action.
2
In contrast to those regimes where the
state mandates Internet service provider (ISP)
action through legal or technical control, most
content-regulatory urges in both the United
States and Canada are directed through private
action.
With only 5.1 percent of the world’s population, the United States and Canada are home to
21.1 percent of the world’s Internet users.
Together their Internet penetration rate is 69.4
percent. 3 Canada and the United States, however, have not kept pace with many other countries
in expanding broadband access, slipping in the
global ranking of Internet broadband penetration
rates to 11th and 16th, respectively, in 2006. 4
These high rates of Internet usage bring with
them the ability of citizens to express dissenting
points of view, as well as to engage in a large
number of other activities (such as accessing
pornography) that test a society’s dedication to
free expression and privacy. Like the states that
actively filter the Internet through technical
means, Canada and the United States are not
immune from the ongoing challenges that these
tests pose.
Regulating and filtering obscene and
explicit content
It is a truism (i.e., repeated without necessarily
being true) that pornographers are the first to
embrace every new technology. The first sustained battle over content filtering in the United
States broke out over sexually explicit material,
particularly because of the perception that it is
easily accessible and the fear that it can do harm
to minors who access it online.
Canada has tended to act conservatively in
response to online obscenity, while legislators in
the United States have pursued broader definitions of offenses and mandates on Internet filtering. In its response to online sexually explicit
material, Canada has made only de minimis
amendments to pre-existing law. 5 Legislators
have simply revised existing obscenity provisions
to encompass online offenses. For example, the
passage of the Criminal Law Amendment Act of
2001 6 established online acts of distributing and
accessing child pornography and luring a child
as crimes. 7 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. 8 If a judge determines that the material in
question is illegal, ISPs may be required to take it
down and to give information to the court to help
in the identification and location of the person
who posted it. 9
Many Canadian ISPs, however, have begun
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. 10 This unilateral action by Telus broke the
“cardinal rule” of Canadian ISPs—that they pass
on any and all information without regard for content in exchange for immunity from liability over
content. 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.” 11 Telus, however, argued
that content filtering is permitted in the contract it
holds with its subscribers, although, to the detriment of their argument, the blocking affected the
customers of other ISPs that connect via Telus.
The matter was resolved when, though the site
was hosted in the United States, 12 Telus was able
to obtain court orders from Alberta and British
Columbia requiring the Web site operator, who
Regional Overviews
227
2
In contrast to those regimes where the
state mandates Internet service provider (ISP)
action through legal or technical control, most
content-regulatory urges in both the United
States and Canada are directed through private
action.
With only 5.1 percent of the world’s population, the United States and Canada are home to
21.1 percent of the world’s Internet users.
Together their Internet penetration rate is 69.4
percent. 3 Canada and the United States, however, have not kept pace with many other countries
in expanding broadband access, slipping in the
global ranking of Internet broadband penetration
rates to 11th and 16th, respectively, in 2006. 4
These high rates of Internet usage bring with
them the ability of citizens to express dissenting
points of view, as well as to engage in a large
number of other activities (such as accessing
pornography) that test a society’s dedication to
free expression and privacy. Like the states that
actively filter the Internet through technical
means, Canada and the United States are not
immune from the ongoing challenges that these
tests pose.
Regulating and filtering obscene and
explicit content
It is a truism (i.e., repeated without necessarily
being true) that pornographers are the first to
embrace every new technology. The first sustained battle over content filtering in the United
States broke out over sexually explicit material,
particularly because of the perception that it is
easily accessible and the fear that it can do harm
to minors who access it online.
Canada has tended to act conservatively in
response to online obscenity, while legislators in
the United States have pursued broader definitions of offenses and mandates on Internet filtering. In its response to online sexually explicit
material, Canada has made only de minimis
amendments to pre-existing law. 5 Legislators
have simply revised existing obscenity provisions
to encompass online offenses. For example, the
passage of the Criminal Law Amendment Act of
2001 6 established online acts of distributing and
accessing child pornography and luring a child
as crimes. 7 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. 8 If a judge determines that the material in
question is illegal, ISPs may be required to take it
down and to give information to the court to help
in the identification and location of the person
who posted it. 9
Many Canadian ISPs, however, have begun
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. 10 This unilateral action by Telus broke the
“cardinal rule” of Canadian ISPs—that they pass
on any and all information without regard for content in exchange for immunity from liability over
content. 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.” 11 Telus, however, argued
that content filtering is permitted in the contract it
holds with its subscribers, although, to the detriment of their argument, the blocking affected the
customers of other ISPs that connect via Telus.
The matter was resolved when, though the site
was hosted in the United States, 12 Telus was able
to obtain court orders from Alberta and British
Columbia requiring the Web site operator, who
Regional Overviews
227