ILLEGAL AND OFFENSIVE CONTENT
THE INFORMATION HIGHWAY
A Background Paper
Long Range Planning & Analysis (DPP)
Spectrum, Information Technologies and Telecommunications Sector (SITT)
June 19, 1995
TABLE OF CONTENTS
WHAT IS OFFENSIVE COMMUNICATION? 1
COMMUNICATION IN A DEMOCRATIC SOCIETY 1
COMPUTER-BASED MEDIA 3
COMPUTER BULLETIN BOARD SYSTEMS (BBS) 3
THE CURRENT SITUATION: THE AVAILABILITY OF SEXUALLY EXPLICIT
Adult Magazines & Books 9
Adult Video: Sale and Rental 10
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
Controlling Access to On-line Pornography 28
CHILD PORNOGRAPHY: EXTENT OF THE PROBLEM 32
COMPUTER-MEDIATED HARASSMENT 37
HATE PROPAGANDA 41
COMPUTER-MEDIATED HATE PROPAGANDA 43
LEGAL FRAMEWORK 46
DEFAMATION ON THE INFORMATION HIGHWAY 50
An earlier draft of this paper was distributed to experts within the federal government, many of
Criminal Law Policy Sector:
Human Rights Law Section:
Research & Statistics Sector:
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)
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)
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.
WHAT IS OFFENSIVE COMMUNICATION?
The boundaries of offensive communication are a contested terrain. When we negotiate the
competing interests we are weaving the very pattern of our social fabric. If we are obliged
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
expressed. In the same manner, a person can legitimately look at a Playboy centrefold in the
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
Abortions, and the trial of Eli Langer whose paintings are said to contravene the child
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
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
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
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
communicative practices or their products can be subject to criminal prosecution including:
obscenity (Section 163), child pornography (Section 163.1), hate propaganda (Sections 318-
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
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
(3) hate propaganda; and
(4) defamation and libel.
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
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
establish their own BBS. BBS software is available commercially at a moderate price. More
mportantly, on many of the thousands of computer bulletin boards in North America, BBS
can use it at no charge. Other BBS software is "shareware" meaning that one can test the
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
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-
one fraction of the BBS community -- estimates suggest FidoNet accounts for only 27% of the
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
The Internet started as a U.S. military computer network designed to connect researchers
and thousands of networks. Soon it was no longer researchers under military contract but
Now, the Internet has commercial offshoots and publicly accessible sites (FreeNets and other
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
nteract 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
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
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
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
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
children would learn and play. For 25 years the Internet had developed a culture based on those
a variety of university researchers. This was a world which was uncompromisingly adult,
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
never been a single, monolithic entity but a patchwork of administrative bodies with unique
began as a military research community and became a plurality of research communities with
and organizational groups become connected, many under the broad rubric of "commercial
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
argument, reasonable technical discussion, scholarly analysis, and naughty pictures" (Vielmetti
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
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
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
ts 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-
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
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
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
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
mpact on USENET.
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
news Groups concerned with the news network and software themselves.
misc Groups addressing themes not easily classified under any of the other
soc Groups primarily addressing social issues and socializing.
talk Groups largely debate-oriented and tending to feature long
rec Groups oriented towards the arts, hobbies and recreational activities.
The newsgroups in the seven official hierarchies are created on the basis of voting by USENET
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
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
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.
THE CURRENT SITUATION: THE AVAILABILITY OF SEXUALLY EXPLICIT
The definition of pornography is notoriously difficult, even though most people in our society
law), Canada's Special Committee on Pornography and Prostitution (the Fraser Committee)
(Government of Canada, 1985: 53-54). Canadian criminal law does not define pornography but
s concerned instead with obscenity and child pornography. Section 163 of the Criminal Code
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,
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
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
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.
n which it is shown. ( 1 S.C.R., 485)
The determination that "Explicit sex that is not violent and neither degrading nor dehumanizing
s generally tolerated in our society and will not qualify as the undue exploitation of sex"
ndicates 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
ndustry 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
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
and it is probable that the majority of these are imported from the United States.
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
$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
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
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
n 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
s actually happening. For instance, it could be that Penthouse and Playboy have lost market
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
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
the market that were previously served by adult magazines have shifted to adult video.
Adult Video: Sale and Rental
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
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
n 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
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
films were rated in one year suggests that there must be a fairly strong consumer demand.
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
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
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
Ottawa Citizen states:
From its suburban offices not far from the Herongate Mall, it [XTC-COM] serves 18,000
Canada, says its general manager, Richard Latham, but "99.9 per cent of our business is
n 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.
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
via credit cards).
The pervasiveness of sexually explicit products and practices in Canada indicates that a diverse
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
ncarnation and currently represents only a small fraction of the pornography market.
"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
there is an Internet chat system called Internet Relay Chat (IRC) it is not exclusively devoted to
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
most flagrant acts of irresponsibility. But, as the history of the creation of the alt hierarchy
ndicates, 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
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
ncluding 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
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
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
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,
Another misconception conveyed by many of the newspaper accounts was that digital images
and many of the computers through which the e-mail is posted and routed impose limits on the
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
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
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
that the content is probably going to be offensive according to some criteria or other. The
a couple engaged in bizarre sexual activity, or a series of images featuring two blue fuzzy
nform 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
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
n 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,
ncluded 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,
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,
nstitutions 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
mpression 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
(1) some universities prevented access to certain alt.sex USENET groups or
(2) some universities refused to cut the newsfeed and resisted preventing access,
(3) some universities shut off certain newsgroups deemed to be offensive but,
after following some organizational process, restored them within a few
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
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
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
n the delicate balance between conflicting rights and responsibilities. In the case of the alt.sex
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 --
f 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
"Fundamental Principles" contained in its final report were the following:
5. The Criminal Code of Canada, the Civil Rights Protection Act, the B.C.
Human Rights Act, and the UBC Sexual Harassment Policy all apply to the use of
nformation technology at the University, as they do to other aspects of life here, to limit
completely free communication in order that the best possible environment be preserved.
7. The University should not ban the electronic communication between willing
applies to other forms of communication.
8. Those associated with the University should be educated about the laws and
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
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
Force stressed the importance of educating users and administrators alike about the relevant
laws and policies so that computer-mediated communication could be conducted responsibly.
A number of "Specific Recommendations" put forward by the Task Force also warrant
attention, including the following:
2. The University should provide access to all newsgroups and, more broadly,
the Internet as a whole, for all members of the University community. Other institutions,
the possible existence of material that is inappropriate for their users. Such institutions
3. The University should make it clear that the user bears the primary
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
nstitution. For example, in 1988, following a controversy over offensive jokes posted to
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'
created on July 14, 1993. The newsgroup was primarily filled with rumours, gossip and
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-
s 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
File Archives and chat lines: the computer bulletin board system (BBS)
line. One indicator can be found in a recent survey in Boardwatch magazine which garnered
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
(3) the sysop can download images from other bulletin boards and post them on his or
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
Canadian law. Being able to exclude obscene material or, if obscene material surfaces,
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.
CD-ROM could have been made in Europe, America, or Japan where standards of permissable
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
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
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
biting editorial by John C. Dvorak in the May 11, 1993 issue of PC Magazine). Ken Smiley,
n 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
files were uploaded, commented, and downloaded before the sysops had a chance to
nspect them. This may not be the "safest" way to run a BBS, in other words some
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
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
of information is like trying to police the conversations in a restaurant or a bar. This provides
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
Systems advertised to be a real hot spot, are often frequented by pretty normal people
Juan, Don Quixote, or Don Drysdale. It is interesting to note that many of the svelte,
these fantasy worlds online allow them to be as young or as old, as rich or as poor, as
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
nnermost feelings, but often fantasies they would not dream of living out in the real
Like 976 telephone sex services, BBS adult chat-lines are fantasy dialogues. The most
mportant 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
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
enforcement with respect to obscenity in traditional media and with regard to the distinctive
challenges posed by computer-based pornography.
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
According to W. H. Charles, "The first Canadian statutory provisions relating to obscene
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
forward in an 1868 British case, Regina v. Hicklin. At that time, Lord Chief Justice Cockburn
... 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
nfluences, 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
the most damaging criticisms is that "the test requires a subjective, speculative evaluation by the
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
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
Canadian law would have to wait until the early 1960s before these deficiencies in the Hicklin
Committee was Mr. D. E. Fulton, who for the next four years, as a member of the Opposition
n 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
exploitation of sex, or of sex and any one or more of the following subjects, namely, crime,
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
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
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
n Dominion News and Gifts, (1962) Ltd. v. R. (1963) and sided instead with the dissenting
The third and most recent phase in the judicial handling of obscenity was inaugurated on April
"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
Tariff which was still explicitly using a Hicklin test:
Under the Customs Tariff, customs officials were, until 1985, empowered to forbid entry
nto Canada of material of an "immoral or indecent" character, as determined by
"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
(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
n the Criminal Code. The Court concluded that although Section 163(8) infringes on Section
"guarantees the rights and freedoms set out in it subject only to such reasonable limits
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
ts dominant characteristic, but such exploitation must be 'undue'" ( 1 S.C.R., p.475).
The most important test for whether the exploitation of sex is "undue" is the community
being exposed to themselves, but with what they would not tolerate other Canadians being
exposed to" ( 1 S.C.R., p.475).
The 1992 Supreme Court decision specifies how the community tolerance test relates to the
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
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
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.
n which it is shown. The availability of sexually explicit materials in theatres or other
legislation imposes restrictions on the material available to children. ( 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
Through case law, the boundaries of obscenity and the relation between both purviews and
levels of responsibility continue to be defined:
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
more than a century. There is now a substantial body of case law which provides the
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:
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:
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
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,
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
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
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
mprisonment]. (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
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
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).
Canadian operates an Internet server or a BBS located in another country. Except for any
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
ndividual 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
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
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
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
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
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
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,
Department of Computer Science made accessible a Netnews Filtering Server
(firstname.lastname@example.org). As their February 1994 announcement states:
A user sends his profiles to the service, and will receive news articles relevant to his
nterests 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
(email@example.com, 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
n 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
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
messages so that children for whom such material would be inappropriate or adults who find
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
numbers or any other information to be kept private. If any of these are typed on the
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
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
n 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
nvolvement and supervision in their daily lives. The same general parenting skills that
apply to the "real world" also apply while online.
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
nvolved child pornography.
While society at large adopts a zero-tolerance attitude toward child pornography, there are very
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
Although many countries make the production and distribution of child pornography illegal, the
example, possession of child pornography is legal. Amendments to criminalize possession
Kingdom. The international dimension has been highlighted by The Ottawa Citizen:
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)
enforcement and the courts have only recently begun to turn toward computer-mediated
nstances. A number of computer bulletin boards, for example, were raided for child
(CU Digest, #5.94) and in a separate incident against another in Medford, Massachusetts (CU
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
nothing (in the Criminal Code) covering the written word, so I think we would have trouble
On August 1, 1993, the Criminal Code was amended to include provisions making child
(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
(ii) the dominant characteristic of which is the depiction, for a sexual
(b) any written material or visual representation that advocates or counsels sexual activity
The new amendments to the Criminal Code not only prohibit the production, distribution and
Although Canadian owners of computer bulletin boards have been charged under obscenity
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:
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
(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 covers many forms of offensive behaviour including -- but not limited to --
unwelcome communication. Harassment has been defined as an abusive attempt to assert
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
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
ncluding various forms of offensive e-mail, "net-stalking" and computer-mediated harassment
n 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
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
(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
(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
The act applies to all federal government departments and agencies, Crown corporations, and
businesses and agencies under federal jurisdiction. Provincial human rights laws provide
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
n Geller-Schwartz 1994: 46).
There have been a number of significant Canadian Supreme Court cases pertaining to
of an employer for an employee's unauthorized discriminatory acts in the workplace. In his
... 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
... 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
employment. It is unnecessary to attach any label to this type of liability; it is purely
The decision in Robichaud also indicated that if an employer is held liable, the degree of redress
Another important Canadian Supreme Court decision pertaining to sexual harassment was
case had been tried in Manitoba where the province's Human Rights Act dealt explicitly with
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 ( 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" ( 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" ( 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
... 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-
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
employees forced to endure it. By requiring an employee to contend with unwelcome
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.
The Canadian university crackdown on USENET's alt.sex in the spring and summer of 1992
University of British Columbia Task Force, however, indicated that the problem could be
... said a female student could walk into a computer laboratory and find a picture of a
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
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
mage is indelibly inked on glossy magazine paper or projected on a computer monitor:
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
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
Unix systems using the elm mail program have a filter option. There are also mail filtering
Just as the most perilous form of sexual harassment is sexual assault, perhaps the most
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
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.
experience online. The boy's father discovered the electronic account and went to police,
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,
Just as we "streetproof" our children, we should also teach them how to be safe on the
nformation highway. Howard Rheingold's reflections are worth repeating:
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
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
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
the most visible manifestation of racism and anti-Semitism. There are a number of such groups
n Canada, although membership is not large (Barrett documented 586 persons in the early
(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
(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,
(iv) Among the most recent groups to emerge is the Heritage Front which went public
n 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
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
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
The Cohen Committee recommendations formed the basis of some of the key hate propaganda
A second wave of anti-Semitic and racist activity erupted in the mid-1970s. Some of these
fundamentalism. Not all forms of prejudice, however, wrapped themselves in the garb of
theology. For example, certain manifestations of historical revisionism (particularly "Holocaust
adopting scholarly trappings. Canadian youth espousing white supremacist and neo-nazi
deologies began to appear in the 1980s among various factions of the skinhead subculture.
This second wave of hate propaganda and racist group activity gave rise to a flurry of
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
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:
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
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
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,
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
Johnston and the Church of Jesus Christ Christian-Aryan Nations for setting up a hate line
Commission sought court orders for two white supremacist hotlines set up by the Heritage Front
n 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
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
ndividuals 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
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
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
the Gatineau chapter of the Northern Hammer Skinheads. As with similar postings, this was
Ken McVay, a British Columbia resident, has gained respect among regular users of the Net for
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
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
nept 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
"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
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
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.
evidence and arguments which counter inflammatory material. Messages from people such as
Keren, McVay and McCarthy may sway some individuals from racist beliefs. More
mportantly, 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.
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
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
boards in the United States. In the United States, the National Telecommunications and
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
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
n the past few months, a pair of computer bulletin boards have emerged in Toronto. The
board, sponsored by the Euro-Canadian Alliance"; it was joined a few months later by a
companion bulletin board named the Digital Freedom BBS.
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
There are a number of federal statutes that have been used to successfully prosecute hate
the Canadian Human Rights Act.
Section 318 of the Criminal Code states: "Every one who advocates or promotes genocide is
years." Whereas section 318 is specifically concerned with the promotion of genocide,
(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
(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
by invitation, express or implied." The necessity to draw a distinction between public and
(2) Every one who, by communicating statements, other than in private conversation,
(a) an indictment offence and is liable to
mprisonment for a term not exceeding two
(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
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
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
For the purpose of this section, "hate propaganda" is defined as "any writing, sign or visible
tems such as films, books, magazines, pamphlets and posters used to disseminate hate
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
n 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
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
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
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,
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....
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  to Denis Mahon, a
leader of the KKK, as well as David Irving, a British Holocaust denier (November 2,
Office) 1993: 12)
This overview provides examples of a number of legal instruments that have been used
ndications 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
Although anonymous remailers can provide legitimate services (for example, for victims of
applications affording anonymity. There are significant technical and jurisdictional difficulties
n 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
llegal 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
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
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
We can, however, begin by citing the Handbook Exploring the Legal Context for Information
The dissemination of misinformation is proscribed to a certain extent by criminal law
Finally, there are a variety of common law actions which are concerned with the
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,
t 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
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
n response to inquiries by a person concerned about the truth or who reasonably believes
t to be true, relevant and not excessive in the circumstances; the matter is published in
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)
Libel and slander are based on the common law recognition of an individual's right to
s 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
ndividual 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
misinformation is imparted in a transitory fashion, e.g. by gesture, look,
(2) Proof of damage:
Damage is presumed in libel when the plaintiff establishes that
the defendant has disseminated defamatory material about him. However,
This difference has been obliterated by statute in some jurisdictions so that
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
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.
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
"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
from the university.
"I accept that the defamation caused serious harm to Dr Rindos's personal and
"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
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
case indicates that it is possible for individuals to be held responsible for defamatory statements
The second libel case to be considered is Cubby, Inc. v. CompuServe Inc. (776 F. Supp. 135,
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
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,
Rumorville USA was published by Don Fitzpatrick Associates of San Francisco (DFA). DFA
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
n return for access to the publications. CompuServe and companies like it are at the
forefront of the information industry revolution. High technology has markedly
ncreased 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
nstantaneous 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
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
feasible for CompuServe to examine every publication it carries for potentially
Amendment guarantees have long been recognized as protecting distributors of
mpermissible 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
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
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
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".
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
unless he knows that defamatory material is present or the newspaper or book habitually
carries defamatory material. Whether a printed publication constitutes a newspaper
Mike Godwin has pointed to the emphasis Judge Leisure accords the contractual relationship
between CompuServe and Cameron Communications, Inc., noting that "This particular legal
(such as libel)" (Godwin 1993). However, Godwin suggests that this is offset by the Judge's
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
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
like a library, bookstore or vendor and not be held responsible. Matters, however, are not quite
Hallam-Baker) in which a Carleton employee posted messages to a newsgroup that were
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.
Digitization and microelectronics have transformed the way we capture, store, transmit and
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
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
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
explicit; contain representations of violence; or contain political, religious, or cultural content
that others find unacceptable or intolerable. Sometimes law enforcement intervenes and the
s actually illegal.
Even in a democratic society, freedom of expression is never absolute. Our political and
Canadian Charter of Rights and Freedoms but it is qualified or subject to "reasonable limits"
the Canadian Human Rights Act. There are also a variety of remedies in civil law for
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
objective must be "of sufficient importance to warrant overriding a constitutionally protected
vulnerable groups in society and consequently to society as a whole). The proportionality
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
llustration, 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).
n an electronic environment or are there features inherent in network-distributed media that
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
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
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
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
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
multilateral arrangements between provinces and countries a feasible option for controlling
cross-border flows of offensive content? What impediments hinder law enforcement agencies
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
ssue would be permitted. If no changes were made, however, officials would decide to
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
ndividual who publishes obscene, defamatory or hateful messages rather than prevent
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.
n relation to the Homolka publication ban. This raises the question of whether the very
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
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
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
Telecommunications Act, the Broadcasting Act, and the Canadian Human Rights Act.
ncluding the prohibition of certain content and the enforcement of age restrictions. Municipal
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
content of books or magazines. Software and computer databases have been treated more like
underpinnings of private purchases. VANs (Value Added Networks), for example, are
currently not regulated. Recently, isolated cases of alarming material have prompted
management, not the control of individual behaviour or expression. Should additional controls
or measures, community initiative and individual responsibility?
Different organizations such as business enterprises, libraries, universities, school boards, and
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
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
Turning from the supply to the demand side, it is clear that individuals have access to
nformation 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
Adaptive filters which permit multiple user profiles already exist. If they can seek and find, it
s 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
nformation controls. What can be done to encourage research and development of technical
content available via on-line services?
nfo-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
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
nformation highway to information providers and the public?
These and other questions related to controlling offensive content on the information highway
ntroduce 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,
(3) The federal government should explore bilateral and multilateral arrangements at the
nternational 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
(5) The federal government should explore whether bulletin boards and other service
(6) To facilitate arriving at community standards, complaint resolution procedures should be
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,
uphold age restrictions; adaptive filters on home personal computers will screen out
nappropriate violent or sexual content.)
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
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:
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
Copp, David and Susan Wendell (Eds.). Pornography and Censorship. Buffalo (N.Y.):
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,
Geller-Schwarz, Linda (Ed.). From Awareness to Action: Strategies to Stop Sexual Harassment
n 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
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,
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,
Mackay, R.S. "The Hicklin Rule and Judicial Censorship". Canadian Bar Review, Vol.36,
McKay, H.B. & D.J. Dolff. The Impact of Pornography: A Decade of Literature. Report
Mehta, Michael D. and Dwaine E. Plaza. "A Content Analysis of Pornographic Images on the
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.
Volunteer Committee in Review of the Impact of Explicit Pornography on the Community. June
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
Rheingold, Howard. "Cyberspace". Whole Earth Review Winter 1994: 95.
Robertson, James R. Pornography -- Current Issue Review 84-3E. Ottawa: Library of
Rosen, Philip. Hate Propaganda -- Current Issue Review 85-6E. Ottawa: Library of
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
NEMLA, April 8-9, 1994.
Shade, Leslie Regan. "Desperately Seeking Karla: the Case of alt.fan.karla.homolka". Paper
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
Brodie, Dansky and Rubin v. Regina  S.C.R. (Supreme Court Reports), 681-711.
Dominion News and Gifts Ltd v. Regina . 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),
Regina v. 294555 Ontario Limited et al., 39 C.C.C. (2d), 352-355.
Regina v. Butler . 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. , 45 C.R. 295.
Regina v. Rioux  S.C.R. 599,  3 C.C.C. 149.
Towne Cinema Theatres v. The Queen  1 S.C.R.(Supreme Court Reports), 494.
Ernst Zundel v. Regina. .
Regina v. Andrews et al.. Ontario Reports  65 (O.R. (2d)), 161-196.
Regina v. Keegstra. Western Weekly Reports  5 (W.W.R.), 211-240.
Regina v. Keegstra. . 3 S.C.R. (Supreme Court Reports), 697-869.
Robichaud v Canada (Treasury Board) , 8 C.H.H.R. D/4326 (S.C.C.).
Janzen and Govreau v. Platy Enterprises  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,
Boisvert, Yves. "La Cour d'appel préserve l'«affichage érotique»". La Presse. August 25 1994,
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,
"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
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,
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
Kavanaugh, Cindy. "Computer Porn Hits University Campus". Windsor Star. July 9, 1992,
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,
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,
Saturday May 9, 1992.
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,
Simone, Rose. "UW official can't evade porn issue". Kitchener-Waterloo Record. July 10,
Smith, Michael. "Grisly details available on computer networks". Toronto Star December 1,
"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,
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:
Berlet, Chip. "Christian Identity, Survivalism & the Posse Comitatus". Posted to alt.activism
September 30, 1992. Available on firstname.lastname@example.org 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.email@example.com>. 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 , 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
. Feb. 16 1994. Posted periodically to: news.admin.misc,
Lang, Margot. "Computer Libel Wins Academic $40,000". The West Australian. April 2,
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
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
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
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
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
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.
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
ntended 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
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
the style which has typified the adult film industry for more than two decades (since
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
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
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
Beats weren't your scene, maybe you dug the psychedelic Sixties of Ken Kesey and the Merry
transvestite smack of Andy Warhol's Factory, slurring along with the Velvet Underground? Or
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
The description is intended to incite the view that this is an act of violence (evident from the editorial
ntrusion: "as if she is screaming") perpetrated by a man against a woman. Of course, we really do not know the
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
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:
(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
(3) Be aware of your responsibility with respect to the uses and misuses of your facilities. However,
(4) Trust, and educate, people to be responsible.
(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
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
bulletin boards during the "hacker-crackdown" of 1990 (search warrants were made available, trial proceedings
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
be obscene. Indeed, for instance, a book may be inoffensive in its content, but if it is calculated to
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
mmoral 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
only conjecture in a judicial manner as to the class of persons who might fall within the description. (Laidlaw footnote
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
time is perhaps tolerable, but to fetter it by the necessities of the lowest and the least capable
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
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
appreciation of the nature and function of literature and although obscenity is still a question of fact the considerations
nvolved require the application of special skills. Hence, under the Ulysses test, opinion evidenced is not irrelevant or
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
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. ( 1 S.C.R., p.476).
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,  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,
 1 S.C.R., at pp.508-509): " The cases all emphasize that it is a standard of tolerance, not taste, that is
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
There are also ancillary problems. Suppose the culprit cannot be tracked down or that if located, cannot be
computer should be minimal, the public pressure that "something must be done" may make the host computer an
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
messages which employed derogatory terms, a message from one of the more sophisticated Holocaust deniers would
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
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
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:
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
nformation. 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..."
Harassment is any unwelcome physical, visual or verbal conduct. It may include verbal or practical jokes,
nsults, 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
This is under the condition that an employer is subject to the Canadian Human Rights Act (ie., the employer
s a federal government department or is under federal jurisdiction). Arjun P. Aggarwal has contended "that the
mpact of the Supreme Court decision is not confined to employers under federal jurisdiction; employers in all
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
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
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
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
nquiry 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
(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
Under the proviso that this is done "in the provision of goods, services, facilities or accommodation ... and
n 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
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
f they lose the battle all mankind will suffer, for without the white man's leadership the world will descend
nto 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
(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 firstname.lastname@example.org (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
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,
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
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
n 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
(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
ndividual 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
(c) if the statements were relevant to any subject of public interest, the discussion of
(d) if, in good faith, he intended to point out, for the purpose of removal, matters
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
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
s 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,
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
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
(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 ...
operators and universities which operate USENET hosts have been brought to court on both defamation and copyright
nfringement 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
law field reserved for the federal government.
Not everything on cable television is programming -- if it is just alpha-numeric characters, still images and
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).