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Ontario court overturns decision
on Web-based libel and slander: 'Broad social ramifications'
of the issue require more thorough judicial attention
By KIRK MAKIN, Globe
and Mail JUSTICE REPORTER, Oct. 23, 2003
The Ontario Court of Appeal
has overturned a ruling stating that anybody who posts defamatory
information on the Internet is a broadcaster and can be sued
as if they were a regular newspaper or broadcast outlet.
The court ruled 3-0 yesterday
that the issues are far too complex and involve such "broad
social ramifications" that they should not have been disposed
of by a lower court summary judgment.
The ruling was a victory for
Thunder Bay city clerk Elaine Bahlieda, whose defamation lawsuit
against Thunder Bay city councillor Orville Santa was short-circuited
by a trial judge. The suit can now go ahead.
Ms. Bahlieda alleged that Mr.
Santa libelled her by posting material harmful to her reputation
in 2001.
It was the first time a Canadian
court had decided the issue of whether an Internet posting qualifies
as a broadcast under provincial libel and slander legislation.
"Our client is strongly
of the view that it would be inappropriate to extend the special
protection over broadcasts to the Internet without the authority
of the legislature," Ms. Bahlieda's lawyer, Peter Downard,
said in an interview yesterday.
In her trial ruling, Madam
Justice Helen Pierce of Ontario Superior Court barred the lawsuit
because it was not launched within the normal time allotment
pertaining to broadcast material.
She stated that while the Internet
uses the same "infrastructure" as radio and television,
it can reach a wider audience than either.
Judge Pierce said that in light
of Ms. Bahlieda having failed to launch her lawsuit within the
allowable period for broadcast statements, it could not proceed
to trial.
However, Ontario Chief Justice
Roy McMurtry stressed yesterday that experts disagree over whether
the factors that apply to conventional broadcasts apply equally
to the Internet.
He said there is also dispute
about whether publication over the Internet should be seen as
"immediate."
The ruling by Judge Pierce
had meant that strict limits apply to the length of time broadcast
plaintiffs have to initiate a libel action. Plaintiffs would
have six weeks from the time they learned of an offensive posting
in which to initiate the lawsuit. They would have three months
in which to file a full statement of claim.
Judge Pierce's decision also
meant that defendants would be exposed to far higher damages
than had been the case, since a defamatory statement on the Internet
can potentially be read by so many people around the world. (She
also ruled that a portion of the claim relating to statements
that Mr. Santa made and faxed can continue.)
People have always been subject
to lawsuits for posting defamatory material, but not on the basis
that they had broadcast the offensive material. The principle
behind a limitation period is to give a defendant an opportunity
to apologize or retract his or her statement.
© 2003 Bell Globemedia Interactive
Inc. All Rights Reserved.
U.S. eyes proposal to monitor
cyberspace: Web surveillance part of Bush security strategy
JOHN MARKOFF AND JOHN SCHWARTZ,
NEW YORK TIMES, Dec. 20, 2002
NEW YORK-The Bush administration
is planning to propose requiring Internet service providers to
help build a centralized system to enable broad monitoring of
the World Wide Web and, potentially, surveillance of its users.
The proposal is part of a final
version of "The National Strategy to Secure Cyberspace,"
set for release early next year, according to several people
who have been briefed on the report. It is a component of the
effort to increase national security after the Sept. 11, 2001,
attacks.
U.S. President George W. Bush's
Critical Infrastructure Protection Board is preparing the report,
and it's intended to create public and private co-operation to
regulate and defend the national computer networks, not only
from everyday hazards like viruses but also from terrorist attack.
Ultimately the report is intended to provide an Internet strategy
for the new Department of Homeland Security. Such a proposal,
which would need congressional and regulatory approval, would
be a technical challenge because the Internet has thousands of
independent service providers, from garage operations to giant
firms like American Online, AT&T, Microsoft and Worldcom.
The report does not detail
specific operational requirements, locations for the centralized
system or costs, people who were briefed on the document said.
While the proposal is meant
to gauge the overall state of the worldwide network, some officials
of Internet companies who have been briefed on the proposal say
they worry that such a system could be used to cross the indistinct
border between broad monitoring and wiretap.
Stewart Baker, a Washington
lawyer who represents some of the largest Internet providers
in the U.S., said, "Internet service providers are concerned
about the privacy implications of this as well as liability,"
since providing access to live feeds of network activity could
be interpreted as a wiretap or as the "pen register"
and "trap and trace" systems used on phones without
a judicial order.
Baker said the issue would
need to be resolved before the proposal could move forward.
Tiffany Olson, the deputy chief
of staff for the president's Critical Infrastructure Protection
Board, said yesterday the proposal, which includes a national
network operations centre, was still in flux. She said the proposed
methods do not necessarily require gathering data that would
allow monitoring at a individual user level.
But the need for a large-scale
operations centre is real, she said, because service providers,
security firms and other online companies only have a view of
the part of the Internet that is under their control. "We
don't have anybody that is able to look at the entire picture,"
she said. "When something is happening, we don't know it's
happening until it's too late.''
The report was released in
draft form in September, and described the monitoring centre,
but it suggested it would likely be controlled by industry. The
current draft sets the stage for the government to have a leadership
role.
The new proposal is labelled
in the report as an "early-warning centre" the board
says is required to offer early detection of Internet-based attacks
as well as defence against viruses and worms. But Internet service
providers argue its data-monitoring functions could be used to
track the activities of individuals using the network.
An official with a major data
services company who has been briefed on several aspects of the
government's plans said it was hard to see how such capabilities
could be provided to government without the potential for real-time
monitoring, even of individuals.
Bill
recognizes legality of electronic documents ------------------------------------------------------------------------
By David Gambrill Law
Times
Lawyers take note: Contract
law is about to become just as valid in cyberspace as it is in
the traditional paper world.
What's more, this new reality
will likely force lawyers to consider the legal ramifications
of online security and privacy issues.
E-commerce contracts are among
the issues raised by the Ontario government's proposed electronic
commerce act, which is now in second reading. The Bill confirms
legal recognition of electronic information and documents --
with the notable exceptions of wills, powers of attorney or "negotiable
instruments" like cheques.
Electronic contracts now
legal
"What we're trying to
do is to make the law media-neutral," says John Gregory,
counsel for the Ontario Ministry of the Attorney General, who
suggested the legislative move to the government in 1996. "It
will be the same law for paper as for electronic communication."
The province introduced the
electronic commerce act after four years of extensive consultation
with more than 150 legal, business and government representatives.
The Bill is based on the United
Nations Model Law on Electronic Commerce, which was adopted by
the UN in the mid-'90s. That model was, in turn, adopted in 1999
by the Uniform Law Conference of Canada, a federal-provincial-territorial
legal body.
Participants in the Uniform
Law Conference process have described the legal recognition of
e-commerce as "long overdue."
"In Ontario alone, there
are hundreds of different acts that use words like 'in writing'
or 'assigned in writing,'" notes Alan Gahtan of Bennett
Jones, who was involved with the government consultations as
a representative of the Canadian Bar Association-Ontario. "This
Bill is clarifying that just because it says 'in writing,' the
fact that you're using e-commerce isn't violating that any more."
Bill a good start
In turn, Gregory adds, this
will give lawyers more freedom to express their opinions about
the validity of electronic contracts.
"I think the Bill helps
lawyers uncross their fingers," he says. "A lot of
lawyers' clients are out there doing e-commerce now, and their
lawyers are saying, "Well, I don't know whether this is
going to work, legally."
"And the question is:
How much do you bet on a 'probably' from your lawyer?"
Participants in the Uniform
Law Conference agree with Gregory that the bill is a "good
first step," despite the act's silence on issues concerning
the legal nature and authenticity of electronic contracts.
"I don't want to damn
it with faint praise," says Simon Chester of the KNOWlaw
group at McMillan Binch. "There's an old French proverb
from Voltaire that says, "The best is the enemy of the good."
"This is a good initiative.
It's not going to be the ultimate e-commerce statute, but if
we waited for the ultimate e-commerce statute, we might have
waited for a long time."
Bill overlooks online security
and privacy
But while most are hailing
the legal recognition of contracts in the electronic world, many
note the legislation does not address crucial issues like online
security and privacy.
Online security issues arise
because while the law may treat the paper and electronic worlds
as 'neutral,' there are differences between the two.
In 1997, for example, the United
Nations Commission on International Trade Law (UNCITRAL) discussed
the need for a legal framework that would tackle the issue of
the authenticity of digital signatures.
"In an electronic environment,
the original of a message is indistinguishable from a copy, bears
no handwritten signature, and is not on paper," reads a
1997 UNCITRAL report. "The potential for fraud is considerable,
due to the ease of intercepting and altering information in electronic
form without detection, and the speed of processing multiple
transactions."
Gregory acknowledges the province's
Bill does not address the potential legal effects of electronic
signatures. But he says the law simply "shouldn't be going
there."
"Face it, for half the
people doing business these days, you can't read their signatures
anyway," says Gregory. "It's just a scrawl. Well, why
do you trust that?"
"We don't go there on
paper, and we're saying we shouldn't go there electronically
either."
Wendy Matheson, a litigation
and technology lawyer at Torys, agrees in a way with Gregory.
She says the act's general nature is not a liability; rather,
it opens the door for lawyers to consider online legal issues
such as security and privacy.
Shift affects definitions,
privacy and access
Gahtan said deliberations around
the law raised a number of issues surrounding the applicability
of contract law to the Internet. The provincial act recognizes
that the new electronic medium may put a kink in traditionally
accepted legal definitions of a contract.
For example, s. 1 of the proposed
act makes reference to an "electronic agent," a computer
program used to respond to electronic documents without any review
at the time of the contract. This raises the issue of what it
means to have an electronic "intent" to form a contract.
"I remember first-year
law, you need intention, a mutual intention," says Gregory.
"But where is the intention at the time of a contract when
I have a piece of software and tell it: 'Find me on the Net the
best price for a ticket to Vancouver this week, and buy it for
me when you find it?'"
"Where is the intention
when my robot finds it at three in the morning on the Net somewhere?"
And then there's also the issue
of privacy.
"I know the act is designed
to be policy-neutral," says Brian Beamish of the Information
and Privacy Commission. "But our feeling was that as you
move from a paper world to an electronic world, there are certain
implications involved that could impact on privacy and access
rights as well."
Based on recommendations by
the commission, the government made the proposed electronic commerce
act subject to the Freedom and Information Act. The use of "biometrics"
to identify people -- such as voice recognition, finger and iris
scans, and dynamic signature information -- is not permitted.
Also, institutions cannot destroy
paper documents immediately upon conversion into electronic documents.
This article does not constitute
legal or other professional advice and no responsibility for
any loss occasioned to any person acting or refraining from action
in reliance upon material contained in this article is accepted
by the author or Canada Law Book Inc.
(c) Canada Law Book Inc.
2002.
Scott Fenton on Wiretapping and Other Electronic Surveillance:
Law and Procedure ------------------------------------------------------------------------
By Sandra Mingail Web
Managing Editor
In the coming months, our Web
site will spotlight some of Canada Law Book's recent publications.
In this inaugural author's interview, we spoke with Scott Fenton,
one of the author's of Wiretapping and Other Electronic Surveillance:
Law and Procedure.
Mr. Fenton provides an overview
of the main issues surrounding electronic surveillance. He also
hints at some of the new chapters that he and his co-authors,
Robert Hubbard and Peter Brauti, are preparing for the book.
For your convenience, we have included the book's table of contents
as a means of summarizing its scope.
Longstanding professional
and personal interest in electronic surveillance issues
Mr. Fenton first developed
his interest in wiretap law as a Crown attorney at the federal
Department of Justice in Toronto. He holds a fascination for
the area of privacy, and considers himself a civil libertarian
at heart.
"I'm very much attuned
to the need for there to be this balance [between privacy and
legislation], so that the rights of the individual are not sacrificed
to the interests of law enforcement," states Mr. Fenton.
According to Mr. Fenton, wiretap
and other electronic surveillance are the most insidious forms
of government interception in our private lives. He is adamant
that the Charter of Rights and Freedoms be respected in order
to ensure privacy.
Groups such as the Canadian
Civil Liberties Association and the Ontario Law Union, he says,
are crucial participants in ensuring privacy issues are upheld
during the course of law enforcement and court proceedings.
Are privacy rights of Canadians
safeguarded?
Currently, law enforcement
officers must apply to the courts for the right to intercept
private communications. However, subsequent evidence collected
through electronic surveillance may still be challenged under
the Canadian Charter of Rights and Freedoms.
As Mr. Fenton points out, Canadian
courts are the primary guardians of citizens' privacy rights.
They must work to achieve a delicate balance between detecting
and eradicating crime, and respecting the rights of Canadian
citizens to go about their business without government interference.
"The law regarding electronic
surveillance has become increasingly complex," says Mr.
Fenton. "The overlay of the Charter has certainly given
rise, quite properly, to extensive litigation in relation to
privacy rights. That in turn, has spawned a new generation of
rules and legislative provisions dealing with specific forms
of legislation."
According to Mr. Fenton, the
adequacy of current legislation surrounding electronic surveillance
is largely a matter of personal opinion. " As new issues
come forward," he says, "the courts will continue to
grapple with the whole issue of where the appropriate balance
lies."
Uncharted territory concerning
Internet issues
One of the key issues to be
addressed in the realm of electronic surveillance, explains Mr.Fenton,
is the area of Internet communications. That would include not
only Web site interactions, but also the pervasive use of electronic
mail for professional, business and personal use.
"As it is presently drafted,"
explains Mr. Fenton, " Part 6 of the Canadian Criminal
Code does not expressly address whether or not police officers
can intercept Internet and e-mail communications."
The U.S. has had several cases
where e-mail interceptions have been used as evidence, says Mr.
Fenton. But there have been no such cases on Canadian soil. For
this reason, claims Mr. Fenton, it remains undetermined whether
the Criminal Code would allow a law enforcement officer to apply
to intercept online communications, as a form of private communications.
"There's a world of jurisdictional,
substantive legal and technical issues that will present themselves,"
predicts Mr. Fenton.
It is also unclear what sort
of legislation may be needed to deal with issues involving encryption
of communications. For instance, will the courts rule that in
the case of granting the right to undertake electronic surveillance
of e-mail, that private keys must be handed over in order to
"unlock" encrypted messages?
" ... the world of communications
is changing rapidly," concedes Mr. Fenton, " and it's
going to be necessary for law enforcement to properly fulfill
their functions to protect the public interest and to be able
to access in the appropriate case, communications over the Internet."
Upcoming chapters on Internet
communications
Mr. Fenton and his co-authors
plan to update their publication with chapters dealing with issues
of jurisdiction, law enforcement and technical issues surrounding
Internet communications and electronic surveillance. Mr. Fenton
concedes that this area is extremely specialized, and largely
untapped from the perspective of legal analysis.
As there have not yet been
any Canadian cases dealing with these issues, much of the content
will be gleaned from American research, although existing Canadian
academic pieces will be consulted.
Such statistics would give
the public "almost no idea" of the sentencing practices
of a judge, he says, adding judges rarely issue written reasons
in these types of cases.
"As the world moves to
wired and wireless Internet communications, so too must both
law enforcement and the courts, in terms of safeguarding privacy
interests and developing a proper code of procedure... when pursuing
alleged communications in the furtherance of crimes," says
Mr. Fenton.
Saudis block 2,000 websites:
Net use is catching on in Saudi Arabia
By Alfred Hermida, BBC News
Online technology staff, 31 July, 2002
If you tried to look at Rolling
Stone magazine on the web from Saudi Arabia, you would find that
access has been denied.
You would not have much luck
either if you tried the American women's lifestyle site iVillage.com.
These sites are among the 2,000
blocked by the Saudi Government, a Harvard Law School has found.
Most of the blacklisted sites
were sexually explicit or about religion. But also caught in
the net were sites about women, health, drugs and pop culture.
"We found blockage of
quite a bit of content beyond political content and pornography,"
said Ben Edelman, one of the researchers behind the report.
"We found the blocking
of content about women's history or sites about bathing suits.
So if you want to buy something to swim in, they seem to treat
that as if it were pornographic in Saudi Arabia," Mr Edelman
told the BBC programme Go Digital.
Electronic
controls
For the study, Jonathan Zittrain
and Benjamin Edelman at Harvard tested 64,000 websites, with
the full collaboration of the Saudi Government.
"Saudi Arabia was willing
to let us test their proxy servers," said Mr Edelman.
"They were willing to
connect to their version of the internet to let us find what
they allow and what they don't. Most other countries have not
been willing when asked."
The Saudis are also open about
their censorship of the web. If a site is blacklisted, the user
is directed to a page that explicitly informs him or her that
access to the site has been denied.
This contrasts to other countries
like China, where a surfer simply gets an error message. It means
they do not know if the site is blocked or if there is something
wrong with the connection.
Sexually explicit
Saudi Arabia filters all internet
traffic through a central array of proxy servers maintained by
the Internet Services Unit (ISU). The servers route and filter
all internet traffic.
"Our internet service
is unique in the way it preserves our Islamic values, filtering
the internet content to prevent the materials that contradict
with our beliefs or may influence our culture is one of ISU tasks,"
says the ISU site.
The researchers found that
many of the blocked sites were sexually explicit.
"It comes as no surprise
that the same countries that would be concerned about certain
books and newspapers crossing their borders would also be concerned
to find similar information crossing their borders electronically
over the internet," said Mr Edelman.
But sites about religion, humour
and music also figured prominently, among them film studio, Warner
Brothers.
"We weren't expecting
them to block big California media companies," he said.
"It's possible there is something particular offensive the
Saudi Government about a singer's lyrics or a musician hostile
to their politics."
Also blocked were most of the
major personal homepage domains, including geocities.com and
members.aol.com, as well as sites about women's rights, perhaps
unsurprising in a country where women are not even allowed to
drive.
Net controls
Anyone trying to get around
the censorship would have trouble, as the researchers found that
the Saudis also blocked proxy servers allowing a way around the
filtering restrictions.
"Even if you manage to
find a proxy server that works on one day, you never really know
if its going to be there the next day," said Mr Edelman.
"Perhaps more seriously,
since all accesses are logged, it's quite possible that the Saudi
Government could be watching what you are doing."
Saudi Arabia is one of dozens
of governments around the world trying to control what their
citizens see online.
But only a few, such as Vietnam,
China and the United Arab Emirates, actually attempt to filter
their entire national internet traffic.
"There was an instance
when it looked like the internet would be a free source of information,"
said Mr Edelman.
"At the present time,
there are plenty of forces trying to constraint who does what
on the internet. It is looking like the internet of tomorrow
might be very different from the internet of today."
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