University of Waterloo Symposium on Free Speech and Privacy in the Information Age November 26, 1994 Address by: The Hon. John Sopinka Supreme Court of Canada "FREEDOM OF SPEECH AND PRIVACY IN THE INFORMATION AGE" INTRODUCTION This address will explore the ramifications of the information age on the freedom of speech and privacy rights. New technologies such as computer networking have given Canadians greater opportunities to directly participate in the information age. Today individual Canadians have access to very powerful means of expression which enable people to reach wide audiences nationally and internationally at relatively little expense. These technological advances may potentially create numerous positive benefits for our society. However, as with any cutting edge developments, society must learn to adapt to a whole new range of problems which may also arise. This is equally true of our legal system and the way in which we define basic rights in our society such as the freedom of expression and the right to privacy. Technology opens new doors of artistic, social, intellectual and political expression. However, the ability to reach a wide audience with little or no regulation also results in a proliferation of speech which many may find hurtful or offensive. Therefore, it becomes all the more essential that we have an understanding of the meaning of freedom of expression in Canadian society and its limits. No rights or freedoms in a society are absolute. Limits on one person's freedom are imposed when the exercise of that freedom harms or threatens to harm another person or society. As pungently observed by Professor Isaiah Berlin: "In a lake stocked with minnows and minnow-eating pike, freedom for the pike means death to the minnows." In the early part of this century, the law would never have had to concern itself with the possibility of defamatory statements being spread across the globe electronically in seconds. Nor did we need to concern ourselves about the possibility of the police surreptitiously monitoring every conversation we had. However, in the latter part of this century, these social and technological realities influence the way we define fundamental values of society. This discussion will focus on the nature of the freedom of expression in Canada as guaranteed under section 2 of the *Canadian Charter of Rights and Freedoms*. I will also briefly examine the notion of privacy and the need to take account of this vital interest in delineating the scope of free speech. It is hoped that an understanding of the meaning of free speech will assist in the debate over the ambit of free speech in the context of the information age and computer network communications. I also hope that it will become apparent how evolving technology has, in part, shaped the limits of free speech and the balance that must be struck with other legitimate goals. FREEDOM OF EXPRESSION IN CANADA There is no doubt that electronic media have expanded the potential for individuals to express their views and engage in a free and open exchange of ideas. This is a fundamental aspect of any free society and one we guard closely. However, the greater the quantity of expression, the greater the likelihood that people will be exposed to messages which disregard the rights of persons living in a free and democratic society. As a result, there may be a growing temptation on the part of individuals as well as governments to control and regulate these new electronic media of expression in order to prevent the deleterious effects of free speech. Inevitably, Canadians will be required to embark upon an introspective analysis of our limits of tolerance for forms of expression found to be offensive. Understanding how freedom of expression is protected under the *Charter* will assist in answering difficult questions such as how much tolerance should we as a society have for the messages which appear on e-mail, readily available to anyone? Should we resort to censorship in order to avoid potentially harmful speech? To what extent, if any, is it acceptable for the government to prevent the dissemination of information across the electronic frontier? (i) *Charter* Protection of Free Speech - An Overview To begin to answer these difficult questions, a good starting point is the *Canadian Charter of Rights and Freedoms* itself. Section 2(b) of the *Charter* provides that everyone is entitled to the fundamental "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication". Under the Constitution, any law that abridges or violates this fundamental freedom will be struck down by the courts unless it can be shown that the infringement is a "reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society". Therefore, even if a law is found to violate the freedom of expression, the government is afforded an opportunity to justify the law by reference to reasonable limits on the freedom of speech which Canadians accept and expect. As stated previously, freedom of speech is not an absolute right. There are very often countervailing values and other important rights which also deserve protection. This is the reason s. 1 of the *Charter* provides an opportunity to justify any law as a reasonable limit on a fundamental freedom. However, given the tremendous value that Canadians place on free speech, the burden on the government will be onerous to show why any action which violates free speech should not be struck down by the courts. (ii) Judicial Interpretation of s. 2(b) of the *Charter* In attempting to define what freedom of expression is and what its limits are, a good place to start is to identify the goals and purposes underlying the right. The Supreme Court of Canada has had the opportunity to comment on the importance of the freedom of expression in a number of cases and in a variety of contexts. In an often quoted passage from *Edmonton Journal v. Alberta (Attorney-General)* [1], a case concerning the constitutionality of a provision banning the publication of information arising out of court proceedings in matrimonial disputes, Mr. Justice Cory stated that: It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized ... It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances. The Supreme Court of Canada has identified the purpose of this essential guarantee which is "to permit free expression to the end of promoting truth, political or social participation, and self-fulfilment" [2]. These values lie at the core of the freedom but all expressive activity is included. The court is reluctant to cut down the scope of freedom of speech and therefore anything capable of meaning is included short of expression communicated in a violent form or that threatens violence. Accordingly, initial protection is afforded to hurtful speech and communication for the purpose of sex. This means that restrictions on the freedom must be justified by the government action under s. 1 of the *Charter*. It is at the justification stage that the type of speech is relevant. The closer speech is to the core area of the freedom, the more difficult it is to justify. For example, it would be indeed difficult for the government to justify the suppression of speech of a political, intellectual or artistic nature. Whereas other forms of expression, such as racist graffiti on a subway wall, or communication for the purpose of sex, while still falling within the protection of the *Charter*, lie further from the central core values of freedom of expression. In that case, it may be somewhat easier for governments to justify an abrogation of one's freedom of expression in order to promote other compelling social objectives. However, any government measure which either has the purpose of restricting one's freedom of expression, or even if it is not the aim of the measure, has the effect of restricting one's freedom of expression, will violate the *Charter* and must be justified by the government. (iii) Explanation of the reasonable limits test under s. 1 of the *Charter* The Supreme Court of Canada has established a somewhat flexible framework of analysis to determine what limits on *Charter* rights may be demonstrably justified in a free and democratic society. In the seminal case of *R. v. Oakes* [3], Chief Justice Dickson indicated that the impugned legislation must meet two sets of conditions in order to be considered a reasonable limit on a *Charter* right and avoid being struck down. First, as a threshold test, the objective of the legislation under attack must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom". In other words, the government must be seeking to achieve a pressing and substantial objective. Objectives of a trivial nature will simply not be important enough to override the fundamental rights and freedoms enshrined in the *Charter*. The second requirement of the analysis is that "the means chosen to attain those objectives must be proportional or appropriate to the ends". [4] This proportionality requirement has three aspects. First, there must exist a rational connection between the impugned measures and the objective sought to be achieved. No matter how important the objective of government, the particular legislation being scrutinized cannot justifiably override a *Charter* right if it is not a logical means of attaining the desired goals. Secondly, even if the government measure in question is a rational response to the problem being addressed, the government must also demonstrate that the provision impairs the constitutionally protected right or freedom as little as possible. Although it is not necessary for governments to seek out and utilize the absolutely least intrusive means of attaining its objective, generally, where the goal can be achieved with less drastic measures it is not acceptable to enact laws which impair fundamental *Charter* rights to a greater degree. For example, if the goal of government is to prevent harassing phone calls, it is not acceptable to completely ban the use of the telephone. This would hardly be a minimal impairment of one's freedom of expression. Far less drastic measures could be adopted in order to achieve this goal which impair one's freedom of speech to a far lesser degree. The government may simply outlaw telephone calls which are defined to be harassing. Thirdly, in order for the means to be proportional to the ends, there must be a proper balance between the effects of the limiting measures and the legislative objective. This involves a determination of "whether the effects of the law so severely trench on a protected right that the legislative objective is outweighed by the infringement". [5] Any government provision which infringes a right or freedom guaranteed by the *Charter* will only be permitted to stand as a reasonable limit if it meets the threshold test of having a pressing and substantial objective as well as all three branches of the proportionality requirement. The framework of analysis which I have briefly outlined is necessarily flexible and must be applied on a case by case basis so that it can be tailored to each fact situation as well as the particular *Charter* right or freedom implicated. (iv) Examples of the application of s. 2(b) and s. 1 of the *Charter* The balancing of objectives which must occur in order to determine the scope and limits of free speech may be illustrated by reference to some well known decisions of the Supreme Court of Canada. For example, in *R. v. Butler* [6] the Criminal Code prohibition against publishing, distributing or circulating obscene material was challenged on the grounds that it violated the *Charter*. This required the Supreme Court to address the difficult and controversial issue of whether and to what extent it is legitimate for Parliament to criminalize obscenity. Writing for the majority of the Court, I stated that "meaning sought to be expressed need not be 'redeeming' in the eyes of the court to merit the protection of s. 2(b) whose purpose is to ensure that thoughts and feelings may be conveyed freely in non-violent ways without fear of censure ". Thus, despite the fact that many may view pornography as offensive, harmful and undesirable, it is nonetheless a form of expression which has been curtailed by the obscenity law. In fact, it could be argued that one of the very reasons for the existence of the *Charter* protection is to shield expression from suppression on the basis that the particular meaning being conveyed is found to be unpopular, shocking or even offensive. Nonetheless, as I stated earlier, there are limits to free speech. Important countervailing values often conflict with people's desire to express whatever they choose. Thus, in the *Butler* case the key question was, notwithstanding the fact that the obscenity law contravened the *Charter*, was it a reasonable limit of free expression demonstrably justified in a free and democratic society. The Court held that the legislation had a pressing and substantial objective of avoiding harm to society, which could result from antisocial attitudinal changes caused by the exposure to obscene material. [7] Harm caused by the proliferation of violent or degrading and dehumanizing depictions amounting to an undue exploitation of sex is a substantial concern which justifies some restriction over the otherwise full exercise of freedom of expression. [8] In analysing whether the law met the proportionality requirement, it was emphasized that pornographic expression which had an economic motivation was far from the "core" of the freedom of expression values which I outlined earlier. It would be far more offensive, for instance, for the government to pass a law prohibiting any political discourse by all public servants than it would be to prohibit degrading material which potentially has harmful effects on society.[9] In the former case, the law would strike at the heart of the value of free speech in a democratic society. The same is not true in the case of an obscenity law. In *Butler*, we concluded that the means chosen to meet the objectives of Parliament were proportional to the ends. Although it is difficult to prove a direct link between obscenity and harm to society, it was sufficient that Parliament had a reasonable basis for so concluding. Therefore, there was a rational connection between the provision and the objective. Secondly, the obscenity law infringed the freedom of expression as little as possible in order to achieve its goals. And finally, given the fundamental importance of the objective of the legislation in comparison to the minimal infringement of one's freedom of expression, an appropriate balance was achieved between the effects of the limiting measures and the legislative goal. Upholding the obscenity law provides an example of where a right as fundamental as free speech may, in some circumstances, have to yield legitimately to other pressing needs and concerns of society. The *Keegstra* case [10] is another example where an extremely difficult and delicate balancing process between the values underlying the freedom of speech and other values was required. The Supreme Court of Canada was faced with deciding whether the Criminal Code offence of wilfully promoting hatred against an identifiable group could withstand a challenge under the *Charter*. Although it was unanimously concluded that the provision infringed the guarantee of freedom of expression, a narrow majority upheld the law as a reasonable limit in a free and democratic society. The existence of hate propaganda in Canada was sufficient to warrant concern due to the potential harm done to persons subjected to it. The negative impact on an individual's sense of self-worth and acceptance resulting from the derision, hostility and abuse associated with hate propaganda, coupled with the adverse effects on society at large led the Court to conclude that Parliament had a substantial and pressing objective which warranted overriding the freedom of expression. Again, I point out, that as with obscenity, it can hardly be argued that promoting hatred is one of the goals lying at the core of the protection of freedom of expression. The decision in Keegstra may be contrasted with that in *R. v. Zundel*. [11] There, the accused was charged with wilfully publishing false news in the form of a pamphlet which denied the existence of the Holocaust. In that case, a majority of the Supreme Court struck down the false news section of the Criminal Code as an infringement of the guarantee of free expression which could not be justified as a reasonable limit. There was no pressing or substantial objective to the provision that was sufficient to override a constitutionally guaranteed right. The law in question potentially encompassed a broad range of historical and social speech going beyond what is provable as a matter of pure fact. Any speech which went against current notions of truth could be subject to the provision and this would result in a "chilling effect" on free speech. Thus, the *Zundel* case provides an example of an impermissible attempt at suppressing free speech. If the truth or falsity of the content of the expression is the criterion upon which it is to be prohibited, we fall into the dangerous realm of imposing societal dogma on individual speech. Today's conventional wisdom may become discounted mythology in the future. It is only by permitting those with unpopular views to speak that society can grow. Ideas which appear to be patently false will attract substantial rebuttal. Only through open and uninhibited debate can the truth emerge. THE INTERRELATION BETWEEN FREEDOM OF EXPRESSION AND THE INFORMATION AGE With knowledge of how courts go about balancing the various interests which may come into conflict with unrestricted freedom of expression, one can turn to examine the ramifications of the information age on free speech. There has been substantial debate in the United States regarding the relation of the First Amendment to electronic bulletin boards and other electronic media of expression. Although the debate has not been as extensive in Canada, it is only a matter of time before these complex issues filter their way into the courts and we too must grapple with important legal questions. I would point out that, although the United States has a similar protection under the American Bill of Rights, the interpretation of freedom of expression must be determined with reference to the wording of our unique *Charter*. Whereas the First Amendment in the United States refers specifically to the freedom of speech or of the press, the *Charter* protects expression and specifically includes other media of communication aside from the press. Furthermore, the American Bill of Rights has no provision similar to our section 1 which explicitly requires the courts to balance any infringement of the *Charter* with other societal values. Therefore, although we can learn much from the experience of our neighbours to the south, it is important that we develop our own notions of free expression according to our unique society and Constitution. A case which may prove to be of some relevance to this debate arose in 1993. In *Ramsden v. Peterborough (City)* [12], the Supreme Court of Canada considered the constitutionality of a by-law prohibiting any posters on public property. The law was struck down as an unjustifiable infringement on the freedom of expression as the by-law prevented the communication of political, cultural and artistic messages. The purpose of the legislation, namely to avoid littering, aesthetic blight, traffic hazards and danger to persons repairing utility poles could not justify such an expansive and complete ban on free speech. There were many less intrusive means open to the city. The following relevant quote appears in the judgment of Mr. Justice Iacobucci: ... after the invention of modern printing technology, posters have come to be generally used as an effective, inexpensive means of communication ... Posters have been used by political parties, private and charitable organizations and by individuals. They convey messages, give notice of meetings and fairs ... In societies where the government tends to repress opposition ideas, posters are the only means of communicating opposition ideas to a large number of people. [13] The value of posters was recognized as an effective and inexpensive way of communicating ideas to a large number of persons. Posters have long been regarded as a means of communicating political criticism as well as artistic, cultural and commercial messages. [14] In many ways, it may be said that electronic media such as Internet are the posters of the late twentieth century providing an invaluable means of expression to a wide audience. Like posters, the cost is relatively inexpensive and therefore it is available to people of modest economic means. In some cities, electronic mail services are entirely free. Just as with posters, we must be cognizant of the tremendous value of electronic mail. However, not all aspects of electronic mail are positive. The free flowing nature of electronic media means that there will be an increased amount of obscene and hateful expression which may violate the provisions of the Criminal Code. As of yet, it has not been determined exactly who may be held liable for the publication of obscene, hateful or defamatory messages which appear across networks. [15] Computer networks allow individuals to publish almost anything behind a veil of virtual anonymity. Furthermore, systems operators themselves may find such material offensive and undesirable. Both of these factors raise the spectre of an increase in censorship of electronic mail as part of administrative policy and as a cautionary step to avoid potential civil or criminal liability. The consequences on free expression could be dramatic as the decision to allow or suppress certain forms of expression is left in the hands of the private organization or the university out of which the electronic mail originates. This places a tremendous amount of control over expression in the hands of the few. Does this problem of determining the source of the offensive e-mail justify prior censorship of the message? Should the administrative organs in charge of e-mail systems be entitled to determine what others may or may not see? How are we to ensure that the censorship merely extends to certain types of illegal expression and does not prohibit messages with which one simply disagrees or finds distasteful? These are only some of the questions raised by free speech and e-mail. We must also be aware that the technology that has provided such an expansive means of communication also carries with it a frightening capacity to censor. A stark example of private censorship occurred when a Phoenix law firm advertised its services worldwide via Internet. This outraged many who feel that computer networks such as Internet should be reserved for non-commercial forms of expression. The response of a Norwegian computer programmer was to create a computer program called "cancelbot" which automatically deleted every message sent out by the firm. [16] Effectively, the law firm's ability to advertise via electronic mail was, at least temporarily, impeded by the actions of one person halfway around the world. The ominous possibilities exposed by the preceding example causes concern. The information age has the potential of allowing those few with the necessary expertise to censor any information they dislike. Whether or not you agree with the sentiment that the Internet is no place for advertising, the fact remains that unilaterally freezing out another's expression based on the content of the message has chilling consequences for the freedom of expression. The prospect of censorship takes on added import when one considers the possibility that the *Charter* protection of freedom of expression may not apply to forms of electronic media which may be vulnerable to censorship. Although electronic mail can be used as a medium of expression, the *Charter* is essentially "an instrument for checking the powers of government over the individual". [17] It only applies to government action. Given that much of the world of electronic communications is controlled privately, without any government regulation, the *Charter* may be an ineffective tool to protect this type of free speech. For example, the individual who took it upon himself to obliterate the law firm's advertisements, would not be subject to the *Charter*. Unless a law exists prohibiting such conduct, there would be no legal recourse. 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 individual who publishes obscene, defamatory or hateful messages rather than prevent speech before it can be expressed. Otherwise, individuals may be putting themselves in the positions of courts to determine what is obscene and what is acceptable. However, certain universities (including the University of Waterloo) have chosen to ban electronic bulletin boards which carry material found to be offensive. This has raised a tremendous amount of controversy in the academic world. Issues of censorship are particularly sensitive where institutions of higher learning are involved since the hallmark of learning is free, uninhibited and robust debate. Censorship is the antithesis of this process. What legal recourse, if any, is available to those who feel they have been inappropriately censored? This raises the question of whether the administrative decisions of a university which censor electronic media may be subject to scrutiny under the *Charter*. The Supreme Court of Canada has had the opportunity to consider the applicability of the *Charter* to universities in another context, that of mandatory retirement policies. In *McKinney v. University of Guelph* [18], it was decided that in general a university is not a government entity for the purposes of attracting the provisions of the *Charter*. Given that private action is not subject to scrutiny under the *Charter*, does it necessarily follow that the decisions of universities to censor electronic media of communications are simply left to the judgment and consciences of those who are in control of the policies. *McKinney* left open the possibility that some form of activity by the University might constitute government action and thus, subject to the *Charter*. If governing bodies engage in acts of censorship, they run the risk of being classed as government action and subject to the control of the *Charter*. In this regard it is pertinent to observe that in the United States the First Amendment has been applied to State universities. [19] Notwithstanding the fact that the decisions of universities and individuals may not be subject to *Charter* challenges, some believe that the growing instances of pornography and defamation over electronic networks will likely lead to government regulation of the electronic highway.[20] Particularly, having regard to the problems of enforcement of obscenity and hate propaganda laws in the context of the elusive free-flowing world of electronic communications, governments may decide to keep tighter reigns on the information networks. Any government regulation of information technologies would be subject to scrutiny under the *Charter*. The freedom of speech over computer networks is no more absolute than for any other means of expression. As with the *Charter* analysis undertaken in the *Butler*, *Zundel* and *Keegstra* decisions, the scrutiny of any government regulation necessitates the balancing of interests between the goals sought to be achieved by the legislation and the importance of the right or freedom violated. There is certainly not an unlimited ability on the part of government to censor, however, other legitimate social goals must be factored into the equation. The ability of computer networks to provide a new and expansive forum for sexual and racial harassment, obscenity and violent messages may in fact demand government attention. The challenge in the information age is to determine how best to regulate electronic media and who should be held responsible for its abuse. We must be very careful not to unduly restrict free speech simply because it is difficult to control the illegal use of information technologies. Systems such as Internet can enhance an individual's ability to promote truth, political and social participation and self-fulfilment. Since these goals lie at the core of free speech, one might expect that it would be very difficult for the government to legitimately pass any regulations prohibiting the use of Internet. On the other hand, it must not be forgotten that the potential harm associated with obscene messages is magnified by the fact that the audience affected may be enormous and likely includes particularly vulnerable members of society such as children. While I would not wish in any way to prejudge the constitutional acceptability of regulating computer networks, it must be emphasized that the entire context of the medium must be taken into account. Another issue that Canadian courts may very well soon face relates to defamatory comments made over electronic media. This has already arisen in other countries. In an Australian case [21], an individual was held liable for defamatory remarks he sent across e-mail which attacked the reputation of an anthropology professor. His message reached a global audience. Given the severe consequences of such actions, we must determine whether it may be appropriate to hold the computer service companies controlling the use of the networks liable for the irresponsible actions of their subscribers. So far the United States has refused to go this route. In *Cubby, Inc. v. Compuserve, Inc.* [22] an action in libel was brought against Compuserve since its network service carried allegedly defamatory statements made by one of its subscribers. The New York District Court refused to find Compuserve responsible since it had no knowledge nor any reason to know of the statements. A determination of the scope of liability of network operators will surely have ramifications on freedom of speech. If the computer operators are held responsible for the expression of their subscribers it would place a duty on them to ensure that false defamatory messages are not published. This is the current responsibility of newspapers and other forms of media. The result would likely lead to an increase in screening of private messages. As well it would potentially result in escalating censorship as the companies would wish to protect themselves from possible civil or criminal liability. This would put the network operators in the unenviable position of assuming the role of deciding what is acceptable speech and what is not. The effect of technology on free speech has been discussed in other contexts as well. Recently, the Supreme Court considered the constitutionality of publication bans in order to preserve the fair trial of the accused. In *C. B. C. v. Dagenais* [23], the issue is whether it was legitimate to ban "The Boys of St. Vincent" from airing on television. Since the program would depict incidents that were the subject of a pending court case it was feared that it would interfere with a fair trial of the accused. Those opposing bans express concern about the efficacy of some publication bans. They note that recent technological advances such as satellite dishes and computer networking have created substantial difficulty in enforcing such bans. The fact that it is becoming much more difficult to meaningfully restrict the flow of information must be weighed into the balancing equation. If the efficacy of a ban is minimal due to technology, then it becomes harder to justify its existence. Once again, we see that the courts will have to consider the impact of the information age on the balancing of rights and freedoms under the *Charter*. Whether or not the government chooses to regulate electronic media of expression, the fact remains that many, if not all, computer networks are currently regulated and administered privately. This presents difficult issues as private individuals, groups and organizations are not necessarily subject to *Charter* scrutiny. It is essential that we examine very closely the ramifications of any action we take as private individuals which has the effect of restricting a value as fundamental as free speech. *Charter* values are the collective expression of values that society holds dear. Persistent violation of those values is an invitation for government regulation. PRIVACY CONCERNS Thus far, I have spoken about the impact that the information age has had and will continue to have on the freedom of expression. The rapid rise of the computer age has also brought to the forefront many other social and legal concerns such as the loss of privacy. The fear of loss of personal privacy has dramatically increased due to the ease with which information can now be assimilated, processed and stored. Technology has afforded law enforcement agencies opportunities for surveillance of Orwellian proportions. To preserve our privacy, it may be necessary to regulate the developing "information super-highway" in order to prevent intimate details of our lives being shared at the touch of a button. At the same time, we may have to re-evaluate our notions of privacy if we wish to take full advantage of modern advancements. In the recent annual report of the Privacy Commissioner, Bruce Phillips expresses great concern over the invasion of privacy that may occur as a result of the "information super-highway". [24] That the concern for privacy issues is serious is amply illustrated by the numerous newspaper and journal articles which debate the need for greater protection of individual privacy. A recent Gallup survey found that 84% of the respondents were worried about their privacy on the information highway. New methods of electronic surveillance, greater intrusions into our personal lives by the media, personal information being sold by banks and other businesses all give rise to concerns that there may be a high price to pay for the benefit of obtaining and communicating information rapidly and cheaply. Often, individuals may be entirely unaware that information about their lifestyle has been recorded. A poignant example is provided by the confirmation hearings of Judge Robert Bork for the United States Supreme Court. During the hearing, his video rental viewing habits were revealed. A reporter had tracked down the record of Judge Bork's rentals which was recorded by computer. I'm not exactly sure why anyone cares how many times Judge Bork rents Snow White. But this is hardly a unique example of the media subjecting a public figure to intense scrutiny. Here, technology was an accomplice. Another example of an invasion of privacy aided by technology comes from numerous reports of private e-mail being screened by systems operators and even employers. In fact, one instance in the United States involved allegations that an employer was engaging in the practice of regularly reading employees' e-mail messages. The potential threat to privacy rights raises questions about the extent to which we want to allow the media unrestricted freedom to report on the intimate details of our lives. Similarly, we may wish to regulate the use of e-mail in certain contexts in order to avoid the disclosure of sensitive information about individuals. Technology has brought into focus the clash that may sometimes exist between the right to privacy and the complete freedom of expression. Unlike freedom of speech, there is no explicit right to privacy guaranteed under the *Charter*. However, section 8 does provide that everyone has the right to be secure against unreasonable search or seizure. Underlying this right is the fundamental notion that in certain contexts individuals have a reasonable expectation of privacy. Whenever this is the case, the state is not entitled to subject that person to an unreasonable search or seizure since this would offend one's sense of personal dignity and autonomy. In a number of cases, the Supreme Court has emphasized that the notion of privacy is an essential aspect of human dignity. In *R. v. Dyment* [25] it was stated that: ... privacy is at the heart of liberty in a modern state and is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state. The Court recognized that privacy in relation to information is also based on the dignity and the integrity of the individual. As Mr. Justice La Forest observed, quoting from the 1972 Report of the Task Force on *Privacy and Computers* established by the Department of Communications and the Department of Justice: "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit." In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. [26] The Supreme Court also stressed that it is not good enough to vindicate privacy rights once they have been violated. Invasions of privacy must be prevented in the first instance. However, there are certain situations where privacy may be outweighed by other societal claims, such as law enforcement or protecting free speech. An example of a case where the right to privacy came into conflict with the freedom of expression was *Edmonton Journal v. Alberta (Attorney General)* [27]. There, the Province of Alberta had legislation that limited the publication of information arising out of court proceedings in matrimonial disputes. The goal of the legislation was to protect the privacy of the parties involved in the marital dispute and minimize the trauma of the experience. However, the statute came into direct conflict with the essential right of the public to an open court process. The majority concluded that the provisions had to be struck down as they unjustifiably infringed upon the ability of the press to publish what occurs in the courtroom. In this case it was impossible to give full respect to both privacy and freedom of speech. The question was one of "balancing the values to be protected by the *Charter* guarantee against the values of a free and democratic society sought to be fostered by the proposed law". Here, the privacy interests of litigants had to yield to the greater interest in preserving an open court. The legislation under scrutiny was simply far too broad and sweeping to meet constitutional muster. Notwithstanding that right to privacy did not prevail in this case, the Supreme Court specifically recognized that in this modern age, privacy "ranks high in the hierarchy of values meriting protection in a free and democratic society". [28] Another case stressing the importance of protecting privacy interests in the face of technology was *R. v. Duarte* [29] in which the issue concerned the surreptitious electronic recording of conversations by police. The Supreme Court found this action to be unconstitutional. If the state were allowed a free and unfettered discretion to record our private conversations, there would be nothing left to our basic right to exist free from state surveillance. This takes on added importance in our technological society given that electronic surveillance could potentially wipe out any expectation that our conversations will remain private. [30] Thus, the right of the state to further its goal of law enforcement must be carefully weighed against the right of individuals to be left alone. Similarly, in *R. v. Wong* [31] it was determined that secretly videotaping events in a private hotel room violated the *Charter*. One's expectation of privacy was extended to all existing means by which agencies of the state can electronically intrude on an individual's privacy as well as any technological means which may be used by law enforcement in the future. [32] Section 8 of the *Charter* is intended to keep pace with technology to ensure that privacy is protected no matter what form the invasion may take. The fact that our society relies so heavily on the existence of computers to store and retrieve data has had significant ramifications on police techniques of law enforcement. Society is forced to face difficult questions surrounding the extent to which it is acceptable for the government to take advantage of information technology in order to further goals of law enforcement. In *R. v. Plante* [33] the Supreme Court had to consider whether it was constitutionally permissible for the police to use its computer terminal linked to the city utilities' main frame computer in order to check the electrical consumption at a specified address. This would enable the police to determine whether or not it was likely that marijuana was being grown at the house, since this is often characterized by a higher than normal consumption of electricity. In that case I stated that: Consideration of such factors as the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained, and the seriousness of the crime being investigated, allow for a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement. [34] I observed that the "*Charter* should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state". [35] It seems repugnant to our sense of worth that details concerning our personal lives can be revealed via a computer terminal. However, in the *Plante* case itself, it could not be said that information revealing a pattern of electricity consumption would fall into such a category. Very little personal information about the person was revealed to the police. There was no reasonable expectation of privacy with respect to the computerized records in that case and there was no intrusion into confidential computer records maintained by a private citizen. In this context, the interests of law enforcement prevailed over the minimal violation of privacy. However, each case must be decided on its own facts, carefully analysing the extent to which respect for one's personal privacy and dignity has been violated. The apparent ease with which the state can now monitor our communications and assimilate information on private citizens also raises serious questions about the use of electronic media. Is there a reasonable expectation that our electronic messages are private? Surely it would be unacceptable for police to intercept private messages sent from one person to another. However, can anyone complain about police routinely watching public bulletin boards for potentially illegal content? In the latter case, the forum is open to the public and it is not likely that one could claim to have any expectation that the police would not monitor the messages. Do they have the right to record these messages and maintain them as evidence? The *Wong* case clearly rejected the right of the state to record the words of whomever they choose in the absence of a search warrant. However, *Wong* arose in the context of video taping activities in a hotel room. It remains to be seen if the same would apply to bulletin boards or electronic mail which have wide access to the public. In time, Parliament may enact laws permitting the use of other invasive technologies of surveillance. If this occurs, undoubtedly they will be subject to careful scrutiny to ensure compliance with the *Charter*. The scope of privacy under section 8 of the *Charter* will inevitably be defined in the context of the information age. On the other hand, governments may also decide to enact laws which protect privacy. Some of these laws, as seen in the *Edmonton Journal* case, may improperly infringe one's freedom of expression. The Supreme Court of Canada has placed tremendous importance on individual privacy and it must be balanced against any assertion of the right to free speech. As the information age expands threats to privacy, perhaps society will accept greater restrictions on speech. Alternatively, the more that technology affords opportunities to reach wide audiences, the more society may come to resent any attempts to restrict free speech. It will not be easy searching for an appropriate middle ground. CONCLUSION What I have attempted to illustrate in this address is how basic rights must be analyzed in the context of new technologies in the information age. Society will have to adapt as a rapidly evolving world raises new social, political, philosophical and legal issues. The ability to more easily store, retrieve, transmit and process data in seconds, without regard to borders will no doubt be beneficial. Technology has opened new avenues of discovery and debate as well opportunities for social, artistic and political participation. But, as I have hoped to demonstrate, it will also raise many conflicts and legal issues. Along with the escalating intrusions into our personal lives which have been accompanied by the information age, technology has also afforded people the opportunity to spread messages of obscenity, hate and defamation to wide audiences. With the pros and cons in mind we must strive to find an acceptable balance between free speech, privacy and other societal values which may be implicated. The *Charter* has been described as a "living tree capable of growth and expansion within its natural limits". [36] In other words there is a need for a broad perspective in interpreting the *Charter* such that the text may be adapted to meet new situations. This is all the more apt today in a rapidly changing world. This is the challenge which faces the courts as well as all Canadians as we strive forward on the rapids of technological advancement, while trying at the same time not to be pulled under by dangerous undercurrents that may undermine the essential rights and freedoms of a democratic society. Endnotes 1. (1989), 64 D.L.R. (4th) 577 (S.C.C.) at 607 2. *R. v. Zundel*, [1992] 2 S.C.R. 731 at 752. See also *R. v. Butler* (1992), 70 C.C.C. (3d) 129 (S.C.C.) at 161. 3. [1986] 1 S.C.R. 103 4. *R. v. Edwards Books & Art Ltd.*, [1986] 2 S.C.R. 713. 5. *R. v. Butler*, *supra*, at pp. 168-169. 6. (1992), 70 C.C.C. (3d) 129 (S.C.C.) 7. *R. v. Butler*, *supra*, at p. 155. 8. *R. v. Butler*, *supra*, at 159. 9. *Osborne v. Canada*, [1991], 2 S.C.R. 69 10. *R. v. Keegstra* (1990), 61 C.C.C. (3d) 1 (S.C.C.) 11. (1992), 75 C.C.C. (3d) 449 12. (1993), 106 D.L.R. (4th) 233 (S.e.e.). 13. *Re Forget* (1990), 74 D.L.R. (4th) 547 at 557. 14. See *Fink v. City of Saskatoon* (1986), 7 C.H.R.R. D/3431 at D/3440 (Sask. Board of Inquiry). 15. There have been some cases in the United States and in Australia which have considered the liability of systems operators and individuals for libelous statements which appear on E-mail. For example, in *Rindos v. Hardwick* (25 March 1994), No. 940164 (Supreme Court of Western Australia) an individual was held liable for a defamatory message he sent across E-mail which reached a global audience. In *Cubby, Inc. v. Compuserve Inc.* 776 F.Supp. 135 (1991) the United States District Court, S.D. N.Y. dismissed an action in libel against Compuserve resulting from defamatory statements disseminated by one of its subscribers. Compuserve was held to be merely a distributer of information and could not be liable absent knowledge of reason to know of the defamation. Since Compuserve did not exercise editorial control over the messages they transmit they could not be held responsible for the defamatory message. 16. See Peter Lewis, "Censors Become a Force On Cyberspace Frontier" *The New York Times* (29 June 1994) A1. 17. Mckinney, *supra*, at 633. 18. [1990] 3 S.C.R. 229; (1990), 76 D.L.R. (4th) 545. 19. *Waters v. Churchill* 114 S.Ct. 1878 (1994); *Gary E. Widmar et al. v. Clark Vincent et al.i*, 454 U.S. 263; 102 S.Ct. 269 (1981); *Police Department of Chicago v. Mosley*, 408 U.S. 92; 92 S.Ct. 2286 (1972); *Cox v. Louisiana*, 379 U.S. 536; 85 S.Ct. 453 (1965); *Healy v. James*, 408 U.S. 169; 92 S.Ct. 2338 at 2345 (1972); *Tinker v. Des Moines Independent School District*, 393 U.S. 503; 89 S.Ct. 733 at 736. 20. Howard Rheingold, "Why Censoring Cyberspace Is Futile" [Originally published in the *San Francisco Examiner*, part of a weekly series of columns called "Tomorrow". Reported on Internet with permission]. 21. *Rindos v. Hardwick*, *supra*, note 14. 22. 776 F.Supp. 135 (U.S. Dist. Ct., N.Y.) 23. Judgment reserved. 24. *Annual Report Privacy Commissioner*, 1993-94 25. (1988), 45 C.C.C. (3d) 245 at 254. 26. *R. v. Dyment*, *supra*, at 255-256. 27. (1989), 64 D.L.R. (4th) 577. 28. *Edmonton Journal*, *supra*, at 600. 29. (1990), 53 C.C.C. (3d) 1 (S.C.C.) 30. *Duarte*, *supra*, at 11. 31. (1990), 60 C.C.C. (3d) 460 (S.C.C.) 32. *Wong*, *supra*, 476. 33. (1993), 84 C.C.C. (3d) 203. 34. *Plante*, *supra*, at 212. 35. *Plante*, *supra* at 213. 36. *Re s. 24 of B.N.A. Act; Edwards v A.G. Canada*, [1930], 1 D.L.R. 98. COPYRIGHT (C) 1994 BY JOHN SOPINKA. ALL RIGHTS RESERVED. DO NOT REPRODUCE WITHOUT PERMISSION.