Tough Choice for CRTC in Hate Blocking Case
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Monday August 28, 2006
More than a decade ago, John Gilmore, one of the founders of the Electronic Frontier Foundation, coined the phrase "the Internet interprets censorship as damage and routes around it." Last week, the Canadian Radio-television and Telecommunications Commission declined to wade into this issue in a case that placed the spotlight on how Canada's Internet service providers treat illegal content that originates outside the country.
The person behind the case was Richard Warman, an Ottawa lawyer who is one of Canada's leading activists against Internet-based hate. Warman has filed numerous complaints with the Canadian Human Rights Commission against Canadian-based hate sites, arguing that those sites violate the law. The Commission has sided with Warman on several occasions, most recently in a case against a London, Ontario man who was sentenced by a federal court judge to nine months in prison.
Reacting to the jail sentence, several U.S.-based sites directly targeted Warman, mounting death threats against him. Warman asked U.S. law enforcement authorities to take action against the sites, but when they failed to do so (those cases are under investigation), he filed his groundbreaking application with the CRTC.
Although several news organizations reported that Warman was asking the CRTC to order Canadian ISPs to block access to the offending sites, the application did not seek government-mandated censorship of foreign content. Instead, the CRTC was asked to authorize Canada's telecommunications carriers to voluntarily block the sites (the Telecommunications Act would ordinarily render such blocking unlawful). Therefore, even if the CRTC had issued the order, there was no guarantee that the carriers would have blocked the sites.
On Friday, the CRTC denied Warman's request, noting that the ISPs and the affected sites were not provided with advance notice nor the opportunity to present their views. While the CRTC was right to emphasize that all parties should be heard, the issue should remain on the public agenda as important procedural safeguards should not be used as an excuse to leave it unresolved.
Had it addressed the substantive questions, the case would have presented an enormously difficult choice. There is little doubt that the content in question is illegal and that Warman faces a serious threat. By directly targeting Warman, the foreign sites have arguably brought themselves within Canada's jurisdiction. Further, by merely asking the CRTC to issue a voluntary order, Warman avoided state-sanctioned censorship and placed the issue in the hands of ISPs.
Despite the good intentions behind the application, however, there remains some cause for concern. First, it is unlikely that the order would have proven to be effective given that the CRTC's jurisdiction is limited to the major telecommunications carriers, with many ISPs remaining outside of its regulatory mandate.
Second, blocking technologies are notoriously overbroad. For example, when Telus last year blocked Voices for Change, a website supportive of one of its labour unions, a university study found that hundreds of additional websites were inadvertently blocked in the process. Although blocking technology may have improved by targeting domain names rather than IP addresses, there is a real risk of blocking legitimate content.
Third, blocking foreign content establishes a dangerous precedent that can easily be misused. While child pornography can and should be blocked since merely viewing such content is illegal, the prospect of extending blocking to hate speech, defamation, or even copyright infringement complicates the analysis considerably.
Regardless of one's views on the CRTC's denial of the application, there is likely wide agreement that Canada must begin to grapple with the Internet challenge of balancing free speech rights with rules that outlaw certain forms of speech that have been judged harmful to our multicultural society.
A policy framework that addresses these competing goals would likely include complaints mechanisms, a presumption that the content is lawful and must be disproved by a high standard of evidence, an opportunity to challenge blocking requests, appropriate judicial oversight, and full transparency about blocking activities. The job is not the CRTC's alone - law enforcement and the judiciary must surely be involved in the process of determining what may constitute unlawful content and the remedies that follow - but the regulator can assist in the process.
Critics are quick to draw parallels to Internet censorship in countries such as China. However, those countries involve state-based content blocking, with no transparency or legal recourse. In fact, several democracies - most notably Australia - have established limited blocking rules, while British Telecom, the UK's largest ISP, voluntarily blocks child pornography as part of its CleanFeed program.
Even with various legal safeguards, many Canadians would undoubtedly find the blocking of any content distasteful. Yet to do nothing is to leave in place an equally unpalatable outcome that silences those would speak out against unlawful hate speech for fear of personal harm. While the Internet raises some difficult policy challenges, few are more difficult than the one that came before the CRTC last week.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.
Monday August 28, 2006