While legislators in the United States have pursued broader definitions of offenses
and mandates on Internet filtering, Canada has tended to act conservatively in response to online obscenity. In its response to online sexually explicit material, Canada
has made only de minimis amendments to preexisting law. 30 Legislators have simply
revised existing obscenity provisions to encompass online offenses. For example, the
passage of the Criminal Law Amendment Act of 2001 established online acts of distributing and accessing child pornography and luring a child as crimes. 31 The Criminal
Code mandates a system for judicial review of material (including online material)
alleged to be child pornography. It does not, however, require ISPs to judge the legality
of content posted on their servers or to take corrective action prior to a judicial determination. 32 If a judge determines that the material in question is illegal, ISPs may
be required to take it down and help the court identify and locate the person who
posted it. 33
There have been instances in Canada of ISPs attempting to filter content hosted outside of Canada despite regulatory uncertainty in the area. For three days in July 2005,
the Canadian ISP Telus blocked access to a Web site run by members of the Telecommunication Workers Union during a labor dispute containing what Telus argued was
proprietary information and photographs that threatened the security and privacy of
its employees. 34 This unilateral action by Telus deviated from the general practice
of Canadian ISPs to pass on any and all information without regard for content in
exchange for immunity from liability over content. 35 This action also conflicted with
Section 36 of the Canadian Telecommunications Act, which states that, without the
approval of the Canadian Radio-Television and Telecommunications Commission
(CRTC), a ‘‘Canadian carrier shall not control the content or influence the meaning or
purpose of telecommunications carried by it for the public.’’ 36 Telus’s blocking also
affected the customers of other ISPs that connect via Telus. 37 The matter was resolved
when Telus was able to obtain court orders from Alberta and British Columbia requiring the Web site operator, who lives and works in Canada, to remove the offending
materials (the site was hosted in the United States). 38
In August 2006, Canadian human rights lawyer Richard Warman filed an application
with the CRTC to authorize Canadian ISPs to block access to two hate speech sites
hosted outside of Canada. 39 The CRTC denied the application, but the decision recognized that although the CRTC cannot require Canadian ISPs to block content, it could
authorize them to do so. However, the CRTC noted that the ‘‘scope of this power has
yet to be explored.’’ 40 In a 2009 decision by an Ontario court, Richard Warman was
successful at getting an order for a Web site to disclose the identities of eight of its
anonymous contributors. 41 The decision has been appealed by the defendants. 42 The
rules that the court relied on were general duty of disclosure rules in Ontario civil procedure that were not written with the intent of applying to this situation. The state of
court involvement in online speech therefore remains uncertain.
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United States and Canada Overview
and mandates on Internet filtering, Canada has tended to act conservatively in response to online obscenity. In its response to online sexually explicit material, Canada
has made only de minimis amendments to preexisting law. 30 Legislators have simply
revised existing obscenity provisions to encompass online offenses. For example, the
passage of the Criminal Law Amendment Act of 2001 established online acts of distributing and accessing child pornography and luring a child as crimes. 31 The Criminal
Code mandates a system for judicial review of material (including online material)
alleged to be child pornography. It does not, however, require ISPs to judge the legality
of content posted on their servers or to take corrective action prior to a judicial determination. 32 If a judge determines that the material in question is illegal, ISPs may
be required to take it down and help the court identify and locate the person who
posted it. 33
There have been instances in Canada of ISPs attempting to filter content hosted outside of Canada despite regulatory uncertainty in the area. For three days in July 2005,
the Canadian ISP Telus blocked access to a Web site run by members of the Telecommunication Workers Union during a labor dispute containing what Telus argued was
proprietary information and photographs that threatened the security and privacy of
its employees. 34 This unilateral action by Telus deviated from the general practice
of Canadian ISPs to pass on any and all information without regard for content in
exchange for immunity from liability over content. 35 This action also conflicted with
Section 36 of the Canadian Telecommunications Act, which states that, without the
approval of the Canadian Radio-Television and Telecommunications Commission
(CRTC), a ‘‘Canadian carrier shall not control the content or influence the meaning or
purpose of telecommunications carried by it for the public.’’ 36 Telus’s blocking also
affected the customers of other ISPs that connect via Telus. 37 The matter was resolved
when Telus was able to obtain court orders from Alberta and British Columbia requiring the Web site operator, who lives and works in Canada, to remove the offending
materials (the site was hosted in the United States). 38
In August 2006, Canadian human rights lawyer Richard Warman filed an application
with the CRTC to authorize Canadian ISPs to block access to two hate speech sites
hosted outside of Canada. 39 The CRTC denied the application, but the decision recognized that although the CRTC cannot require Canadian ISPs to block content, it could
authorize them to do so. However, the CRTC noted that the ‘‘scope of this power has
yet to be explored.’’ 40 In a 2009 decision by an Ontario court, Richard Warman was
successful at getting an order for a Web site to disclose the identities of eight of its
anonymous contributors. 41 The decision has been appealed by the defendants. 42 The
rules that the court relied on were general duty of disclosure rules in Ontario civil procedure that were not written with the intent of applying to this situation. The state of
court involvement in online speech therefore remains uncertain.
374
United States and Canada Overview