The Netly News
Tuesday, May 13, 1997

No, Canada

Obscure Canadian law blocks free speech on web

by Declan McCullagh, declan@well.com

Krishna Bera wasn't surprised when the order from the Canadian government arrived last Friday. It was couched in the stilted language of universal bureaucratese, but its message was cold and clear: Purge a political endorsement from your web site or go to jail.

Bera's offending web page had said simply, "Vote Green." It didn't exhort its readers to commit a crime. It wasn't libelous or defamatory. It didn't even feature any porn. Yet the pro-Green Party statement was enough to draw the ire of the commissioner of elections, for Canada has a rule, buried in the 187-page Elections Act, that prohibits anonymous political recommendations. And Bera's web page was unsigned.

Which is why Bera, a 33-year-old computer consultant who lives in Ottawa, had expected the notice. "One of the reasons I was doing this was to get a clarification from the government what the status of the law was" as it applied to the Internet, he says. "The offense was that I did not list the sponsor of the page." The Elections Act says that "every person who sponsors or conducts advertising without identifying the name of the sponsor and indicating that it was authorized by that sponsor is guilty of an offence."

So why did Bera put up his page knowing it would draw the wrath of Elections Canada, then take it down without a fight? The answer is he's planning to fight, though he admits his battle plans are still sketchy. Still, momentum may be on his side: a court struck down a neighboring section of the law related to campaign donation limits last year.

Bera's tussle with the Canadian authorities comes as other countries are taking their own steps to muzzle anonymous speech on the Net. A European Union green paper released last fall criticizes anonymity online. Both Malaysian Internet providers require picture identification for an account. Finland's uncertain politics were enough to prompt Julf Helsingius to pull his pseudonymous remailer, anon.penet.fi, offline last year. In the U.S., the state of Georgia has passed a law banning online anonymity.

The struggle, after all, is a fundamental one. The cloak of anonymity has long been used to conceal authors of politically controversial screeds from oppressive governments. Without it, people may be afraid to expose truths about the powerful for fear of retribution. That's exactly why governments would like to outlaw it.

Fortunately in the U.S., anonymity has a distinguished history. Thomas Paine in 1776 published "Common Sense" and signed it "Written by an Englishman." Alexander Hamilton and James Madison wrote "The Federalist Papers" under the alias of "Publius." Colonial revolutionaries had good reason to be wary of attaching their names to their writings: Benjamin Franklin's brother was imprisoned in Boston for criticizing the government.

"The Canadian law sounds exactly like the law the U.S. Supreme Court invalidated in McIntyre v. Ohio," says Jonathan Wallace, author of "Sex, Laws, and Cyberspace." "The policies that underlie the Supreme Court decision are valid in any democracy: You're going to have a greater diversity of discourse if you permit anonymity than if you ban it. If you ban it you chill a lot of speech that would add to that diversity."

The censor-happy bureaucrats at Elections Canada -- the rough equivalent of the U.S. Federal Election Commission -- are unimpressed with such arguments. "We will investigate alleged breaches and we act on written complaints," says spokesperson John Enright. "If at the end of the day there is a breach determined, then the file is turned over to the public courts system -- in which case it is prosecuted in the courts in the jurisdictions the alleged infraction occurred." Enright refused to confirm or deny that an investigation was in progress.

But at a recent press conference, Canada's chief electoral officer, Jean-Pierre Kingsley, was more forthcoming: "If it is a third party, someone or some group that is not a political party, registered under the Canada Elections Act for purposes of the election, it must also carry the name of the person sponsoring the ad, or the name of the organization sponsoring the ad." To Kingsley, the Net should be treated like television or radio.

For his part, Bera has taken his page offline: "Since I refused to identify the sponsor, on principle, I took the page down." (Now mirror sites have begun to appear.)

Why didn't he move his site to a more friendly jurisdiction, such as the U.S. or the Caribbean? Bera replies: "I thought about that, but it seems to me that the issue of free speech has to be settled at home. It's a matter of principle; it's not a matter of trying to get around regulations. The regulations shouldn't be there."


Copyright © 1997 by Declan McCullagh. All Rights Reserved. Reprinted with permission.