Wired News
Tuesday, January 19, 1999
12:10pm, PST

Child-Porn Ruling Splits Canada

Free-speech advocates are hailing a Canadian judge's ruling that merely possessing child pornography is no crime. Others, shocked, are trying to undo the decision.

by Pierre Bourque, pierre@achilles.net

Canadian online organizations are reeling from a recent British Columbia Supreme Court decision that allows anyone in the province to legally possess child pornography.

In a case involving possession charges against John Sharpe, of the Vancouver suburb of Surrey, Justice Duncan Shaw ruled last Friday that possessing child pornography is not a crime.

"There is no evidence that demonstrates a significant increase in the danger to children caused by pornography", Shaw ruled. Sharpe possessed computer disks containing a text entitled "Sam Paloc's Flogging, Fun, and Fortitude -- A Collection of Kiddiekink Classics."

Now anyone in the Western province can possess child pornography, at least until Canadians hear the result of an appeal of the decision filed Monday by the British Columbia Crown Attorney.

While the decision affects the Criminal Code of Canada, it applies only to British Columbia, although there are fears that it may act as a precedent in similar cases in other Canadian provinces. Further, it applies strictly to possession; sale and distribution of child pornography remains illegal.

The nation's leading online civil liberties group praised the controversial decision.

"This decision is more about personal privacy and freedom of thought, in contrast to freedom of the press", said David Jones, president of Electronic Frontier Canada and a vocal online rights activist. "It's still illegal to publish kiddie porn."

"This court decision helps protect regular Internet users from the potential nightmare of getting tangled up in a messy kiddie-porn criminal case, just because someone sent you some raunchy images by email or you accidentally visited a disgusting Web site and either way, some kiddie porn images may have unintentionally ended up on your hard drive."

Jones said that the decision will also protect journalists who in the past have risked criminal prosecution when investigating the availability of child pornography online, "as long as they don't pass the material along to anyone else".

Last summer, American journalist Larry Matthews pleaded guilty to charges brought against him for child porn that he said he had acquired for story research.

Others came out strongly against the ruling.

"Adults generally possess the judgment to deal with offensive online material", said Warren Kinsella, a lawyer and outspoken author on matters dealing with hate and pornography.

"But young people, who we all know to be impressionable, don't often possess the wherewithal to assimilate such expressions of hatred. And that is why I, and many others, believe restrictions on such material are appropriate."

The managing director of AOL Canada said that the decision didn't change the company's current strict rules about porn.

"AOL practices a policy of zero tolerance with respect to child pornography, regardless of local laws", said Stephen Bartkiw. "Our terms of service are very clear and articulated when it comes to this issue. We cooperate with authorities and we will terminate the account of any member who is involved with child pornography online."

Canadian law enforcement officials have declined to comment on the decision while the issue remains before the courts, but their American counterparts expressed concern with the decision.

"The Internet knows no borders", said San Francisco-based FBI Special Agent Mary Marsh, who added that the FBI is powerless in foreign jurisdictions.

"We can only make legislation that we can enforce, but hopefully there will eventually be laws in place [in Canada] to deal with cyberspace crimes."

Marsh added, "The only pornography that is illegal is child pornography. This is of concern to us. We all have an obligation to protect -- especially -- children."

Shaw's ruling is believed to be the first of its kind in North America. Possession of child pornography has always been considered a crime in both Canada and the United States.

The jurisdiction issue will likely arise in Paris this week, as experts from 40 countries meet to launch an all-out war against online pornography.

In the short term, though, Jones said child pornographers are not likely to shuffle their archives to western Canada anytime soon.

"[I] wouldn't expect any increased availability of this kind of material online," Jones said. "If anything, we might see a crackdown as a way for the government and law enforcement to satisfy public displeasure at the decision."

And Canadian ISPs aren't necessarily greeting the decision with enthusiasm. According to Dan Lam, a spokesman for TieUs, a Vancouver-based ISP with 2,000 members, his company "would prefer regulations".

"Parents are very concerned. They don't want to have their children exposed to child pornography online." Lam added that he "feels weird" that no regulations currently exist, though he noted that his customers are required to sign a contract stating they will not indulge in kiddie porn with their account.

Other ISPs contacted for this story, including PrismNet.bc.ca, Sunshine.net, and Canada Internet Direct, declined to comment.

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