The Edmonton Journal
Tuesday, September 16, 1997

Supreme Court Justice
looks for ways to regulate Internet

by Duncan Thorne

EDMONTON - Cyberspace needs new laws and international enforcement to curb pornography, hate literature, and other abuses, says a Supreme Court justice. But don't bet on politicians acting fast on legislating the Internet, Justice John Sopinka told an ethics conference Monday in Edmonton.

"I'm not optimistic as to how quickly Parliament or the legislatures will move on it. It's not a big vote-getter."

[Sopinka] Existing laws are flexible and can be adapted "to a certain extent", he told the Council on Governmental Ethics Laws.

But there are problems - such as pornography available online from outside Canada and the ability of senders to be anonymous.

Despite his warning, Sopinka said he doesn't want laws preventing reasonable freedom of speech or undermining privacy.

He said he hopes the Charter of Rights and Freedoms will protect free speech. But the Charter doesn't protect against individuals invading a person's privacy, such as with "sniffers" - programs which monitor passing messages and save credit card numbers, passwords, and other confidential information.

Sopinka referred to a 90-minute video collection of Internet pornography, shown at a conference of Canadian police chiefs last year. It was so upsetting, 175 chiefs left the room.

"The result of this information explosion is that people have over-dosed on free speech." He said enforcement agencies in different countries are scouring the books to see if existing laws can curb the excesses.

Canadian courts have not tackled whether an Internet provider breaks the law when it unknowingly carries libellous material, he said.

Case law suggests the provider has a defence, if it is "operating its business properly". Sopinka suggested the defence may work if a provider uses an automatic screening program, even though such programs have limited use.

Much of the obscene material on the Internet comes from the United States. He said the Criminal Code provides that no person can be convicted for an offence committed outside Canada.

Sopinka said the answer to Internet pornography may be an international agreement, similar to those for law enforcement and custody orders.

When hate literature crosses borders there are the same problems as when dealing with obscenity, he said. "Where did the offence take place?"

He said the German phone system cut off access to all computers linked to online server Web Communications, fearing prosecution under anti-Nazi laws, when Web rented space to Toronto-based neo-Nazi Ernst Zundel.

Free-speech advocates quickly duplicated Zundel's Web pages, thwarting the German move.

It's possible for people to be anonymous in cyberspace by sending a messages through a so-called anonymous remailer, to strip away details about where the message came from. He said remailers were originally to let victims of child abuse or AIDS take part in private therapeutic discussion.

"However, an anonymous speaker may also indulge in the worst abuses of free speech, such as child pornography and hate propaganda, or other crimes such as extortion, stalking, threats, or harassment, with perfect impunity."

One option is to make anonymous remailers keep records, available to the courts.

"I predict that only partial success will be achieved in eliminating the abuses", he told the conference. He said it's the price of free speech and the Internet's benefits.


About 200 delegates from across North America are attending the Council on Governmental Ethics Laws which focuses on issues in the fields of ethics, campaign finance and reform, elections, freedom of information, and lobbyists registration.

Justice John Sopinka

Supreme Court of Canada

Charter of Rights and Freedoms

Electronic Frontier Canada

Electronic Privacy Information Centre

Electronic Frontier Foundation

Internet Privacy Coalition

Copyright © 1997 by The Edmonton Journal. All Rights Reserved. Reprinted with permission.