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Quebec Firm’s Language Law Challenge Tests E-jurisdiction

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Although a small minority may still view the Internet as a "wild west" where traditional law does not apply, most Canadians accept that laws such as the Criminal Code, consumer protection statutes and privacy protections apply equally offline and on-line.

To that list we must now include another piece of legislation: Quebec's French language law.

The application of this law to the Internet has long been the source of controversy, as Quebec-based Web site owners have regularly faced demands that they either remove their English-only site from the Web or create a French-language version.

For example, MicroBytes-Logiciels Inc., a Montreal-based software developer, altered its site after receiving such a demand in 1997. In 1999, photographer Mike Calomiris faced a similar demand and vowed to fight. His first court appearance has just been scheduled for March 26.

Last year, Muriel and Stanley Reid, a Quebec couple selling maple syrup from an English-only Web site, were fined by the Office de la Langue Française for failing to translate their site. A decision on the case is expected later this month.

While those cases all generated headlines, they have yet to make it through Canada's courts.

One case has, however. Last November, a Quebec court issued the first ruling on French language laws in cyberspace — an important decision that has been surprisingly overlooked by Canadian media.

When Simon Sunatori, owner and CEO of Hull-based Hyperinfo Canada Inc., was asked in 1999 by the OLF to translate into French, his first reaction was to try to comply by translating portions of the site. The authorities were unimpressed, however, reiterating that the site had to be fully translated. When Mr. Sunatori refused to comply, they took the matter to court.

Mr. Sunatori represented himself, and raised several interesting arguments. He first argued that his customers resided primarily in the United States, and that his site should therefore qualify for an exemption for products that are not widely available in Quebec. The court rejected that argument, noting that the exemption applied to labelling requirements and not to commercial publicity relating to a product, such as a Web site.

He then argued that he should be entitled to rely on technical and legal measures designed to minimize the availability of the site to Quebec residents. By placing a disclaimer that "the products and services on this Web site are not available to the residents of Quebec due to 'la Charte de la Langue Française,' " as well as blocking visitors coming from dot-qc addresses, Mr. Sunatori argued that few Quebec residents would view the site. The court dismissed these measures, ruling that the blocking technologies were imperfect and that a site owner could not use a disclaimer to avoid complying with language provisions.

Mr. Sunatori's most important submission focused on the very application of Quebec's language laws to the Internet. Citing the Internet's borderless qualities, he argued that it was unfair for the Quebec government to saddle businesses with constraints that are not faced by competitors located outside the province.

In rejecting that argument and finding Hyperinfo liable under the language legislation, the court acknowledged that information on the Web typically moves freely between jurisdictions, but it was not persuaded that this alone alters the sovereign right of governments to regulate on-line activity, particularly where the activity occurs within their physical borders.

Although many Canadians may instinctively criticize both the language authorities' insistence that their laws apply to the Web as well as the court's decision upholding that claim, I believe the judge dealt with this issue fairly in view of the current state of the law.

As he correctly noted, the Supreme Court of Canada, in common with most courts around the world, has adopted a jurisdictional principle that allows for the application of local law where the activity or the effects of the activity occur within local territory. In recent years that approach has been used to apply Canadian securities laws to Web sites maintained by Canadians on offshore servers, and to protect Canadian consumers from fraudulent Web sites located outside the country.

Most recently, it was used by the Canadian Human Rights Tribunal to apply Canada's antihate human rights legislation to a U.S.-based Web site maintained by a Canadian resident.

The application of Quebec's language laws to provincial Web sites is hardly any different. Quebec must have the right to apply its laws to firms located within the province, since to rule otherwise is to call into question the right of all governments to apply their laws to the on-line environment.

While the Quebec language laws may infuriate those who disagree with government-mandated speech, their complaint should be with the law itself, not with its application on-line. After all, an Internet without the broad range of laws we depend upon is a far more troubling proposition.

One Comment

  1. Please note** The Language Laws are in fact – illegal and discriminatory – based on a foundation of ‘ethnic cleansing of the English Language & its culture out of Quebeck’! Therefore the Quebec ‘Government itself’ is guilty of gross violation and abuse of its “Limited Powers” – for Illegally enacting a “Public Law” (that no Provincial Government may enact. It is A Federal Government Action that may only be introduced with the “Full significant majority of the People Of Canada” in other words by our vote – not our elected officials vote. And ANY law – that diminishes, negates etc.. the rights & freedoms of ANY Canadian or segment of the population ‘Shall be deemed Null & Void’ – as stated in Our Constitution. Quebec politicians have the right to enact Civil Laws – (dealing with business and taxes) and education (without discrimination – again grossly violated and abused) notwithstanding The Spirit of the Constitution’s Laws are NOT violated. Therefore – the Judge – had no legal right to even hear this case – let alone make the illegal decision he did. The OLF and language police are breaking the law every day by their very existence. And we all know it.