1994). 
-  
- 
- 
- ​ Based on a random sample from sexually explicit alt. newsgroups, Mehta and Plaza'​s analysis reveals: 
- 
- Of the 150 pornographic images analyzed, 65% are distributed non-commercially by anonymous network ​ 
-users, 81% are colour, 92% are digitized [i.e., scanned], and 49% were coded as "high quality"​. ​ These  
-findings suggest that a significant proportion of computer pornography is taken directly from magazines and  
-videos, presumably without copyright 
-permission or royalty payment. ​ (Mehta & Plaza 1994: 9) 
-  
- 
- 
- ​  ​ As Zombie Lambaddah posted on a BBS called Flesh Pit Droids: 
- 
- This is not some new obsession by keyboard-diddling computer punks any more than it is a recent ​ 
-eruption in such-and-such "youth subculture"​ or "​sexual underground"​. ​ Instead, it is a line in our  
-artistic, musical, and cultural experience which stretches back for decades. ​ We all know the icons.  ​ 
-Some of us have even read William Burroughs'​ cut-ups of needles and six-shooters,​ taken a ride  
-down Kerouac'​s road, or howled out Ginsburg'​s ode to Cassidy, "the cocksman of Adonis"​. ​ If the  
-Beats weren'​t your scene, maybe you dug the psychedelic Sixties of Ken Kesey and the Merry  
-Pranksters ... or possibly like Zappa and the Mothers you thought this was just a load of Kosmik ​ 
-debris. ​ Too West Coast? ​ Did you prefer to walk on the wild side, sliding into the urban ice and  
-transvestite smack of Andy Warhol'​s Factory, slurring along with the Velvet Underground? ​ Or  
-perchance you slipped in on the tail end of the '​Boomers,​ when stagflation and unemployment ​ 
-reduced fashion to safety pins and garbage bags, when Malcolm McLaren'​s great rock'​n'​roll swindle ​ 
-put the Sex Pistols into perspective and Siouxsie and the Banshees made you forget Nico's sultry ​ 
-anthems. ​ Nor will it ever end, what with the industrial occultism of Genesis P-Orridge and the  
-Temple ov Psychick Youth or the American nightmare of G.G. Allin and the Murder Junkies ... I  
-know, it's only shock'​n'​roll,​ but they like it ... And don't dismiss this as some post-nuclear ​ 
-aberration ​  some look back fondly on Dada and the Cabaret Voltaire over sixty years gone ... or  
-peer longingly into the last century seeking out Baudelaire and the fin-de-siecle decadents ​  ​all ​ 
-shining examples of the excess and the heterogeneity so dear to the philosopher-writer,​ Georges ​ 
-Bataille. 
-  
- 
- 
- ​  ​ The description is intended to incite the view that this is an act of violence (evident from the editorial ​ 
-intrusion: "as if she is screaming"​) perpetrated by a man against a woman. ​ Of course, we really do not know the  
-partner'​s gender. ​ If, for example, this image had been posted on alt.sex.motss (i.e., members of the same sex) one  
-might suspect that the unseen partner was female. 
-  
- 
- 
- ​  ​ Apologists would claim that such images of bondage, sadism, or masochism are examples of consensual ​ 
-(often primarily theatrical) practices engaged in by consenting adults. ​ Bondage magazines almost always carry a  
-disclaimer such as: "The depictions of casual bondage in this ... magazine convey the satisfactions that men and  
-women experience together when they practice bondage within the context of mutual trust and consent. ​ We strongly ​ 
-discourage readers from imitating these depictions by themselves outside the boundaries of a loving relationship, ​ 
-without an alert partner." ​ Proponents claim such images are not about the degradation of women per se but the  
-exploration of S/M fantasias. ​ On a week by week basis, the preponderance of images in the newsgroup ​ 
-alt.sex.bondage are not pictures of men dominating women -- there are depictions of dominants and submissives of  
-both genders in various combinations. ​ In addition, as The Globe and Mail reported, among the contributors to  
-alt.sex.bondage are women, some of whom identify themselves as libertarians others as feminists (Moon: July 20,  
-1992). 
-  
- 
- 
- ​  ​ A rare exception to this confusion was The Edmonton Journal'​s article on July 11, 1992. 
-  
- 
- 
- ​  ​ In his overview "Free Speech, Pornography,​ Sexual Harassment, and Electronic Networks"​ (1993), Richard ​ 
-Rosenberg proposed the following principles for dealing with offensive material on the Internet: 
- 
- Administrative Principles 
- ​ (1) Do not treat electronic media differently than print media, or traditional bulletin boards, merely ​ 
-because they can be more easily controlled. 
- ​ (2) Do not censor potentially offensive material on networks: Encourage the use of sexual harassment ​ 
-procedures, if appropriate. 
- ​ (3) Be aware of your responsibility with respect to the uses and misuses of your facilities. ​ However, ​ 
-do not use cost of services as an excuse to censor and limit access. 
- ​ (4) Trust,​ and educate, people to be responsible. 
- 
- Social Principles 
- ​ (1) Issues will proliferate beyond the ability of organizations to control them by rigid policies. 
- ​ (2) Occasional offensive postings do not detract from the benefits of electronic networks. ​ (Rosenberg ​ 
-1993: 287) 
-  
- 
- 
- ​  ​ Computer Underground Digest is an on-line electronic journal or newsletter (available through USENET as  
-comp.society.cu-digest as well as through CompuServe, GEnie, and America Online). ​ It was originally started by a  
-group of sociologists and political scientists as a means of sharing information on law enforcement responses to  
-bulletin boards during the "​hacker-crackdown"​ of 1990 (search warrants were made available, trial proceedings ​ 
-presented, newspaper reports summarized, etc.). ​ It currently provides a forum for academics, computer ​ 
-professionals,​ hackers, and journalists to monitor and debate issues of mutual concern. 
-  
- 
- 
- ​  ​ These difficulties associated with the Hicklin test were exposed by Laidlaw ​ J.A. in his Ontario Court of  
-Appeal judgement in R. v. American News Co. Ltd. (1957), 118 Can C.C. 152: 
- 
- The words "​deprave"​ and "​corrupt"​ as contained in the test of obscenity are indefinite and  
-uncertain in meaning. ​ It is not sufficient in law that a matter charged as obscenity should merely be  
-disgusting or repulsive. ​ Conversely, it is not necessary that the matter be salacious or unsavoury to  
-be obscene. ​ Indeed, for instance, a book may be inoffensive in its content, but if it is calculated to  
-deprave and corrupt it might fall within the test of obscenity in law.  I observe, too, that the effect ​ 
-of the tendency may vary in character. ​ The tendency might 
-be to "​suggest thoughts of a most impure and libidinous character",​ as pointed out by Cockburn C.J. in the Hicklin ​ 
-case; or it might be to influence certain persons to do impure acts; or it might be to imperil the prevailing standards of  
-public morals ... [T]he test of obscenity is stated explicitly to be applicable to persons "whose minds are open to such  
-immoral influences and into whose hands a publication of this sort may fall"​. ​ Thus the test embraces both adults and  
-youth ... "​normal"​ as well as ... "​abnormal"​. ​ In each case the finding depends upon a consideration of the effect of  
-the matter in question on persons into whose hands it may fall and whose minds are open to influences of a  
-corruptive kind.  The person into whose hands any matter charged as obscenity might fall is again uncertain in both  
-theory and practice... ​ The question as to whose minds are open to corruptive influences is, again, a question to  
-which there is no certain or definite answer. ​ A tribunal called upon to consider that question must imagine a class of  
-persons who in the particular circumstances of the case may be susceptive to immoral influences... The Court can  
-only conjecture in a judicial manner as to the class of persons who might fall within the description. ​ (Laidlaw footnote ​ 
-2, pp.157-158; in Mackay 1958: 12) 
-  
- 
- 
- ​  ​ As early as 1913, in United States v. Kennerley, Judge Learned Hand found the Hicklin test wanting: 
- 
- ... it seems hardly likely that we are even to-day so lukewarm in our interest in letters or serious ​ 
-discussion as to be content to reduce our treatment of sex to the standard of a child'​s library in the  
-supposed interest of a salacious few ... To put thought in leash to the average conscience of the  
-time is perhaps tolerable, but to fetter it by the necessities of the lowest and the least capable ​ 
-seems a fatal policy. (in Mackay 1958: 20, footnote 33) 
-  
- 
- 
- ​  ​ Mackay states: 
- 
- ​ First,​ it is the dominant nature of the book taken as a whole which is considered in  
-Ulysses, whereas the Hicklin test has been applied so as to permit a book to be condemned as  
-obscene solely because of isolated words or passages ripped out of context. ​ One abstracted ​ 
-sensuality may be sufficient. 
- ​ Secondly,​ because the Ulysses test considers a book to be obscene only if its  
-objectionable features dominate the whole effect of the book, or if they are introduced purely as  
-"dirt for dirt's sake", it is necessary to make a highly complex evaluation of the book in terms of its  
-overall values, scientific, educational and 
-literary, and in terms of the relevancy of the objectionable portions. ​ Hence expert critical opinion is not only  
-admissible but is persuasive evidence on the first score, and the purpose and sincerity of the author is clearly material ​ 
-to the issue of relevancy and "​literary necessity"​ on the second, in order to judge the author'​s need to use whatever ​ 
-words and passages will produce the effect intended. ​ The Ulysses test, unlike the Hicklin test, calls for a close  
-appreciation of the nature and function of literature and although obscenity is still a question of fact the considerations ​ 
-involved require the application of special skills. ​ Hence, under the Ulysses test, opinion evidenced is not irrelevant or  
-superfluous on the ground the judge or jury has the same knowledge or ability any witness could have. 
-  On the other hand, because a book is obscene under the Hicklin rule if any passages ​ 
-therein may have an unfortunate tendency towards genital commotion in some adolescent reader ​ 
-the only questions are, in effect, is a given passage smutty? and might it adversely affect some  
-unknown degenerate who might read it and think that portrayal requires emulation? ​ Obviously a  
-juryman is just as capable and incapable respectively of answering these questions as anyone else  
-and therefore the opinion of anyone else, including the author, is irrelevant and inadmissible.  ​ 
-Neither, under the Hicklin rule, is the sincerity or purpose of the author the least bit material. ​ The  
-Hicklin rule escorts literature to the scaffold without a fair trial, by Star Chamber inquisition,​ and on  
-the basis of very doubtful, and in any event, unproved, premises. ​ (Mackay 1958: 19-20) 
-  
- 
- 
-    Sopinka affirmed that the community standard to be applied is a national one. ([1992] 1 S.C.R., p.476).  ​ 
-Price elaborated: ​ 
-  The standard is not one of a small segment of the community such as a university ​ 
-community: R. v. Goldberg and Reitman (1971), 4 C.C.C. (2d) 187, [1971] 3 O.R. 323 (Ont. C.A.). 
-  The standard is not that of one city: R. v. Kivergo (1973), 11 C.C.C. (2d) 463 (Ont. C.A.). 
-  The standard is that of Canadians in general, urban and rural, from coast to coast: R. v.  
-MacMillan Company of Canada Ltd (1976), 31 C.C.C. (2d) 286, at p. 322 (York, Ont. Cty Ct).  ​ 
-(Price 1979: 306, n. 24). 
-  
- 
- 
- ​  ​ Judge Sopinka was here affirming Dickson C.J.'s statement (in Towne Cinema Theatres Ltd. v. The Queen, ​ 
-[1985] 1 S.C.R., at pp.508-509):​ " ​ The cases all emphasize that it is a standard of tolerance, not taste, that is  
-relevant. ​ What matters is not what Canadians think is right for themselves to see.  What matters is what Canadians ​ 
-would not abide other Canadians seeing because it would be beyond the contemporary Canadian standard of tolerance ​ 
-to allow them to see it." 
-  
- 
- 
- ​  ​ The criminal enforcement of obscenity does not appear to be a particularly large enterprise of control. The  
-most recent comprehensive study is, unfortunately,​ more than ten years old.  At that time, less than 300 Canadians ​ 
-were charged each year with the offence; those convicted were invariably fined for their conduct [instead of being  
-sentenced to imprisonment]. ​ (Boyd 1984: 67) 
-  
- 
- 
- ​  ​ There are also ancillary problems. ​ Suppose the culprit cannot be tracked down or that if located, cannot be  
-prosecuted. ​ In such a circumstance,​ even though one might argue that the liability of the owner of the Canadian host  
-computer should be minimal, the public pressure that "​something must be done" may make the host computer an  
-unwarranted target. 
-  
-   Text filters are not a panacea, there are trade-offs which should be kept in mind.  Although they may offer  
-assistance to individuals or guardians, simple pattern-matching is a far cry from natural language comprehension or  
-any pragmatic understanding. ​ One of the most troubling examples which comes to mind affects hate propaganda ​ 
-rather than sexually explicit messages. ​ Although, for example, it would be a simple matter to block out hateful ​ 
-messages which employed derogatory terms, a message from one of the more sophisticated Holocaust deniers would  
-probably slip through. ​ Any attempt to screen out every message containing Holocaust denial would probably have the  
-side effect of blocking all messages pertaining to the Holocaust -- including refutations of Holocaust deniers and  
-virtually all legitimate historical discussion as well.  Paradoxically,​ such a consequence would achieve the ends of the  
-Holocaust deniers. ​ This example highlights that on its own a quick technical fix is insufficient. 
-   ​Alexia Lewnes reports: 
-A major child pornography ring, involving more than 100 people, was discovered in Sweden in 1992. Of those, ​ 
-only three were charged, since possession is legal. 
-"In Sweden, you are allowed to distribute child pornography to a close circle of friends,"​ says Helena Karlen, Project ​ 
-Leader for Radda Barnen [Swedish Save the Children]. "It only becomes illegal when it is distributed to the public for  
-commercial purposes, which is extremely difficult to prove."​ (Lewnes 1994) 
-   Many in the British Columbia BBS community were outraged by the raid (see the log of BBS discussions at  
-gopher://​insight.mcmaster.ca). ​ The owner of one of the raided bulletin boards, for example, had corresponded with  
-the B.C. Attorney General in May 1994, explaining that he operated an adult bulletin board. ​ He outlined how he  
-validated everyone who accessed the BBS to ensure that they were adults (using call-back procedures and requiring a  
-hardcopy proof of age).  In his letter to the Attorney General he stated: "It is my desire to operate this BBS within the  
-law.  What I would appreciate knowing is firstly, are we doing everything we are obliged to do to prevent access by  
-minors? ​ Secondly, what are the laws regarding what an "​adult"​ BBS may or may not carry online?" ​ The Attorney ​ 
-General responded in July 1994: 
- 
-I appreciate your concerns on operating such a service: however, ​ I regret that I cannot provide a legal opinion ​ 
-based only on the points raised in your letter. ​ I have taken the liberty of sending you a copy of the section in  
-the Criminal Code pertaining to obscenity (section 163) and the amendments on child pornography,​ for your  
-information. ​ You may wish to consult a lawyer for advice on your responsibilities regarding computer bulletin ​ 
-boards, obscenity, and safeguarding adult materials from minors. 
- 
-Observers of the case remarked that it was curious that the search warrant indicates that police action began shortly ​ 
-afterward specifically referring to activity "​Between the dates of September 21, 1994 and February 20, 1995..."​ 
- 
- 
- 
- 
- ​  ​ For example: 
- ​Harassment is any unwelcome physical, visual or verbal conduct. ​ It may include verbal or practical jokes, ​ 
-insults, threats, personal comments or innuendo. ​ It may take the form of posters, pictures, or graffiti. ​ It  
-may involve touching, stroking, pinching or any unwelcome physical contact, including physical assault.  ​ 
-Unwelcome sexual acts, comments or propositions are harassment. ​ (Canadian Human Rights Commission ​ 
-1991: 1) 
-  
-    This is under the condition that an employer is subject to the Canadian Human Rights Act (ie., the employer ​ 
-is a federal government department or is under federal jurisdiction). ​ Arjun P. Aggarwal has contended "that the  
-impact of the Supreme Court decision is not confined to employers under federal jurisdiction;​ employers in all  
-jurisdictions are affected..."​ (Aggarwal in Geller-Schwartz 1994: 65).  This should not be taken to suggest that the  
-jurisdictional scope of the Canadian Human Rights Act was expanded by the Robichaud decision. ​ Employers in "​all ​ 
-jurisidictions"​ are only affected in so far as courts will consider the Robichaud decision when interpreting the provincial ​ 
-rights codes which apply to those employers. ​ Aggarwal'​s analysis indicates the Supreme Court decision will have a  
-broad impact because of its clarification of the principles inherent in human rights legislation. 
- 
- 
-  Judge La Forest stated: 
- I should perhaps add that while the conduct of an employer is theoretically irrelevant to the imposition of  
-liability in a case like this, it may none the less have important practical implications for the employer. ​ Its  
-conduct may preclude or render redundant many of the contemplated remedies. ​ For example, an employer ​ 
-who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent ​ 
-recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such steps. ​ 
-These matters, however, go to remedial consequences,​ not liability. ​ (D.L.R. 585) 
-  
- 
- 
-  The Manitoba Human Rights Act was repealed in 1987 and replaced with The Human Rights Code which  
-expressly prohibits sexual discrimination in the workplace and defines harassment as "a series of objectionable and  
-unwelcome sexual solicitations or advances"​. 
-  
-    Note that the 1988 University of Waterloo decision to discontinue certain newsgroups was not framed in  
-terms of harassment, nor was it explicitly formulated in terms of obscenity. ​ Waterloo'​s most recent January 1994  
-decision to drop five newsgroups (thereby reversing decisions made in their 1991 policy) was also not formulated with  
-respect to harassment; however, this time it was explicitly framed in terms of obscenity. ​ According to the President ​ 
-of the University: "under the Criminal Code it is an offence for anyone to publish or distribute obscene material, and  
-the University is running a risk of prosecution if it knowingly receives and distributes obscene material. ​ In these  
-circumstances I felt the University had to protect itself."​ (Kadie 1994) 
- 
- 
- ​  ​ This does not cover all public places. ​ It is evident that movie theatres with restricted admittance, adult  
-video stores, and strip clubs are a certain sort of public place and yet routinely display pornographic images. ​ There  
-have been attempts to define where the line is drawn: 
- 
- ​Anti-pornography activists are attempting to move their fight into the realm of human rights law, and seek  
-to build on previous cases in which depictions of naked women in the workplace have been found to be  
-harassment of female employees. ​ The Ontario Human Rights Commission recently argued before a board of  
-inquiry that the presence of men's sex magazines in corner stores is a form of discrimination against women.  ​ 
-The case targets "​soft-core"​ materials, such as Penthouse and Playboy, which are generally considered to  
-meet the community standard of tolerance outlined by the Supreme Court of Canada in Butler. ​ In a 2-1  
-decision, the case was dismissed on a preliminary motion on the basis that the Commission had not complied ​ 
-with its statutory obligation to endeavour to effect a settlement before proceeding to a board of inquiry ​ 
-(Findlay and McKay v. Four Star Variety, 22 October 1993). ​ (Robertson 1994: 9) 
- 
-The Québec Court of Appeal recently struck down City of Montréal by-law #8887 "qui interdisait aux propriétaires de  
-commerces érotiques (bars de danseuses, peep shows, clubs vidéos, etc.) d'​utiliser dans leur affichage «la  
-représentation du corps humain»"​ (Boisvert 1994). 
-  
- 
- 
- ​  ​ Under the proviso that this is done "in the provision of goods, services, facilities or accommodation ... and  
-in matters related to employment"​. 
-  
- 
- 
- ​  ​ Rosenberg quoted an April 6, 1994 newsgroup posting which provided the outcome of the trial: "A Santa  
-Clara prosecutor says a Cupertino man [Deatherage] pleaded no contest to charges he used a computer bulletin board  
-to contact a 14-year-old boy with whom he later engaged in sadomasochistic sex..."​ (in Rosenberg 1994: 23).  Based  
-on a recent television news report, the no contest plea (rather than a guilty verdict) may have been accepted because ​ 
-the juvenile apparently represented himself as being 16 (the age of consent in California). 
-  
- 
- 
-  Stanley Barrett argues that the motives of the individuals who comprise the extreme right in Canada have a  
-religious component, and this is not restricted to overtly religious groups such as Christian Identity, Church of the  
-Creator, or the Church of Jesus Christ Christian: 
- 
- The view is reflected specifically in the belief of extreme racists that religion -- the Christian religion --  
-condemns blacks and other coloured peoples to an inferior, subhuman level, and identifies Jews as the  
-children of the Devil... White supremacists see intrinsic links between Western civilization,​ Christianity,​ and  
-the white '​race'​. ​ Civilization,​ they believe, is the special prerogative of white people, for only they have  
-been blessed by God with the moral and creative capacity to attain it.  Their call to the battle lines is based  
-on the assumption there exists today a massive, insidious, and relentless campaign by Jews and non-whites ​ 
-to attack the very foundation of Western Christian civilization. ​ The contention of white supremacists is that  
-if they lose the battle all mankind will suffer, for without the white man's leadership the world will descend ​ 
-into barbarism. ​ (Barrett 1987: 5) 
-  
- 
- 
- ​  ​ This skinhead organization is comprised of divisions which include the Confederate Hammer Skins (eight ​ 
-addresses in southern United States), the Eastern Hammer Skins (four addresses in eastern United States), a half a  
-dozen addresses in Europe, and a couple in Australia. ​ The Northern Hammer Skins have nine chapters in the U.S.  
-(eg., Detroit and the mid-West) and six in Canada (three addresses listed for Québec (Lachine, Levis, and Gatineau); ​ 
-one in Toronto, Ontario; one in Winnipeg, Manitoba; and one in Surrey, British Columbia). 
-  
- 
- 
- ​  ​ Chip Berlet downloaded material from four U.S. white supremacist bulletin boards (including the Aryan  
-Nations and the KKK) during the period January-June 1985.  The material was presented in the appendix to a  
-conference paper on Telecommunications and Privacy which Berlet delivered in 1985.  An electronic version is  
-available from listserv@oneb.almanac.bc.ca (the filename is racist.bbs). 
-  
- 
- 
- ​  ​ This is a new name for an old Montreal Nazi group called the National Socialist Christian Party, active in the  
-1930s and 1940s. 
-  
- 
- 
- ​  ​ In early 1990, an eighteen year-old neo-Nazi named Bill Harcus organized a Manitoba chapter of the Knights ​ 
-of the Ku Klux Klan.  For the next three years the Winnipeg-based KKK disseminated hate propaganda using leaflets, ​ 
-pamphlets and a telephone hate line out of Harcus'​s apartment. ​ "​According to evidence later presented in court, ​ 
-Harcus was attempting to set up a computerized white power '​bulletin board' in Manitoba with the assistance of Louis  
-Beam, Jr., the former Texas Grand Dragon"​ (Kinsella 1994: 42) but the BBS was never operational. 
-  
-   The front end proclaims: 
- 
-Welcome to the Ernst Zundel / Voice of Freedom / Samisdat Publishers temporary World Wide Web site. This  
-site is dedicated to providing truthful and honest information about Germany and Germans, past and present. ​ 
-All materials posted here are the personal opinion of the author! 
-We believe that we are protected by the following laws and statutes: In Canada, Section 2b of the Charter of  
-Rights and Freedoms; in the United States, by the First Amendment to the Constitution;​ and worldwide by  
-Article 19 of the United Nations Convention on Human Rights. 
- 
- 
- 
-  Of particular relevance are the subsections of 318: 
- (2) In this section, "​genocide"​ means any of the following acts committed with intent to destroy in whole or  
-in part any identifiable group, namely, 
-  (a) killing members of the group; or 
-  (b) deliberately inflicting on the group conditions of life calculated to bring about its  
-physical destruction. 
- (4) In this section, "​identifiable group" means any section of the public distinguished by colour, race, religion ​ 
-or ethnic origin... 
-  
- 
- 
- ​  ​ Section 319(7) defines "​communicating"​ to include communicating by telephone, broadcasting,​ or other  
-audible or visible means; and defines "​statements"​ to include words spoken or written or recorded electronically, ​ 
-electromagnetically or otherwise (as well as gestures, signs or other representations). 
-  
- 
- 
- ​  ​ For those charged under s.319(2), there are four special defences outlined in s.319(3) which will permit an  
-individual to avoid conviction: ​ 
-  (a) if he establishes that the statements communicated were true; 
-  (b) if, in good faith, he expressed or attempted to establish by argument an opinion on a  
-religious subject; 
-  (c) if the statements were relevant to any subject of public interest, the discussion of  
-which was for the public'​s benefit, and if on reasonable grounds he believed them to be true; or 
-  (d) if, in good faith, he intended to point out, for the purpose of removal, matters ​ 
-producing or tending to produce feelings of hatred toward an identifiable group in Canada. 
-  
- 
- 
- ​  ​ With respect to section 13, Rosen notes: "​Unlike the Criminal Code hate propaganda provisions, it is not  
-necessary to prove specific intent to succeed in showing the discriminatory practice and there are no special defences ​ 
-available to a respondent to such a complaint. ​ (Library of Parliament 1994: 7) 
-  
- 
- 
- ​  ​ Of course, it is not just individuals who can sue: 
- 
- ​ Corporations may also sue for libel and slander. ​ It is important to note, however, that the  
-reputation of a corporation is distinct from the reputation of the individuals associated with it.  ​ 
-Other entities such as professional associations may also sue in defamation, as long as there has  
-been some impairment to their ability in carrying out their objects. ​ (Cleaver et al. 1992: 79) 
-  
- 
- 
- ​  ​ There appear to be few online cases of defamation and even fewer actually reach a point where a decision ​ 
-is rendered. ​ For example, one of the most publicized recent defamation cases was settled out of court. ​ Suarez ​ 
-Corporation Industries (a direct-mail company) filed a defamation lawsuit (in Cuyahoga County, Ohio) against Brock  
-Meeks who posted a message on the Internet (in his electronic newsletter, "​Cyberwire Dispatch"​) calling one of the  
-company'​s mail-order offer a scam (cf. Wall Street Journal; April 22, 1994). 
-  
- 
- 
- ​ District Court Judge Leisure'​s rationale was based on a Supreme Court obscenity case (Smith v. California, ​ 
-361 U.S. 147, 152-53, 80 S.Ct. 215, 218-19, 4 L.Ed.2d 205 (1959)): 
- 
- In Smith, the Court struck down an ordinance that imposed liability on a bookseller for possession of an  
-obscene book, regardless of whether the bookseller had knowledge of the book's contents. ​ The Court  
-reasoned that "Every bookseller would be placed under an obligation to make himself aware of the contents ​ 
-of every book in his shop.  It would be altogether unreasonable to demand so near an approach to  
-omniscience." ​ 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. ​ 
-(Cubby, Inc. v. CompuServe Inc. 776 F. Supp. 135, 1991)  
-  
- 
- 
- ​  ​ For example, Bell Canada'​s Terms of Service (Item 10 of the General Tariff) approved by the Canadian ​ 
-Radio-television and Telecommunications Commission (CRTC) states in Article 16 that "Bell Canada is not liable for ...  
-defamation or copyright infringement arising from material transmitted or received over Bell Canada'​s facilities"​. ​ BBS  
-operators and universities which operate USENET hosts have been brought to court on both defamation and copyright ​ 
-infringement not because of their own actions but because of activities undertaken by users of their systems. 
-  
- 
- 
- ​  ​ Consider also the Supreme Court decision Re Nova Scotia Board of Censors et al. and McNeil (84 D.L.R. ​ 
-(3d) 1-29). ​ It acknowledged the legitimacy of Nova Scotia'​s Theaters and Amusements Act to regulate, supervise, ​ 
-and control the film business within their provincial jurisdiction. ​ However, Regulation 32 of the provincial Act was  
-regarded as being indistinguishable from the Criminal Code provision and was regarded as an invasion of the criminal ​ 
-law field reserved for the federal government. 
-  
- 
- 
- ​  ​ Not everything on cable television is programming -- if it is just alpha-numeric characters, still images and  
-sound -- eg., real estate channels and scrolling text news services -- it does not constitute programming. ​ Home  
-shopping channels are handled differently (cf. Exemption order respecting tele-shopping programming service ​ 
-undertakings CRTC 1995-14). 
-  
- 
- 
- ​  ​ Some high schools, rather than receiving Usenet feed directly from a university newsserver, receive their  
-news feed from a separate newsserver which provides only a subset of the newsgroups (acknowledging that different ​ 
-communities and age groups have different requirements). 
-  
- 
- 
- 
-18 
- 
- 
-