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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
-Adult Magazines & Books	  9
-Adult Video: Sale and Rental	 10
-Pay-TV and Satellite Delivery of Adult Movies	 11
-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:
-).  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-
-) 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
-/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
-, 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
-).
-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
-,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
-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.
-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:
-.	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.
-.	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.
-.	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:
-.	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.
-.	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-
-; 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
-,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
--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
-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-
-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
-, 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
-(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.,
-)
-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:
-)
-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,
-, 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
-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]
-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
-: 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
-s 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
-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
-, 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
-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,
-).  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,
-) 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
-(1985);  see also Daniel v. Dow Jones & Co., 137 Misc.2d 94, 102, 520 N.Y.S.2d
-, 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-
-) 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
-)
-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,
-, 1010-1018.
-Mackay, R.S. "The Hicklin Rule and Judicial Censorship". Canadian Bar Review, Vol.36,
-, 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
-.
-Price, David. "The Role of Choice in a Definition of Obscenity".Canadian Bar Review, Vol.57,
-, 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
-), 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),
--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,
-.
-Chow, Wyng. "Transmission of pornography disturbs universities". Vancouver Sun. July 3,
-, 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
-, 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,
-, 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
-, 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,
-, A11.
-Simone, Rose. "UW official can't evade porn issue". Kitchener-Waterloo Record. July 10,
-, C1.
-Smith, Michael. "Grisly details available on computer networks". Toronto Star December 1,
-, 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,
-. 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,
-.
-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,
-).
- 	  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
-: 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
-, 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
-: 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
-s 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,
-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).