Aussi disponible en français sous le titre: Le Contenu illégal et offensant sur l'autoroute de l'information
An earlier draft of this paper was distributed to experts within the federal government, many of whom provided extensive comments which were incorporated into the present version:
Justice Canada:
Criminal Law Policy Sector:
Elissa Lieff
Paul Saint-Denis
Human Rights Law Section:
Annemieke Holthuis
Michael Peirce
Isabelle Plante
Research & Statistics Sector:
George Kiefl
Heritage Canada:
Nathalie Bradbury (Broadcasting Policy)
Normand Duern (Human Rights)
Elizabeth Ide (Legal Counsel)
Marie-Josee Levesque (Arts Policy)
Mark O'Neill (Race Relations)
Dhiru Patel (Corporate Policy & Research)
Industry Canada:
Heather Black (Legal Counsel)
Jacques Drouin (Telecommunications Policy)
Peter Ferguson (Consumer Policy)
Luc Fournier (Communication Development Directorate)
Bill Graham (International Cooperation and Trade Directorate)
Andrew Siman (Communication Development Directorate)
I would not have had the benefit of many books, articles and legal documents without the efforts of Industry Canada's research librarians at Journal Tower South, among whom Estelle Lacroix merits special recognition.
My colleagues in the Technology Impact Assessment directorate have shared their time, advice and knowledge. Winnie Pietrykowski deserves my thanks for her invaluable editorial contribution. The division's Director, Helen McDonald, guided this project from the beginning -- it could not have been completed without her insight, conviction and counsel.
The penultimate draft was read by an additional two dozen individuals from across the country -- active on-line luminaries, university professors, lawyers, law enforcement officers and concerned citizens. I am grateful for their time and for the wisdom they offered. Whatever errors remain are mine.
The boundaries of offensive communication are a contested terrain. When we negotiate the parameters of offensive communication we are not only threading our way through a maze of competing interests þ we are weaving the very pattern of our social fabric. If we are obliged periodically to weigh our communication practices against the lofty standards of freedom of speech and responsibility it is because these practices are not merely the unleashing of words or pictures, but the planting of markers which define the limits of what is private and what is public.
The boundary between private and public is one threshold where acts of communication can become not only offensive but illegal. As David Price argues "conduct becomes prohibited when the threshold is crossed and private choice encroaches upon public domain" (Price 1979: 301). For example, inherent in our legal construction of defamation is the notion of publication. A privately held belief or opinion can become hate propaganda when it is publicly expressed. In the same manner, a person can legitimately look at a Playboy centrefold in the privacy of their home but to post the same pin-up on the wall at the office could count as sexual harassment.
Artists and writers in our society often grapple with the fact their works can be viewed as offensive and subjected to legal sanctions. D. H. Lawrence's book Lady Chatterley's Lover was subjected to extensive trials in Canada and abroad thirty years after its initial publication; more recent examples include obscenity charges against British Columbian punk band Dayglo Abortions, and the trial of Eli Langer whose paintings are said to contravene the child pornography statute. Obscenity charges, of course, are not simply levelled at art and high-brow literature: men's magazines, X-rated movies and gay sex manuals have also been targets.
One of the most delicate balancing acts in a democratic society is to safeguard freedom of expression while minimizing the very real risks posed by communication which harms or threatens to harm. Even if the condition of harm serves to tip the scales from communication which is permissible to that which is illicit, there remains a turbulent domain of contested content. What one group or individual might regard as offensive communication might be considered by other groups or individuals to be an article of faith, a philosophical conviction, a political opinion, or even an innocuous form of entertainment. When controversies erupt, there are two fundamental judicial structures which determine the outcome: the Canadian Charter of Rights and Freedoms and the Criminal Code.
Section one of the Canadian Charter of Rights & Freedoms "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Section 2(b) guarantees "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication."
The freedoms specified in Section 2(b) of the Charter are not unlimited: certain acts of communication are regarded as illegal in Canada. This is because Section 1 guarantees rights "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (emphasis added). To the extent that courts hold Criminal Code provisions to be reasonable limits, the government may restrict freedom of expression in certain well-defined areas. In particular, the Criminal Code details under what circumstances communicative practices or their products can be subject to criminal prosecution including: obscenity (Section 163), child pornography (Section 163.1), hate propaganda (Sections 318-320) and defamatory libel (s.297-317).
In the twentieth century, the debate over offensive communications has been conducted with respect to paintings, books, sound recordings and movies. With increasing urgency, it is being framed in terms of the role played by computers, networks, and electronic media. The purpose of this document is to assess to what extent the new communications technologies are altering the parameters of what we define as offensive communications, and how well our existing legal and societal responses to offensive content work in a digital environment. The intent is to take stock of what we know, identify areas for further research, and to provide a useful starting point for debate on what Canadian public policy should be with respect to offensive content on the information highway.
This paper focuses on offensive communication that enters the realm of illegality, in particular, the following four areas:
(1) obscenity and child pornography;
(2) sexual harassment (including obscene e-mail, "net-stalking", and display of pornographic material in a public place);
(3) hate propaganda; and
(4) defamation and libel.
One of the main reasons for revisiting the question of illegal communications is that a variety of new media are becoming embroiled in controversy. It is thus necessary to understand the nature of these new technologies and the communication practices that have emerged with them.
Offensive material in the form of texts, programs, images, or sound files can be: (1) stored on floppy disks, hard disks, or CD-ROM disks (an acronym for Compact Disk: Read Only Memory) for use in individual computers, and/or (2) communicated through such computer networks as the Internet, USENET and computer bulletin board systems (BBS). The rest of this section explains how these differ in ownership, administration and control.
Anyone with a computer and a modem connected to the public telephone system can access a computer bulletin board system (BBS) in Canada or anywhere in the world. But perhaps more significantly, using widely available software anyone with a computer and a modem can establish their own BBS. BBS software is available commercially at a moderate price. More importantly, on many of the thousands of computer bulletin boards in North America, BBS software can be freely and legally obtained. Some BBS software is "freeware" meaning that one can use it at no charge. Other BBS software is "shareware" meaning that one can test the software for a trial period, following which one should purchase a user's license from the owner of the copyright.
There are a wide range of computer bulletin boards in operation, differing in size, purpose, and user base. A small percentage are clearly commercial activities with subscriptions and other user fees. A number of large companies, particularly in the computer software field, have set up free bulletin boards as a means of keeping in touch with their customers. Other companies establish private bulletin boards to permit the exchange of information among employees. But the vast majority of bulletin boards are launched by hobbyists. Generally they are free or if they charge a subscription fee it is minimal (for example $30 per year). Most of these BBSs have a few hundred subscribers, often less. [End 1] They provide a "place" where people can communicate on topics of common interest or exchange programs and text files. Some have likened the communication which transpires on a bulletin board to conversations taking place in a pub or a private club, and compare file exchanges to transactions in a public library, a bookstore, or at a garage sale.
The number of computer bulletin boards is growing steadily. One indication of the vitality of this grassroots movement is the FidoNet. In June 1984, FidoNet consisted of two bulletin boards; by August 1984 it had grown to almost 30; eight years later it was a world-wide self-regulating amateur network comprising some 15,649 bulletin boards. But FidoNet is merely one fraction of the BBS community -- estimates suggest FidoNet accounts for only 27% of the public dial-up bulletin boards in the United States. In July 1992 there were over 40,000 bulletin boards in the U.S. and 66,000 worldwide (Boardwatch October 1992: 61).
Bulletin boards are very easy to set up and virtually impossible to control: any phone line connects a BBS to the rest of the world. This is their greatest strength as a democratizing form of communication but also the heart of the problem when something begins to go wrong. If recent media concerns are any indication, a handful of bulletin boards are not as socially responsible as their counterparts.
The Internet started as a U.S. military computer network designed to connect researchers scattered across the continent. As it evolved, however, the Internet began to connect thousands and thousands of networks. Soon it was no longer researchers under military contract but researchers in every academic field and not just military contractors but all sorts of companies. Now, the Internet has commercial offshoots and publicly accessible sites (FreeNets and other community-based networks).
The word "Internet" covers a bewildering variety of services, technologies, and administrative arrangements. Among the distinct services available on the Internet, the most familiar is probably e- mail. In addition, one can access programs available on a distant computer and interact with these programs (give them commands and read their output) by using telnet. One can also send files to or retrieve files from a remote host by using ftp (i.e., "file transfer protocol"; some host sites permit this to be done "anonymously"). There are also a variety of automated tools for browsing and searching directories (e.g., archie, gopher, WAIS). World-Wide Web sites provide access to hypertext documents, allowing you to follow a link þ a word, concept or image þ from one place in the file to another point either in that file or some other document that could be stored on the same computer or on a machine halfway around the world. At the cutting edge of Internet services, one can experiment with video-conferencing using Cornell University's free CU-SeeMe program for Windows and Macintosh platforms. One of the most widely used services, available on millions of Internet host computers, is USENET: a valuable source of information where some people exchange technical data and others engage in scientific, religious or political debate. USENET is a heady mix of news, gossip, humour and passionate opinions.
The Internet grew through the co-operative efforts of government, academia and large corporations. The infrastructure expanded: the number of sites increased, and the speed or capacity of the lines connecting the sites making up the backbone grew. By November 1992 over a billion packets of digital bits were being exchanged each day on the Internet and traffic was growing at the rate of 11 per cent per month (Gilster 1993: 16). This means that millions of people are communicating via e-mail and transmitting electronic files to each other.
Today, school children are being connected to this immense computer network. What is sometimes forgotten is that it was never imagined that the Internet would become a place where children would learn and play. For 25 years the Internet had developed a culture based on those who used it: soldiers and other military personnel, computer scientists, aerospace engineers, and a variety of university researchers. This was a world which was uncompromisingly adult, highly educated, and almost exclusively male. It is perhaps not surprising that a culture clash is now taking place þ or more accurately, a series of distinct cultural clashes. It is not just school children who are being connected to the Net but diverse social groups þ small businesses seeking new entrepreneurial opportunities, not-for- profit and philanthropic organizations and community groups seeking broader access to information resources.
If we are to comprehend and mediate these clashes, we must understand that the Internet has never been a single, monolithic entity but a patchwork of administrative bodies with unique sources of ownership, different organizational controls and distinctive mandates. The Internet began as a military research community and became a plurality of research communities with different agendas. It is now undergoing another transformation as various other occupational and organizational groups become connected, many under the broad rubric of "commercial users".
USENET is a cooperative e-mail network which permits millions of people to communicate with each other on thousands of topics (each topic called a "newsgroup"). One observer has described it as "a bunch of bits, lots of bits, millions of bits each day full of nonsense, argument, reasonable technical discussion, scholarly analysis, and naughty pictures" (Vielmetti 1991/1994).
It persists because people like to read and/or write "articles" on various topics. It is made possible by a set of protocols for disseminating, storing and reading news and a suite of computer programs (newsreaders and newsservers) that implement the protocols. The computers on which these programs run are owned by a wide range of entities: universities and other institutions, government departments, companies both multinational and minuscule, as well as thousands of private citizens in dozens of countries.
One should be cautious in making assumptions about the status, behaviour, or control mechanisms of any USENET host-site þ it may belong to an individual or a private, public or non-profit organization, and the community standards in that host-site's particular corner of the globe may vary dramatically from our own. Nor is there a distinct administrative body with authority to determine who gets what information or who can post articles (Salzenberg, Spafford & Moraes 1994). Rather, USENET is a set of communication practices that has evolved over the last decade or so within a community of computer users (really a multiplicity of communities) with access to distributed resources.
USENET is not the same as the Internet. The Internet carries many different kinds of traffic and supports many different kinds of services: only one of these is USENET. Conversely, USENET traffic is disseminated through a number of other networks which do not belong to the Internet proper. USENET is a feed-forward network in which a host-site receives articles from its neighbour and may subsequently re-transmit those articles to another neighbour further "downstream". It is not uncommon to get one set of newsgroups from one newsserver and get a different set from a second newsserver. The fact that a newsserver gets its news from another newsserver does not imply a formal centralized structure: often it is nothing more than bilateral arrangements between the system operators (sysops) of the respective machines. An increasing number of adaptations are also beginning to emerge. Some transmissions are based on cost-recovery schemes and a variety of for-profit transactions are available. For example, a bulletin board system does not need to receive incoming USENET feed via telephone lines connected to a distant computer on the Internet. The "newsdump" is now being offered as a satellite service which can be received on a small satellite dish for a monthly subscription.
Although not a centralized structure, there are a variety of checks and balances in place. USENET experience suggests that with the high amount of two-way communicating going on, there is bound to be a certain degree of disorganization, repetition, off-topic chatter and even occasional rudeness resulting from completely unregulated postings. Originally, all USENET newsgroups simply contained whatever postings netdwellers hammered out on their keyboards. But in 1984, the first moderated group appeared, initially to isolate administrative announcements from opinion and gossip. This not only gave rise to the first glimpse of hierarchy within USENET (the creation of newsgroups with the prefix net or mod) but established a tradition which continues to this day.
When a newsgroup is moderated it generally means that someone reads all the articles posted to the newsgroup and then decides which ones should be distributed to other people. Some may regard this as being equivalent to an editor at a newspaper or periodical; others might think of it as the Speaker of the House; other metaphors are possible. Whatever one may think of the benefits and drawbacks of moderated newsgroups, the very existence of the two broad classes þ moderated and unmoderated þ requires policy developers and legislators to weigh different sets of considerations regarding responsibility and liability when making decisions which have an impact on USENET.
In 1986, seven official hierarchies were created to bring some order to the proliferation of newsgroups: [End 2]
comp Topics of interest to computer professionals and hobbyists, including computer science and information on hardware and software systems.The newsgroups in the seven official hierarchies are created on the basis of voting by USENET readers. This people's press is predicated on participatory democracy. There are three main phases in the creation of a USENET group belonging to the seven official hierarchies: (a) the discussion; (b) the vote; and (c) the result. There is also a responsibility for host sites to carry newsgroups in the principal hierarchies (soc and talk groups are discretionary).
sci Discussions marked by special and usually practical knowledge, relating to research in or application of the established sciences.
news Groups concerned with the news network and software themselves.
misc Groups addressing themes not easily classified under any of the other headings or which incorporate themes from multiple categories.
soc Groups primarily addressing social issues and socializing.
talk Groups largely debate-oriented and tending to feature long discussions without resolution and without appreciable amounts of generally useful information.
rec Groups oriented towards the arts, hobbies and recreational activities. [Spafford 1993]
There is, however, another classification which has emerged that is carried on a completely voluntary basis: the alt hierarchy. The alt hierarchy arose as a response to the official hierarchy of newsgroups. Anyone can create an alt group þ no voting is required þ and any host can carry or refuse to carry any alt group. There are more than a thousand alt newsgroups: some are devoted to serious discussion, some are very technical, some are humorous, and a few are outrageous.
The structure of hierarchies can be regarded as analogous in some respects to the tiered system of basic, extended basic and pay-TV in the cable television market -- with the crucial exception, of course, that there is no central agency such as the CRTC regulating what channels belong to what tiers on local systems ... and instead of a few dozen channels there are a few thousand. Those who use the medium, rather than some central agency, decide whether a newsgroup will belong to the official hierarchy (for example, a newsgroup could start life as an alt group and become one of the official comp groups as was the case with comp.society.cu-digest). Within these parameters, those who provide the infrastructure for the medium (i.e., those who provide the host machines) choose what they will carry.
The definition of pornography is notoriously difficult, even though most people in our society have some sense of what the word means for them. For purposes of discussion (but not the law), Canada's Special Committee on Pornography and Prostitution (the Fraser Committee) proposed that: "... a work is pornographic if it combines the two features of explicit sexual representations (content) and an apparent or purported intention to arouse its audience sexually" (Government of Canada, 1985: 53-54). Canadian criminal law does not define pornography but is concerned instead with obscenity and child pornography. Section 163 of the Criminal Code states that "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty, and violence, shall be deemed to be obscene". Section 163.1, proclaimed August 1, 1993, pertains to representations of "a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity". With respect to obscenity, distribution is an offence but not possession. With regard to child pornography, production, distribution and possession are all indictable offences.
There are many sexually explicit materials which most people would not regard as pornographic þ medical documents such as sex therapy manuals, psychiatric case studies, gynaecology text books and so on. Many other sexually explicit materials, perhaps the largest portion, are legal -- even though they are referred to as "pornography" in everyday speech. Pornographic material becomes illegal only when it falls under the provisions for obscenity or child pornography. In line with the widely accepted sense of "pornography" the legal notion of "obscenity" pertains to sexually explicit works. However, for a book, magazine, or video to be obscene the exploitation of sex in that work must not only be a dominant characteristic but such exploitation must be "undue". With the decision in the 1992 case of R. v. Butler, the Canadian Supreme Court clarified this notion of the "undue exploitation of sex":
... the portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.
If material is not obscene under this framework, it does not become so by reason of the person to whom it is or may be shown or exposed nor by reason of the place or manner in which it is shown. ([1992] 1 S.C.R., 485)
The determination that "Explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex" indicates that much of what could be called pornography is perfectly legal in Canada.
Sexually explicit material is available in a number of formats. The so-called adult entertainment industry includes live entertainment ("exotic dancers") and adult theatres which concentrate exclusively on sexually-explicit feature films (often called X-rated pornographic movies). One of the most widely available forms of legal pornography are adult books and magazines. Magazines with the most extensive circulation þ such as Penthouse, Playboy, Playgirl, and Hustler þ are obtainable not only in magazine stores and newsstands but also in thousands of neighbourhood convenience stores.
To provide a context for the exploration of computer-based pornography, this next section explores the availability of the following:
(1) Adult magazines and books(2) Adult videos
(3) Pay-TV and satellite delivery of adult movies
(4) 976 telephone sex
A large number of bookstores, including the major chains such as Coles and W. H. Smith, carry at least a small selection of adult books. Often these appear in the fiction racks under "Anonymous" and range from Victorian erotica such as My Secret Life and Man With a Maid to contemporary novels devoted to sexual exploits. A curious eye scanning the shelves in a bookstore's literature section could easily discover publications which could be regarded as legally available pornography þ the works of the Marquis de Sade come to mind as an obvious example. Certain titles in the "true crime" genre, particularly those recounting the violent acts of sexual sadists, contain chapters that are sometimes more lurid than such controversial novels as American Psycho.
"Sex shops" can be found in cities across the country which, in addition to "marital aids", often sell a wide range of magazines, as well as paperback books of erotic fiction. Unlike the mass market magazines such as Penthouse or Playboy, the magazines in sex shops have little commercial advertising; this, in addition to their smaller circulation, contributes to their higher prices. The magazines tend to be devoted to particular sexual practices or particular body types and it is probable that the majority of these are imported from the United States.
Prior to the Committee on Sexual Offences Against Children and Youths (Badgley Committee) which submitted its report to the federal government in 1984, there was very little comprehensive knowledge of the distribution of pornographic magazines in Canada. The Badgley Committee reported that in 1980, the 5,981,400 copies of Penthouse sold in Canada garnered revenues of $16,448,850. In the same year, Playboy's Canadian revenues equalled $9,554,050 for 3,474,200 copies in circulation (Badgley Committee 1984: 1252). These two magazines accounted for 62.8% of the $41,389,264 in revenue registered by the Audit Bureau of Circulation's 1980 figures for total sales of audited U.S. adult magazines in circulation in Canada. The Audit Bureau of Circulation only reports magazine and newspaper data from its members. Consequently, these figures do not represent the total Canadian domestic consumption of magazine-based pornography. [End 3] Based on the National Accessibility Survey, the Badgley Committee stated that in 1982-83, 540 different titles of pornographic magazines were reported to be in distribution in Canada (Badgley Committee 1984: 1245-1249). There is a very high probability that the 12 titles included in the Audit Bureau of Circulation's 1980 figures actually represent the largest share of domestic revenues for pornographic magazines. Very few of the titles would have 12 issues per year (many exist for only one issue) and very few if any of these 500 publications would reach the annual copy sales of the smallest of the twelve audited magazines. [End 4]
What is rather striking is that a decade later the Canadian circulation of glossy mainstream adult magazines, such as Penthouse and Playboy, had declined substantially. Penthouse saw the most dramatic decrease, plummeting from almost six million copies in 1980 down to 976,752 in 1992 and an estimated 930,384 copies in 1993. Playboy fell from an annual circulation of almost three and a half million to 1,544,688 in 1992 and an estimated 1,463,844 copies in 1993. Comparison with the U.S. circulation of these two magazines indicates that between 1988 and 1992, Playboy's paid circulation fluctuated year to year but was relatively stable. On the other hand, Penthouse experienced rapid declines: the magazine's circulation having been almost cut in half between 1988 and 1992.
This preliminary evidence contradicts the popular conception that the amount of pornography in our society continues to increase. A variety of hypotheses could be investigated to assess what is actually happening. For instance, it could be that Penthouse and Playboy have lost market share to other mainstream adult magazines such as Hustler; that is, magazines which do not rely on traditional advertisers (clothing, liquor, cigarettes, etc.) but are supported by advertisers in the adult entertainment industry (phone sex, X-rated videos, etc.). As such, these magazines have no reason to belong to the Audit Bureau of Circulation. Another hypothesis is that Penthouse and Playboy have lost market share to the adult magazines sold in sex shops. This would indicate a significant shift in consumer purchase patterns. Or it could be the case that adult magazine purchases as a whole have genuinely declined over the past decade. To some extent this could be due to changing attitudes. Alternatively, and what might be the most plausible explanation, is that this is a clear case of media substitution. Substantial portions of the market that were previously served by adult magazines have shifted to adult video.
In 1983, only 6% of Canadian households had a videocassette recorder; by 1993, 77% of Canadian homes had at least one VCR and 64% had two. It is this level of consumer preference that makes video sales and rental such a significant component in today's film distribution schemes.
Adult videos are available for sale or rental in virtually every town and city in Canada in one of three sites: (a) adult video stores where the primary business is adult video rental; (b) sex shops that sell adult videos in addition to a wide range of "marital aids" and other commodities; and (c) "mainstream" video stores where only one portion of their stock is adult-oriented X-rated videos. A number of municipalities have recently introduced municipal by-laws to control the number of adult video stores or restrict their location (Jorgensen 1994; Prentice 1994; Sharpe 1994).
While it is likely that the majority of these outlets are independent stores, there are a number of chains. The largest Canadian chain is thought to be Adults Only Video. Started in 1986 in Saskatoon, Saskatchewan, the chain now has approximately 500 employees, annual revenues approaching $25 million, and about 80 stores (Jenish 1993: 52-56). Although the chain has outlets in Saskatchewan, Alberta, British Columbia and Manitoba, the majority of the stores (60 of them) are located in Ontario (the first was established in late 1990).
There is purportedly very little adult video production based in Canada:
Distributors, retailers and police insist that there is no professional adult-film production in Canada, and that most of the videos come from the United States or Europe. According to some estimates, the American industry, which is composed of about 70 companies, churns out as many as 100 pornographic movies a week. (Jenish 1993: 53)
The claim that no adult videos are professionally produced in Canada is perhaps overstated but domestic production does appear to be minimal.
It is difficult to determine how many adult video titles are currently in circulation in Canada. The 1986 revised and updated edition of Robert H. Rimmer's The X-Rated Video Guide, focusing on X-rated films produced between 1970 and 1985, rates over 1,300 films on videotape and provides a supplemental list of 2,840 more. The Ontario Film Review Board reported (personal communication) that between April 1, 1993 and March 31, 1994 it classified 2,846 videotapes; of these 1,892 (66.5%) were adult sex films. The fact that 1,892 adult sex films were rated in one year suggests that there must be a fairly strong consumer demand.
Pay-TV and Satellite Delivery of Adult Movies
Although video cassette rental is probably the primary consumer source for adult movies, cable television and satellite TV are also delivery mechanisms. Although initially many of the adult films shown on pay-per-view cable channels could be classed as "softcore" pornography, [End 5] there now appears to be little difference between what is on cable and the material available in adult video stores.
In 1968, only 13% of Canadian homes subscribed to cable television; by 1992, 72% of Canadian homes subscribed to the basic tier of cable television services and about a third of these were willing to pay extra for the discretionary services. Although films featuring "nudity and sexual situations" are sometimes shown on late night movie channels (e.g., on Québec's Quatre Saisons), softcore and hardcore adult material delivered via cable has two main sources. First, in an occasional or sporadic fashion, softcore material surfaces on discretionary services (e.g., The Movie Network appears to schedule one or two softcore films per month). Second, both softcore and hardcore movies appear on pay-per-view where there is a regular slate of four or five adult movies per month. Pay-per-view is available on certain cable systems, providing the subscriber has rented the sort of decoding unit which is also used for descrambling other discretionary services. The pay-per-view transaction is made over the telephone; some cable companies ask for a credit card number for a first-time order.
The Ottawa-based company XTC-COM operates Exxxtasy TV, a hard-core pornographic video transmission delivered via satellite. XTC-COM initially intended to offer two kinds of service: (1) a scrambled service to bars, clubs and similar public establishments in Canada; and (2) a Direct-To- Home (DTH) scrambled satellite service. However, they were advised in November 1993 by the CRTC that a license was required for a Canadian DTH service. An article in The Ottawa Citizen states:
From its suburban offices not far from the Herongate Mall, it [XTC-COM] serves 18,000 subscribers across the U.S. Clients pay as much as $220 U.S. per year for eight hours a day of triple-X-rated videos... Exxxtasy TV has also been sold to nine strip clubs across Canada, says its general manager, Richard Latham, but "99.9 per cent of our business is in the U.S." (Atherton; January 31, 1994)
Currently there appears to be no hard-core pornographic video service using satellite to target the Canadian residential market.
Anyone who watches television after the eleven o'clock news has probably seen the advertisements for 976 telephone sex services; others may have seen advertising in newspapers and certain magazines. Reliable data on the size of this market, however, are not readily available. In CRTC Telecom Decision 94-4 (Revision to 900 Service) it was stated that Bell Canada (or any common carrier) cannot deprive these information services of bandwidth even if they disapprove of the content. A common carrier, however, may refrain from providing them with automatic accounting services (thereby ensuring that companies must bill their customers via credit cards).
The pervasiveness of sexually explicit products and practices in Canada indicates that a diverse range of pornographic material is already being tolerated in our society. Given that pornographic books and magazines have been available for at least two centuries and that pornographic films and videos have been available for a number of decades, it is not surprising that we already have various laws, procedures, and practices for handling such products and activities. Legal pornography is a fairly large market; computer porn is simply the latest incarnation and currently represents only a small fraction of the pornography market.
"Computer porn" includes pornographic stories or text files, sexually explicit images, and "adult" chat lines. Instances of the first two categories can be found on computer bulletin boards, USENET and CD- ROMs. Adult chat lines, where individuals can see each other's responses typed in real time, are a service offered by certain adult bulletin boards. Although there is an Internet chat system called Internet Relay Chat (IRC) it is not exclusively devoted to sexual conversations. Some of the Internet accessible MUDs (Multi-User Dungeons, Domains or Dimensions) [End 6] also have a strong sexual fantasy component (Bartle 1990; Dibble 1993).
The bulk of the sexually-explicit material on bulletin boards or on USENET is not illegal þ it is not obscene under Canadian law. Much of this material is similar to what is found in adult magazines available at the local corner store or "Triple-X" videos in adult video outlets. It is not surprising that there is very little original "computer porn" þ most of it is digitally scanned from traditional media. [End 7] However, some image files on some BBSs could be classified as obscene according to the Criminal Code. The difficulty is in determining which BBSs have material which is obscene and not simply sexually-explicit.
USENET and the alt.sex Hierarchy
With its roots in the academic research community, USENET has disseminated information on every conceivable topic for almost a decade. USENET communications were assumed to be conducted by and for adults. The only challenge to this assumption occurred so periodically that it had assumed an almost ritualized cadence: each fall, with the influx of first year college and university students there was a noticeable escalation in the frequency of both posting and flaming (composing and posting provocative or insulting messages). As cycles go, by each spring, the new age cohort had learned the explicit and implicit rules of conduct, curbing the most flagrant acts of irresponsibility. But, as the history of the creation of the alt hierarchy indicates, even among adults there are serious disagreements over the propriety of certain communications þ especially when the topics are sex, drugs, and rock'n'roll. [End 8] Not surprisingly, the most controversial of all USENET groups, outside of the cold fusion debates, are those devoted to sex.
Of the 4,937 newsgroups available as of April 18, 1994, only 17 carry sexually explicit material (Mehta & Plaza 1994). The alt.sex hierarchy contains a wide range of topics with names including alt.sex, alt.sex.bestiality, alt.sex.erotica, alt.sex.fetish, alt.sex.stories, alt.sex.motss ("motss" is the acronym for "members of the same sex") and alt.sex.pictures. Newsgroups range from the tongue- in-cheek alt.sexy.bald.captains (started by fans of the Jean-Luc Picard character in Star Trek: The Next Generation) to such serious support groups as alt.sexual.abuse.recovery. Depending on the community constituting a newsgroup, the e-mail messages exchanged can be heart-rending personal experiences, advice drawn from medical texts or sex therapy manuals, erotic fiction, or fantasies both commonplace and bizarre. With regard to the newsgroups which centre on sex as a recreational pursuit or creative writing outlet, the vast majority of the messages are of the sort that could be found at the neighbourhood magazine rack in periodicals such as Penthouse Forum. Contributors to some of these newsgroups occasionally post images but, generally speaking, digitized photographs, drawings, and cartoons are relegated to groups such as alt.binaries.pictures.erotica where pictures, not words, are the focus of attention.
The exchange of pornographic photographs and sexually explicit images is apparently more contentious than literary renditions of the most scandalous sexual escapades. The famous example that prompted considerable outrage -- after it was cited in almost every Canadian newspaper article on USENET pornography in early July 1992 -- was described by the Vancouver Province as a picture of "a naked woman hanging by her neck from a rope. Her mouth is gaping as if she's screaming" (July 3, 1992, A46). [End 9] There were very few journalistic accounts which sought to dispel the troubling suggestion of misogyny. The Globe and Mail, however, did print an article suggesting that rather than an act of violence against women, the depictions presented in alt.sex.bondage are shared among an often misunderstood sexual minority. [End 10]
Another misconception conveyed by many of the newspaper accounts was that digital images distributed over USENET just "popped up" in plain view on computer screens. [End 11] This is not possible. USENET transmits e-mail in ASCII format (the standard alpha-numeric character set) and many of the computers through which the e-mail is posted and routed impose limits on the size of e-mail messages (an upper limit of 64 kilobytes is common). Digital images conflict with both of these characteristics. They are binary files and not ASCII text files, and even if the data are compressed the file sizes often exceed the maximum size limit. Consequently, images posted to USENET groups use a program such as uuencode that converts the binary file into a text file. Thus the e-mail message which appears on screen when one accesses the newsgroup looks like a string of seemingly random alphanumeric characters. Moreover, given the e-mail size restriction, the image is almost always broken up into multiple parts. The individual postings must be recombined into a single, correctly ordered file and then transformed into a binary file using the program uudecode. But even then the photograph or drawing will not pop up on the screen automatically. The user must employ a suitable image viewer þ a software program that is able to decode that particular graphic format.
In a similar vein, USENET readers are rarely taken by surprise by sexually explicit images. The variety of such images has led to the creation of a plethora of special interests, and thus in alt.binaries.pictures.erotica.female one would not encounter photographs depicting male homosexuals. The label of the newsgroup alt.binaries.pictures.tasteless is an explicit warning that the content is probably going to be offensive according to some criteria or other. The decoded image is as likely to be open heart surgery, a Vietnam combat photograph, a picture of a couple engaged in bizarre sexual activity, or a series of images featuring two blue fuzzy stuffed toys posed in ludicrous positions -- the subject listing or one-line description may even inform you ahead of time which of these depictions one will encounter. If you choose to ignore the labelling, you are knowingly setting out to be shocked.
The majority of the images transmitted over USENET are of nudes (male or female) and of couples (heterosexual or homosexual) engaged in "explicit sex that is not violent and neither degrading nor dehumanizing" (to borrow the Supreme Court's phrase). A recent content analysis of pornographic images available on USENET suggests that between 10% and 15% of a randomly selected sample may contravene obscenity provisions (Mehta & Plaza 1994: 10). Although research findings are still preliminary, it appears that the bulk of the traffic in the newsgroups devoted to the exchange of digital images in the alt.sex hierarchy and the various alt.binaries.pictures.erotica newsgroups is perfectly legal according to the obscenity provisions in the Criminal Code.
On the other hand, it is quite probable that some of the occasional postings of pictures depicting bondage, sadomasochism, or bestiality would be regarded as obscene under Canadian law. The matter, however, is not entirely straightforward. Madonna's recent book of photographs, Sex, included a number of sadomasochistic images -- and was available in Canada. Images of sex and violence more extreme than many in alt.sex.bondage appear in a number of mainstream Hollywood movies, particularly the horror movies fashionable in the early 1980s and the "erotic thriller" which became popular in the early 1990s. When a potentially obscene image is posted, determining the most appropriate course of action can be difficult, particularly for those who have something to lose (i.e., those who are providing the host machines).
Periodically, individuals who are regular participants in USENET discussions express their concerns about censorship or offensive material (for example David Mason's open letter to the online community, Nov. 23, 1993 in can.general and alt.censorship). Now and then, institutions which operate USENET host machines also respond to the incessant flow of newsgroup postings in the more controversial newsgroups -- some decide, for one reason or another, to refrain from carrying certain newsgroups. On rare occasions, one gets the impression of a chain reaction in which several institutions all make decisions about USENET at the same time. In Canada, the spring and summer of 1992 was one of those rare occurrences. Alerted to the alt.sex newsgroups, a dozen universities across the country took action and came under the media spotlight.
The diversity of responses within the Canadian academic community indicates the bewildering range of issues which erupt when access to the flow of messages in these USENET groups is curtailed:
(1) some universities prevented access to certain alt.sex USENET groups or refrained from receiving the newsfeed from those groups;
(2) some universities refused to cut the newsfeed and resisted preventing access, despite pressure from local media and some women's groups;
(3) some universities shut off certain newsgroups deemed to be offensive but, after following some organizational process, restored them within a few months.
The alt.sex issue raises a profusion of problems including the undetermined liability of USENET host sites, the multi-faceted jurisdictional quandary of cross-border e-mail flows, the apparent pendulum swing on tolerance vis-à-vis freedom of expression in the academic environment, and the relation between pornographic newsgroups and sexual harassment. In the rush to tackle these monumental questions attention is perhaps too easily distracted from the most conspicuous and banal observation: the very divergence in the range of responses.
Surveying the newspaper articles, USENET discussions, and scholarly papers reveals there has been surprisingly little effort spent to determine what happened and whether or not there are lessons to be learned in how it happened at different places. If details are provided they almost always refer to the local case and assumptions are generalized to other incidents in the rest of the country. Was this a unitary phenomenon that erupted spontaneously in different locations or was this a chain reaction? Is what transpired at different universities the result of unique circumstances or are there structural similarities? Why does it appear inflammatory to suggest that this was a manufactured moral panic?
The penchant to jump to prescriptive rulings following the events of 1992 may serve to replicate the conditions that aggravated the situation in the first place. Haste clouds crucial components in the delicate balance between conflicting rights and responsibilities. In the case of the alt.sex hierarchy the processes giving rise to the predicaments were obscured. More importantly, little attention was paid to conflict-resolution mechanisms, which institutionalize the process of negotiating resolutions within the limits of a tolerant, democratic society. This is unfortunate -- if anything seems inevitable, it is that this problem will resurface again.
One of the institutions that initially banned newsgroups in the summer of 1992 was the University of British Columbia. This initial response, however, was balanced by a review process when the university created a Task Force to assess the situation. Among the "Fundamental Principles" contained in its final report were the following:
5. The Criminal Code of Canada, the Civil Rights Protection Act, the B.C. Human Rights Act, and the UBC Sexual Harassment Policy all apply to the use of information technology at the University, as they do to other aspects of life here, to limit completely free communication in order that the best possible environment be preserved.
7. The University should not ban the electronic communication between willing participants of messages and images which others might find offensive, since no such ban applies to other forms of communication.
8. Those associated with the University should be educated about the laws and policies applicable to this area, as well as about the need for everyone at UBC to treat one another with respect. ("Background Material: History". Report of the Task Force.... December 1992. University of British Columbia. )
The thinking behind these principles and the procedures implementing them may prove beneficial to other institutions that must also grapple with the problems of offensive communication over computer networks. The UBC Task Force acknowledges that a broad range of legal measures and local policies are already in place to ensure that public communication is democratic and equitable. They also affirm that existing laws and policies can be applied to computer-mediated communication in order to ensure that the latter is accorded the same level of freedom and responsibility as traditional forms of communication. The Task Force stressed the importance of educating users and administrators alike about the relevant laws and policies so that computer-mediated communication could be conducted responsibly.
A number of "Specific Recommendations" put forward by the Task Force also warrant attention, including the following:
2. The University should provide access to all newsgroups and, more broadly, the Internet as a whole, for all members of the University community. Other institutions, such as schools, which access the Internet through UBC accounts, should be informed of the possible existence of material that is inappropriate for their users. Such institutions should make their own policies regulating access to such material.
3. The University should make it clear that the user bears the primary responsibility for the material he or she chooses to access, send, or display on the network and other computing systems. ("Background Material: History". Report of the Task Force.... University of British Columbia. December 1992) [End 12]
The recommendations about where responsibility should reside are significant and merit careful assessment by policy makers and legal counsel.
The situation with respect to USENET newsgroups continues to change, even within the same institution. For example, in 1988, following a controversy over offensive jokes posted to rec.humor.funny, the University of Waterloo struck a committee to assess the situation. On May 30, 1991, the report of the Advisory Committee on Network News restored all banned newsgroups and designated a liaison person to deal with complaints arising from e-mail and news postings. In February 5, 1994 the Globe and Mail reported that the University of Waterloo, following recommendations from an ethics committee, had just banned five newsgroups (for a discussion see Rosenberg 1994: 5-7).
A number of universities re-assessed their USENET status following Judge Francis Kovacs' publication ban regarding the trial of Karla Homolka. A newsgroup alt.fan.karla-homolka was created on July 14, 1993. The newsgroup was primarily filled with rumours, gossip and hearsay although a handful of newspaper articles were re-typed and posted (such as one from The Washington Post which was itself a reprint of an article in The Buffalo News and The Detroit Free Press). On November 1993, under order of McGill Vice-President for Planning and Resources, Francois Tavenas, McGill University became the first university to suspend the alt.fan.karla-homolka newsgroup. Within a month 15 Canadian universities, the National Capital FreeNet, and one American university discontinued the newsgroup (Rosenberg 1994: 8-13; Shade 1994). What is particularly deserving of further study with respect to these incidents is the relation between the administrative responses to the USENET newsgroup and the legal opinions on the obligations of university libraries with respect to prohibited newspaper articles (whether in paper form or microfilm).
The wide range of responses to the alt.sex newsgroups suggests, among other things, an uncertainty with respect to Canadian law concerning obscenity. One of the clear tasks this study must address if policies are to be formulated for dealing with obscenity is not only the letter of the law in the Criminal Code but, perhaps more importantly, how the law is interpreted in practice (the rulings in actual cases and the juridical rationale for specific decisions). A preliminary attempt to meet this need will be undertaken in this paper in the section Dealing with Obscenity.
File Archives and chat lines: the computer bulletin board system (BBS)
It is difficult to ascertain how many bulletin boards have pornographic material available on-line. One indicator can be found in a recent survey in Boardwatch magazine which garnered 11,512 responses (86% male) to a poll on favourite bulletin boards. If one scans the resulting list of the "Top 100" bulletin boards, about 25% fall into the category of having sexually-oriented material (adult chat lines, text files, images, games or interactive programs).
Digitized images are probably the most pervasive form of pornography on bulletin boards. There are four principal means by which bulletin boards acquire images:
(1) the BBS sysop (systems operator) can purchase commercial collections on CD-ROM (a single CD-ROM disk can hold thousands of photographs);
(2) BBS members can upload files to the BBS (sometimes in exchange for such privileges as longer access time, increased download ratio, etc.);
(3) the sysop can download images from other bulletin boards and post them on his or her own board (sometimes regarded as "raiding" the competition, other times thought to aid members by bearing the cost of long-distance charges);
(4) the sysop produces the images himself or herself by scanning already published magazine images or "frame-grabbing" from X-rated videos (both sources of copyright violation) or by scanning amateur or professional photography to which the rights have been acquired.
While the vast majority of the images are no different than what is available commercially at sex shops or adult video stores, any of these sources could provide material which is obscene under Canadian law. Being able to exclude obscene material þ or, if obscene material surfaces, determining the responsibility for the source þ is difficult. The bulletin board system operator may only have practical control over materials he or she personally downloads or produces. Given that a commercially purchased CD-ROM has thousands of images, it is conceivable that even if the sysop is knowledgeable enough to hazard a guess as to what is and is not obscene, not every image will be previewed before going on-line. For example, a package of three CD-ROMS retailing for $US 69 is advertised as containing 1,892 Megabytes with over 16,180 files. It could be that all of the images are perfectly legal or that a few dozen are questionable and a handful are clearly illegal. Prior to purchase, the sysop has no way of knowing. Moreover, the CD-ROM could have been made in Europe, America, or Japan where standards of permissable sexual material may be different. One may contend that it is the sysop's responsibility to determine the nature of the material prior to putting the collection on-line, but the sheer volume of material that this storage medium permits may push the limits of practicality.
Another source of vulnerability is member uploads. The issue is not where the members are calling from (out of province or out of the country) but the sheer volume of traffic that a popular bulletin board can sustain. This is illustrated by a recent American case. Located in Boardman, Ohio and operated out of their home by Russell and Edwinia Hardenburgh, Rusty & Edie's BBS is a well known board which specializes in adult material. On January 30, 1993 the house was raided by the FBI using a warrant which alleged that the BBS was illegally distributing copyrighted software programs without permission. An article in the Computer Underground Digest (#5.17, Feb. 28 1993) [End 13] summarized a newspaper account which stated that at the time of the raid the BBS had 124 phone lines serving more than 14,000 subscribers and had logged approximately 3.4 million calls since 1984, with more than 4,000 new calls daily. The FBI raid set off a storm of controversy within the on-line community (including a biting editorial by John C. Dvorak in the May 11, 1993 issue of PC Magazine). Ken Smiley, in a post to the BBSLAW Fidonet conference attempted to put the matter in perspective:
First off, R&E was receiving about 40-50 MEGS of new files daily at the time their system was raided. I think you will agree that it is hard for someone to check out all 40-50 megs of these files to determine if they were commercial or not. In fact, many files were uploaded, commented, and downloaded before the sysops had a chance to inspect them. This may not be the "safest" way to run a BBS, in other words some sysops don't allow users to D/L a file until the sysop has checked it out first. I would have to agree that I couldn't check 40-50 Megs of files per day, nor would I want to unless someone was paying me a lot of $$$ and even then I don't know if I could.
R&E was carrying tens of thousands of files online. When the warrant was issued (and the warrant is on public record so I can talk about it) the authorities included a nearly 200 page list of files with the warrant. Among that 200 pages were 2 files underlined that were of commercial nature and that the authorities felt were enough to go after the system. (Smiley reposted in Computer Underground Digest, #5.42; June 24, 1993)
Over the course of ten years, the Hardenburghs had turned their hobby into one of the largest bulletin boards in North America. But theirs is still a small business. It would be necessary
to have employees whose sole function every day was inspecting every image on the latest CD-ROM acquisition and screening every image or message uploaded to a file area or conferences. A small business running a BBS cannot be expected to hire additional staff to perform these monitoring functions. The Hardenburghs restrict access to adults by requiring credit cards for subscriptions, but do not monitor every transaction the members conduct. Controlling the flow of information is like trying to police the conversations in a restaurant or a bar. This provides some indication of the sort of problems a BBS can face þ whether that one file in 10,000 is copyrighted or obscene.
Chat-lines are another form of computer-based pornography. It could be argued that the "sex on-line" realm of BBS message areas and real-time chat lines are an adult fantasy game which lacks bodily contact -þ safe sex pushed to an extreme. Picture suburban rec-rooms or at-home offices where adults exercise their imaginations with a curious blend of verbal dexterity and typing skill, somewhat like a cross between a 976 phone sex service and a 19th century epistolary contest. Jack Rickard, well- respected editor of Boardwatch Magazine, put it this way, in a less-than-politically- correct column:
Systems advertised to be a real hot spot, are often frequented by pretty normal people discussing pretty mundane things. ... The online world of sexual discussion is largely a world of fantasy þ where the middle-aged insurance salesman, balding and sporting a houseful of kids and mortgage payments, can for a few hours assume the persona of Don Juan, Don Quixote, or Don Drysdale. It is interesting to note that many of the svelte, ravishing young femme fatales online are actually sixty-ish, widowed, and perhaps physically handicapped. Their lives in the real world are largely as non-participants, shut into smallish homes with no money or mobility to go anywhere. The modem and these fantasy worlds online allow them to be as young or as old, as rich or as poor, as pretty or not as they claim to be. There is little chance of being called on the little white lie. It is a form of group, interactive escapism that is almost entirely harmless -- and often therapeutic. The relative anonymity and safety of typing keys in the quiet dark of your own den leads to a false sense of intimacy. These people share not just their innermost feelings, but often fantasies they would not dream of living out in the real world, or even of revealing to their close friends and relatives. (Rickard 1992: 6)
Like 976 telephone sex services, BBS adult chat-lines are fantasy dialogues. The most important difference, however, is not that the 976 service is aural and the BBS is typewritten, but rather that the 976 service features a paid employee at one end of the line and a customer at the other. In the adult BBS chat-line, both parties are private individuals who have consented to communicate with each other. Their BBS membership or subscription does not pay for the service's employee to whisper sultry suggestions but rather provides access to a space where like-minded adults have chosen to congregate so as to converse with each other.
To understand how law enforcement and the judicial systems deal with obscenity, we must start with the legal framework at the federal, provincial, and municipal levels of government. This section also describes a sample of recent police actions and discusses the problems of enforcement with respect to obscenity in traditional media and with regard to the distinctive challenges posed by computer-based pornography.
In Canada, the legislative response to obscenity can be divided into three main phases which correspond to the following boundaries:
(1) the 1897 Criminal Code and the Hicklin test;
(2) the 1959 Criminal Code and the Supreme Court cases of Brodie, Dansky and Rubin v. R (1962) and Dominion News and Gifts Ltd v. R. (1963); (3) the proclamation of the Canadian Charter of Rights & Freedoms in 1982 and the 1992 Supreme Court decision in R v. Butler.
According to W. H. Charles, "The first Canadian statutory provisions relating to obscene publications appeared in section 179 of the Criminal Code of 1892" (Charles 1966: 244) which provided that the public sale or exposure for sale of any obscene book or printed matter would constitute an indictable offence. The 1892 Criminal Code did not, however, contain a definition of the term "obscene". Lacking any statutory definition of obscenity (until the Criminal Code was revised by statute in 1959), the Canadian courts relied almost entirely on the definition put forward in an 1868 British case, Regina v. Hicklin. At that time, Lord Chief Justice Cockburn wrote:
... I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. (LR 3 QB 360 (1868) in Copp & Wendell 1983: 326)
Although instrumental in British, Canadian, Australian, and American jurisprudence for many decades, the Hicklin test was criticized regularly by legal scholars, lawyers and judges. One of the most damaging criticisms is that "the test requires a subjective, speculative evaluation by the judge of the corrupting and depraving tendencies of the material (whatever this may mean), upon a group of unknown readers" (Charles 1966: 245). [End 14] In addition, there have been a number of objections raised with respect to demarcating the boundary of obscenity based on purported vulnerability of a peculiar class of victims, namely, "those whose minds are open to such immoral influences." This establishes a very restrictive standard by which, for example, works of literature could be prohibited because they are not suited to children or emotionally unstable persons. [End 15] In American law, the Hicklin rule was curbed in the landmark obscenity case concerning James Joyce's Ulysses (United States v. One Book Called "Ulysses" (1933), 5 Fed. Supp. 182). This case also pinpointed another failing of the Hicklin test þ that it could be applied in such a way that isolated passages in a book are taken out of context and, on the basis of those passages, the entire publication declared obscene (Charles 1966: 245-246). The focus on textual fragments would ignore the work as a whole and any redeeming social, artistic, or scientific value. [End 16]
Canadian law would have to wait until the early 1960s before these deficiencies in the Hicklin rule were explicitly remedied. The circumstances which led to this change began with the 1952-1953 Senate Hearings of the Special Committee on Sale and Distribution of Salacious and Indecent Literature (Charles 1966: 250-260). One of the individuals who testified before the Committee was Mr. D. E. Fulton, who for the next four years, as a member of the Opposition in the House of Commons, continued to push for a clearer definition of obscenity. It was not until the election in 1957, which granted a victory to the Conservative Party, that Mr. Fulton, now the newly appointed Minister of Justice, could pursue his campaign.
The first statutory definition of obscenity was provided when Bill C-58 redefined the Criminal Code provisions in 1959. The amendment to the Criminal Code introduced a definition based on the "undue exploitation of sex". At that time designated Section 150 (now 163), the statutory formula states that "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty, and violence, shall be deemed to be obscene."
It was not long before a crucial decision with respect to obscenity was reached by the Supreme Court. In the case of Brodie, Dansky and Rubin v. R., the Supreme Court determined that D. H. Lawrence's novel, Lady Chatterley's Lover, was not obscene. C.S. Barnett commented:
Although it has not been regarded as binding in other aspects because it does not represent a majority opinion of the Supreme Court of Canada, Justice Judson's judgements in Brodie has definitely established certain propositions which have not been subsequently challenged or contradicted, namely: (1) The undue exploitation need not be the most, or only, dominant characteristic of the work so long as it is a dominant characteristic of the whole work and not merely a dominant characteristic of particular parts or aspects of the work regarded in isolation or out of context. (2) The author's purpose and the actual artistic merit of the work are both relevant to both "dominant characteristic" and "undue exploitation". Furthermore, prevailing community standards are relevant to "undueness". (Barnett 1969/70: 12)
A similar conclusion was reached two years later with respect to what in the Sixties were called "girlie magazines" (the case centred on two magazines, one called Escapade and the other called Dude). The Supreme Court overturned the majority decision by the Manitoba Court of Appeal in Dominion News and Gifts, (1962) Ltd. v. R. (1963) and sided instead with the dissenting Judge Freedman.
The third and most recent phase in the judicial handling of obscenity was inaugurated on April 17, 1982, when the Charter of Rights and Freedoms was proclaimed in force. Of particular relevance to obscenity are the fundamental freedoms guaranteed by section 2.b of the Charter: "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication." The Charter soon had a number of impacts on obscenity related matters. For example, on March 31, 1983, the Ontario Divisional Court ruled that the power of the Ontario Censor Board (now called the Ontario Film Review Board) to order deletions from movies or to ban certain motion pictures entirely was an unreasonable limitation on the freedom of expression guaranteed under the Charter. The Ontario Court of Appeal subsequently upheld this decision. Another Charter case arose with respect to the Customs Tariff which was still explicitly using a Hicklin test:
Under the Customs Tariff, customs officials were, until 1985, empowered to forbid entry into Canada of material of an "immoral or indecent" character, as determined by reference to community standards; the scope of those words was wider than that of "obscenity". Thus a broader range of materials could be kept out of the country by administrative action than by criminal prosecution. On 14 March 1985, however, the Federal Court of Appeal found that this provision was too vague to be compatible with the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms and, therefore, was of no force or effect. The Customs Tariff was subsequently amended to change the reference in the schedule to materials "deemed to be obscene" under subsection 163(8) of the Code, or found to be hate propaganda under section 320(8). (Robertson 1994: 6)
The most significant recent finding, however, was the February 27, 1992, Supreme Court of Canada decision in R. v. Butler. At issue was the constitutionality of the obscenity provisions in the Criminal Code. The Court concluded that although Section 163(8) infringes on Section 2(b) of the Charter, it can be demonstrably justified under Section 1 of the Charter which "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
Judge Sopinka's decision contains an assessment of the judicial interpretation of Section 163(8) of the Criminal Code. If a work is obscene, "the exploitation of sex in a work must not only be its dominant characteristic, but such exploitation must be 'undue'" ([1992] 1 S.C.R., p.475). The most important test for whether the exploitation of sex is "undue" is the community standard of tolerance test. [End 17] This test "is concerned not with what Canadians would not tolerate being exposed to themselves, but with what they would not tolerate other Canadians being exposed to" ([1992] 1 S.C.R., p.475). [End 18]
The 1992 Supreme Court decision specifies how the community tolerance test relates to the Criminal Code:
The courts must determine as best they can what the community would tolerate being exposed to on the basis of the harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an anti-social manner.... Anti- social conduct for this purpose is conduct which society formally recognizes as incompatible with its functioning.... The stronger the inference of a risk of harm, the lesser the likelihood of tolerance....
... the portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.
If material is not obscene under this framework, it does not become so by reason of the person to whom it is or may be shown or exposed nor by reason of the place or manner in which it is shown. The availability of sexually explicit materials in theatres or other public places is subject to regulation by competent provincial legislation. Typically such legislation imposes restrictions on the material available to children. ([1992] 1 S.C.R., 485)
This last clause suggests that if computer bulletin boards had sexually explicit material which "is not violent and neither degrading nor dehumanizing" then it would not be regarded as obscene even if teenagers could access the material. Material does not become obscene "by reason of the person to whom it is or may be shown." Nor can it be viewed in isolation; sexually explicit material may be exempt according to the "internal necessities" test:
The portrayal of sex must then be viewed in context to determine whether undue exploitation of sex is the main object of the work or whether the portrayal of sex is essential to a wider artistic, literary or other similar purpose. The court must determine whether the sexually explicit material when viewed in the context of the whole work would be tolerated by the community as a whole. Any doubt in this regard must be resolved in favour of freedom of expression. ([1992] 1 S.C.R., 454- 455)
Through case law, the boundaries of obscenity and the relation between both purviews and levels of responsibility continue to be defined:
In October 1993, the Ontario Court of Appeal ruled that the definition of obscenity is limited in order to capture only material that creates a substantial risk of harm. Moreover, the fact that films or videos have been approved by a provincial agency such as the Ontario Film Review Board, while relevant in terms of community standards, does not amount to a lawful justification or excuse for their content, or a bar to prosecution. (R. v. Hawkins (1993), 15 O.R. (3d) 549). The Supreme Court of Canada agreed in April 1994 to hear an appeal of this case. (Robertson 1994: 14)
As this brief review indicates, it is important to acknowledge that the Canadian legislative and judicial response to obscenity has been steadily evolving and responding to social change for more than a century. There is now a substantial body of case law which provides the parameters for conducting both the prosecution and defence of books, magazines, and videos deemed to be obscene. Although this body of knowledge and the legal processes which enact it have been explicitly developed for traditional mass media, they can nonetheless guide us in dealing with computer-based or on-line manifestations of obscenity.
There are a variety of mechanisms which enforce the laws pertaining to obscenity. The RCMP, various provincial police forces (some with special task forces such as Project P set up by the Ontario Provincial Police) and municipal police investigate cases of obscenity. The number of cases is actually fairly low and the number of convictions even lower. End 19] Some of the complications which arise in law enforcement activities regarding obscene material are evident from the following two cases:
In April, 1991, police forces in 14 municipalities, acting on instructions from the Ontario Provincial Police antipornography unit, raided 22 Adults Only stores across the province and seized 10 tapes from each. Despite the film board's approval of the videos, Jorgensen was convicted on charges of distributing obscene material in Hamilton and Scarborough. He has appealed both decisions. Courts in some other municipalities acquitted him, some police forces dropped the charges, and a few cities are awaiting the outcomes of the appeal before deciding whether to proceed. Jorgensen is also facing a charge in Winnipeg based on a police seizure of nine tapes in June, 1992. (Jenish 1993: 55)
In September 1991, Toronto police seized sexually explicit videotape as being obscene. Two people were charged with various criminal counts of owning and distributing obscene material, notwithstanding the fact that the tapes had been viewed and cleared by Ontario's Film Review Board. This incident highlights the differences between the federal and provincial laws. It also illustrates the problems of enforcement of the obscenity provisions when some provinces adopt a more lenient attitude than others and the difficulties and unpredictability inherent in the "community standards" test. (Robertson 1994: 13)
There are two significant police actions pertaining to the use of computer bulletin boards to distribute pornography. On May 20, 1993, the Winnipeg Police raided eight computer bulletin boards located in the homes of six adult males and two male juveniles. Another operation was undertaken in the fall of 1993, when the Metro Toronto Police raided 10 homes in a crackdown of pornography on computer bulletin boards. Research is under way to ascertain the details of these incidents, whether they went to trial and, if so, the outcome of the trials.
We have seen a fairly unstable picture emerge with respect to a medium such as videotape, which has had more than a decade (plus a long motion picture history) to establish rules, procedures and mechanisms for dealing with obscenity. The situation is even more inchoate if we turn to the problem of obscene material on computer bulletin boards.
With respect to controlling violations which arise from traditional pornography, there are two main obstacles. First, various bodies at the federal, provincial, and municipal levels have jurisdiction which can lead to confusion among law enforcement and public alike. Secondly, there are indicators that the arrest rate for obscenity charges is low compared to other vice crimes. The conviction rate is even lower. Boyd, in one of the few long term empirical studies, summarizes:
The criminal enforcement of obscenity does not appear to be a particularly large enterprise of control. Less than 300 Canadians are charged each year with the offence; those convicted are invariably fined for their conduct [instead of being sentenced to imprisonment]. (Boyd 1984: 67)
We must bear in mind that these figures pertain to obscenity charges in all media (film, video, books, magazines, live performance, and paraphernalia).
As long as one is dealing with tangible media (such as pornographic CD-ROMs), the problems arising from computer-based pornography are similar to those regarding books, magazines or videos. A completely new set of difficulties, however, arises with material distributed over computer networks. The problem of detection, for instance, cannot be overcome technically without massive social surveillance -- an untenable option because it would violate the privacy of individuals on a scale intolerable in Canada. Bulletin boards are easy to set up and difficult to track down, particularly if the BBS is operating covertly rather than publicly. A private BBS with adequate login security could engage in illicit activity which no one would know about except the users.
The maxim "bits know no boundaries" highlights both the problems of detection and problems of prosecution. Transborder flows of information in the form of satellite transmission and telecommunications traffic are virtually impossible to monitor and even more laborious to obstruct. Satellite transmissions have already created questions of whether a law is being transgressed in one country but not in another (e.g., a pornographic television channel intended to serve one European country could also be received in another).
International computer networking leads to similar enforcement difficulties. Assume that a Canadian operates an Internet server or a BBS located in another country. Except for any physical on-site problems (for which local arrangements could be made), it would be quite feasible to maintain the site over a telephone line or a computer network even though it was thousands of miles away. Canadian laws regarding obscenity could be flouted. Consider another, probably more common, example. Messages could be posted to a newsgroup by an individual in another country and distributed to a Usenet host in Canada. An identical dilemma occurs with respect to the uploading of files to an online ftp archive. Assuming that the culprit could be identified -- a not inconsequential problem -- it may be difficult to actually prosecute the individual. Serious challenges to law enforcement are posed by both the jurisdictional difficulties (provincial, inter-provincial, international) and the co-ordination of law enforcement agencies such as the RCMP, provincial police, and municipal police. [End 20]
Controlling Access to On-line Pornography
USENET already provides a number of means of restricting local user access. If they wish, the operators of publicly accessible USENET hosts could refrain from carrying certain adult-oriented newsgroups or, like Prodigy Services Co., only grant Internet access to children if they have received parental consent. Individuals can also exercise control simply through their choice of newsgroup subscription. These safeguards could be enhanced further by using technological controls. Nearly every newsreader comes with a "kill-file" option that allows users to set the software to automatically delete messages based on (i) origin, (ii) subject line, or (iii) words contained in the message. Unfortunately, many people are unaware of these capabilities. Some members of the community may be aware but share the common problem of having difficulty programming a VCR -- for them, customizing a newsreader can be a daunting task. A range of options should be available to meet the expanded Internet community.
Newsreader programs could be equipped with password controls and the like so that unsupervised children could not subscribe to additional newsgroups. Only a parent or teacher with the correct password could add any additional newsgroups. Measures of this sort are becoming more common. For example, "Jostens Inc. recently released software for schools that allows teachers to block electronic bulletin boards that contain pornographic pictures" (Sandberg 1995: B2).
"Gopher" servers used for browsing by special audiences such as school children, could be customized with built-in constraints to restrict searches. Such controls would curb neophyte extravagance; although an enterprising explorer, by connecting from one gopher to another, could eventually gain access to material that was screened out at the local site. Even this sort of activity is not unmanageable if one judges by Surfwatch Software Inc.'s solution recently described in the Wall Street Journal:
Surfwatch's [vice-president of marketing] Mr. Friedland said that the software contains the Internet addresses of computers storing sexually explicit material, blocking a user's attempt to access those computers. But such porno-troves often are a moving target: once users find out about them, those computers tend to get overwhelmed by traffic, shut down and move elsewhere on the network and take a new address.
To counter that problem, Surfwatch will charge users a subscription fee for software updates that include new offending Internet addresses. The company is using a database to search the Internet for words such as "pornography" and "pedophilia" and make a list of Internet sites, which won't be visible to users. That's no easy feat, said Mr. Friedland, because "pedophilia is spelled like four different ways." He added, "People often ask us if we'll sell that list. We're not going to." (Sandberg 1995: B2)
One of the most promising areas for introducing control mechanisms are adaptive filters, sometimes called "know-bots" or artificial agents. The idea of filtering the many megabytes of daily USENET feed crossed the line from daydream to reality when Stanford University's Department of Computer Science made accessible a Netnews Filtering Server (netnews@db.stanford.edu). As their February 1994 announcement states:
A user sends his profiles to the service, and will receive news articles relevant to his interests periodically. Communication to and from the service is via e-mail messages.
A user's profile is, in the style of WAIS ... queries, just a plain piece of English text; e.g., "object oriented programming," or "nba golden state warriors basketball." Based on the statistical distributions of the words in the articles, scores are given to evaluate how relevant they are to a profile. The highest possible score given to an article document is 100. The user can specify the minimum score for an article to be delivered. (tyan@cs.stanford.edu, February 1994)
This approach is interesting for two reasons. First and foremost is its main function: to filter through USENET looking for articles that match a profile defined by a specific individual. Second, is the fact that the filter is adaptive: an individual can send the server feedback. This type of feedback helps the program to fine-tune its profile search, making it more efficient at fulfilling personalized requests.
Although the Netnews Filtering Server is currently used to search for articles, there is no reason in principle why it could not be modified to screen out offensive or inappropriate messages. If an individual does not wish to receive USENET articles on particular topics or dealing with certain kinds of subject matter not subscribing to a newsgroup is obviously the first line of defense. A software filter would provide an added layer of protection by intercepting messages from self-styled propagandists or miscreants who cross-post messages outside designated newsgroups (for example, a message intended for the consensual sexual discourse of alt.sex.incest could be maliciously cross-posted to alt.abuse-recovery).
Just as Stanford's adaptive filter can handle hundreds of individual profiles, a similar filter at a USENET host-site could operate with hundreds and eventually thousands of user profiles. Those who chose to receive adult-oriented material could provide proof of age and have their profile adjusted accordingly. The adaptive filter, however, could selectively screen out posted messages so that children for whom such material would be inappropriate or adults who find such material objectionable would not be exposed to offensive content. [End 21]
It is also be feasible for individuals to install newsfilters and similar software monitoring programs on their home PCs rather than having to rely on the facilities of an information provider. A Vancouver software developer is currently marketing a product called Net Nanny which is an alphanumeric input-output scanner with password protection and other features:
The program works along side operating systems but without the knowledge of those one may wish to protect. First a parent selects and inputs information into Net Nanny's dictionary, like adult-content bulletin board service's (BBS) access numbers, explicit words or phrases and personal information such as children's names, addresses, phone numbers or any other information to be kept private. If any of these are typed on the PC's keyboard, or received during a data conversation a "hit" is registered, logged and if desired, the keyboard locks-up and the system automatically shuts down. The system cannot be disengaged without utilizing the Net Nanny administration program. A variety of security functions are also provided. (fax from Net Nanny Inc.)
These technological approaches support individual freedom and responsibility. Arguing that the government should shut down adult-oriented bulletin boards just because an eight-year old can use a computer is analogous to saying that the sale of alcohol should be banned because children know how to use bottle-openers. Those who choose to have a liquor cabinet at home or keep beer in the refrigerator will exercise parental responsibility. Similarly, the responsible use of computers begins in the home. Given the decentralized structure of the Internet, bits and bytes are virtually impossible to control completely whether by technological or legislative means. In their pamphlet on "Child Safety on the Information Highway", the National Centre for Missing and Exploited Children states:
The best way to assure that your children are having positive online experiences is to stay in touch with what they are doing. One way to do this is to spend time with your children while they're online. Have them show you what they do and ask them to teach you how to access the services.
While children and teenagers need a certain amount of privacy, they also need parental involvement and supervision in their daily lives. The same general parenting skills that apply to the "real world" also apply while online.
If you have cause for concern about your children's online activities, talk to them. Also seek out the advice and counsel of other computer users in your area and become familiar with literature on these systems. Open communication with your children, utilization of such computer resources, and getting online yourself will help you obtain the full benefits of these systems and alert you to any potential problem that may occur with their use. (NMEC 1994)
Just as we street-proof our children so that they can play outside safely, we must also teach our children some basic rules so they can be safeguarded when exploring the information highway.
One of the first comprehensive investigations of child pornography in Canada was conducted by the Committee on Sexual Offences against Children and Youths (the Badgley Committee). Its August 1984 report concurred with a recent investigation by the Department of Justice which concludes that "child pornography is neither professionally made nor commercially produced in Canada ... it is `homemade' by paedophiles who have communication networks and exchange clubs." The amount of child pornography entering Canada appears to be quite small. Revenue Canada (Customs and Excise) data on seizures and detentions of prohibited materials from January 1986 to November 1990 indicates that only 1.3% of almost 39,000 enforcement actions involved child pornography.
While society at large adopts a zero-tolerance attitude toward child pornography, there are very small pockets of support for paedophilia. NAMBLA (North American Man-Boy Love Association) is a U.S. organization headquartered in New York that advocates consensual sex between male adults and male minors. The organization distributes a publication called the NAMBLA Bulletin. In the June 1990 issue of Rites it was reported that NAMBLA had approximately 500 members and the Bulletin had a readership of about 1100, some of which were reported to live in Canada.
Although many countries make the production and distribution of child pornography illegal, the possession of such material is not universally prohibited. In Denmark, Finland, and Sweden for example, possession of child pornography is legal. [End 22] Amendments to criminalize possession have recently been introduced in Canada, Germany, Norway, the United States and the United Kingdom. The international dimension has been highlighted by The Ottawa Citizen:
In March 1993, an international porn bulletin board ring was silenced with simultaneous raids in the U.S. and Denmark.
Earlier this month, an FBI hacker discovered a child pornography archive at Birmingham University in England. It was accessible via bulletin boards in 160 countries when police closed it down and arrested a university researcher. (Abraham 1994)
In the United States, child pornography does not receive First Amendment protection (Federal statute: 18 USC 2252). Whereas the body of case law regarding child pornography has been developing for many years (for example, New York v. Ferber, 458 U.S. 747 [1982]), law enforcement and the courts have only recently begun to turn toward computer-mediated instances. A number of computer bulletin boards, for example, were raided for child pornography in December 1993: charges were laid against the sysop of a BBS in North Carolina (CU Digest, #5.94) and in a separate incident against another in Medford, Massachusetts (CU Digest, #6.02).
The following testimony of police detective Norren Wolff, before a House of Commons committee on crime prevention, illustrates some of the Canadian enforcement problems related to child pornography prior to 1993 Criminal Code amendments. While executing a warrant on a suspected sexual offender, Wolff retrieved copies of NAMBLA's Bulletin, a Dutch paedophile magazine, Paedika, and publications from the U.S.-based Rene Guyon society. When charges were not laid, the publications were returned to the individual. According to Wolff: "the photographs in the NAMBLA magazine are not in themselves pornographic and there's really nothing (in the Criminal Code) covering the written word, so I think we would have trouble getting a conviction" ("Ban on pedophilic publications demanded". Vancouver Sun. January 21, 1993, A3).
On August 1, 1993, the Criminal Code was amended to include provisions making child pornography an offense. It defines child pornography as:
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or
(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act. (Section 163.1)
The new amendments to the Criminal Code not only prohibit the production, distribution and sale of child pornography but in addition make possession of such material a criminal offence.
Although Canadian owners of computer bulletin boards have been charged under obscenity provisions, preliminary research indicates that only a few Canadian systems operators have been charged under the child pornography provisions of Section 163.1 of the Criminal Code. One of the more controversial cases involves a March 1995 search warrant sanctioning law enforcement action against a couple of hobby bulletin boards in Vancouver (a court date has been set for May 31, 1995). [End 23] The media have reported a number of other recent cases, for example the May 22, 1995 Maclean's relates:
In Calgary last month, police say they discovered a trove of kiddie porn in the home of a man who had already been charged with sexual assault and sexual contact with a child. "We seized several dozen videotapes, written communication and computer disks, and it all depicted child pornography," says Staff Sgt. Fred Bohnet, who is in charge of the child abuse unit of the Calgary Police Department. The evidence, he adds, indicates a national and international child pornography ring operating from computers in Canada, the United States and Europe. Alan Norton, 52, has pleaded not guilty to 51 charges of possession of child pornography, in addition to the sexual assault and contact charges. (Chidley 1995: 58)
Given that the new child pornography provisions have only been in effect for less than two years, it is evident that it is still too early to assess their impact on the online world.
Harassment covers many forms of offensive behaviour including -- but not limited to -- unwelcome communication. [End 24] Harassment has been defined as an abusive attempt to assert power over another person. It can be committed on the basis of race, marital status, age and national or ethnic origin. Some people are harassed because of their political or religious beliefs, others because they have physical or mental disabilities. In a society characterized by sex-stratified divisions of power, probably the most pervasive form of harassment is the sexual harassment of women.
As was discussed earlier with regard to obscenity and new media, the problems of our face-to-face inter- personal world are being carried over into cyberspace. Preliminary investigations have shown that there are a number of different forms of online and computer-based harassment including various forms of offensive e-mail, "net-stalking" and computer-mediated harassment in public places (such as displaying pornographic images on computer monitors in classrooms or offices). If we are to understand the nature of computer-based harassment and potential solutions for controlling it, we must have a solid foundation in the existing laws and instruments already in place.
Over the past twenty years, extensive mechanisms for legal recourse have been established at the federal, provincial and local levels of government. The Canadian Human Rights Act is an anti- discrimination law which was adopted in 1977 and took effect in March 1978. Section 3 of the Act declares the prohibited grounds of discrimination to be: "race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted." Harassment is made illegal under Section 14 of the Act:
(14) (1) It is a discriminatory practice,(a) in the provision of goods, services, facilities or accommodation customarily available to the general public,
(b) in the provision of commercial premises or residential accommodation, or
(c) in matters related to employment,
to harass an individual on a prohibited ground of discrimination.
(2) Without limiting the generality of subsection (1), sexual harassment shall, for the purposes of that subsection, be deemed to be harassment on a prohibited ground of discrimination.
The act applies to all federal government departments and agencies, Crown corporations, and businesses and agencies under federal jurisdiction. Provincial human rights laws provide protection in those areas which are not under federal jurisdiction.
If harassment takes place at work, victims can file complaints with their employer or their union. Under many circumstances, victims can also register complaints with the Canadian Human Rights Commission. The Commission received 208 harassment complaints in 1992; "approximately 63 percent or 128 actual cases were for sexual harassment" (Falardeau-Ramsay in Geller-Schwartz 1994: 46).
There have been a number of significant Canadian Supreme Court cases pertaining to harassment. For example, Robichaud v Canada (Treasury Board) established the responsibility of an employer for an employee's unauthorized discriminatory acts in the workplace. [End 25]
In his 1987 decision, Judge La Forest explained that:
... the Act... is not aimed at determining fault or punishing conduct. It is remedial. Its aim is to identify and eliminate discrimination. If this is to be done, then the remedies must be effective, consistent with the "almost constitutional" nature of the rights protected. ([1987] 40 D.L.R. (4th), 581)
... I would conclude that the statute contemplates the imposition of liability on employers for all acts of their employees "in the course of employment", interpreted in the purposive fashion outlined earlier as being in some way related or associated with the employment. It is unnecessary to attach any label to this type of liability; it is purely statutory. ([1987] 40 D.L.R. (4th), 584)
The decision in Robichaud also indicated that if an employer is held liable, the degree of redress would be balanced by such factors as whether there was an explicit company policy regarding sexual harassment, whether there were procedures in place to handle complaints, and so on. [End 26]
Another important Canadian Supreme Court decision pertaining to sexual harassment was reached in Janzen v. Platy Enterprises Ltd. (1989). The issue before the Court was whether sexual harassment in the workplace constituted discrimination on the basis of sex. The original case had been tried in Manitoba where the province's Human Rights Act dealt explicitly with discrimination on the basis of sex but not with sexual harassment. [End 27] A board of adjudication found that the appellants, Janzen and Godreau, had been victims of sex discrimination. On appeal, the Manitoba Court of Queen's Bench upheld the adjudicator's decision. Platy Enterprises appealed the decision to the Manitoba Court of Appeal ([1986] Dominion Law Reports, 33 D.L.R. (4th), 32-71). Agreeing with the employer, Huband J.A. decided that "Sexual harassment is not discrimination on the basis of sex under the terms of the Human Rights Act" ([1986] 33 D.L.R. (4th), 33). Similarly, Twaddle J.A. concluded, "There is no legal duty on an employer to provide a workplace free of sexual harassment" ([1986] 33 D.L.R. (4th), 34). The Supreme Court of Canada, however, set aside the judgement of the Court of Appeal of Manitoba and restored the judgement of the Manitoba Court of Queen's Bench. In his decision, Chief Justice Dickson formulated an important definition:
... sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas ..., and as has been widely excepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being. ([1989] 1 S.C.R., 1284)
Although reservations have been expressed as to whether this definition of sexual harassment is broad enough to capture all gender-based harassment, the Supreme Court's decision does have the effect of prohibiting sexual harassment as defined in all jurisdictions in Canada. With this background, we can now turn to computer-mediated forms of harassment.
The Canadian university crackdown on USENET's alt.sex in the spring and summer of 1992 has often been cast in terms of freedom of expression versus censorship. The response by the University of British Columbia Task Force, however, indicated that the problem could be repositioned. Among the most frequently reported incidents said to have kindled the crackdown were those that would appear to be less the dissemination of obscenity than flagrant instances of sexual harassment. [End 28] To quote a Globe & Mail article, a University of Manitoba women's-centre worker named Danishka Esterhazy:
... said a female student could walk into a computer laboratory and find a picture of a woman being raped on the computer screen next to her, hear male students laughing as they read about a woman being tortured, or be forced to wait at a computer printer while a male student got a printout of an obscene photograph of a woman. (Moon 1992)
These are quite likely instances of harassment as can be gathered by referring to the Introduction to the Canadian Human Rights Act, which explicitly includes among its examples of harassment the "displaying of pornographic, racist or other offensive or derogatory pictures" (Canadian Human Rights Commission 1985: 23). It does not matter whether the offensive image is indelibly inked on glossy magazine paper or projected on a computer monitor: displaying pornographic images in public places [End 29] is potentially a violation of the Canadian Human Rights Act. [End 30]
There is also an important distinction to be emphasized between attempts to control the problem using obscenity laws rather than human rights codes. There is no reason to ban a USENET newsgroup that contains sexually explicit material which is not obscene under the Criminal Code. Someone who persists, however, in displaying pornographic images on a computer monitor located in a public place such as an office, factory, university computer centre or library is engaged in a discriminatory practice.
One of the other forms of electronic harassment is offensive e-mail which, in certain respects, overlaps with the broad field of privacy. Although the term "offensive e-mail" could designate many things, the most serious corresponds less to the postal analogy of junk mail and more to a disturbing telephone parallel -- obscene calls. Telephone harassment is covered in part by the Canadian Human Rights Act (for example, S.13 prohibits hate messages) as well as by S.372(3) of the Criminal Code which states:
Every one who, without lawful excuse and with intent to harass any person, makes or causes to be made repeated telephone calls to that person is guilty of an offence punishable on summary conviction.
In addition to legal avenues, there are a variety of technical solutions available to anyone who desires to block out e-mail being sent to them by particular individuals. For example, those on Unix systems using the elm mail program have a filter option. There are also mail filtering programs such as procmail (available on many ftp sites).
Just as the most perilous form of sexual harassment is sexual assault, perhaps the most dangerous form of electronic harassment is "net stalking". Given the public's justifiable concern about "sexual predators", it is not surprising that any case of computer networks being used to stalk victims attracts media attention. One of the rare cases of "net stalking" was reported in papers across the continent, including The Ottawa Citizen which wrote:
Police in Cupertino, California charged a 27-year-old engineer last month for an attack on a 14- year-old boy. The accused, who called himself HeadShaver on the America Online computer network, had several online chats with the boy before luring him to meet in person.Police allege HeadShaver tortured and raped the boy, then ordered him to write about the experience online. The boy's father discovered the electronic account and went to police, who have since been overwhelmed with phone calls about other "HeadShavers" on the Net. (Abraham 1994) [End 31]
The immediacy of response, relative anonymity, and illusion of intimacy which sometimes characterizes communication via computer bulletin boards and chat lines occasionally induces many of us to lower our guard. If those of us who perceive some of the risks still miscalculate, surely it is incumbent on us to empathize with those who are even more vulnerable.
Just as we "streetproof" our children, we should also teach them how to be safe on the information highway. Howard Rheingold's reflections are worth repeating:
I bought an Internet account for my daughter when she was eight years old, so we could exchange email when I was on the road. But I didn't turn her loose until I filled her in on some facts of online life. "Just because someone sends you mail, you don't have to answer them," I instructed her. "And if anybody asks if you are home alone, or says something to you that makes you feel funny about answering, then just don't answer until you speak to me."...
Teach your children to be politely but firmly skeptical about anything they see or hear on the Net.... Teach them that people are not always who they represent themselves to be in email, and that predators exist. Teach them to keep personal information private. Teach them to trust you enough to confide in you if something doesn't seem right. (Rheingold 1994: 95)
Canada has enjoyed a well-deserved reputation as a tolerant society. Yet racism and anti-Semitism, with roots more ancient than our nation's birth, continue to exist within Canadian society. Organized racist groups, often associated with extreme right-wing politics, are perhaps the most visible manifestation of racism and anti-Semitism. There are a number of such groups in Canada, although membership is not large (Barrett documented 586 persons in the early 1980s with estimates running into the low thousands). Among the main organizations are the following:
(i) Events in the 1970s (a revival of the Ku Klux Klan in the U.S. and the re-emergence of fascist groups, particularly around Toronto) contributed to the formation of the Canadian Knights of the Ku Klux Klan in 1980, spear-headed by James Alexander McQuirter. In Canada, the Klan had virtually disappeared since the 1930s. Its peak had been reached in the late 1920s when it had thousands of members across the country and a particularly high concentration in Saskatchewan (1927 provincial estimates range between 10,000 and 40,000 members).
(ii) The white-supremacist Western Guard, which emerged out of the Edmund Burke Society in Toronto in 1972, has been under the leadership of John Ross Taylor since 1976.
(iii) Donald Clarke Andrews, forbidden by court order to associate with the Western Guard (which he led from 1972-76) created the National Citizens Alliance, soon renamed the Nationalist Party.
(iv) Among the most recent groups to emerge is the Heritage Front which went public in November 1989, headed by Wolfgang Droege, who had been McQuirter's lieutenant in the Canadian KKK.
(v) There are a variety of other groups including the Canadian National Socialist Party, Concerned Parents of German Descent (its most prominent member being Ernst Zundel) and the Aryan Nations (founded in the US by Richard Butler, its Canadian branch is headed by Terry Long in Alberta).
The first wave of post-World War Two hate propaganda in Canada occurred in the early 1960s and prompted the government to constitute the Cohen Committee. The Report of the Special Committee on Hate Propaganda in Canada (1966; aka the Cohen Report) remains one of the most extensive analyses of the organized dissemination of hate in Canada. The report focused on the spread of pamphlets and magazines:
The current hate campaign dates from early 1963, when it began in the Toronto area. Since then it has extended to several other centres in Ontario, and to at least seven other provinces... From 1963 on there was and continues to be a steady dissemination of hate propaganda, mainly anti- Jewish, anti-Negro and neo-Nazi in nature.... The printed, mimeographed and other written materials seem to be obtained in large measure, although not exclusively, from American sources. In many instances it is mailed directly from Arlington, Virginia, the headquarters of the American Nazi party and the World Union of National Socialists, and from Birmingham, Alabama, the headquarters of the National States Rights Party and its organ, "Thunderbolt"... (Canada. Special Committee on Hate Propaganda, 1966: 12-13)
The Cohen Committee recommendations formed the basis of some of the key hate propaganda provisions, s.318-320 of the Criminal Code, which were adopted by Parliament in 1970.
A second wave of anti-Semitic and racist activity erupted in the mid-1970s. Some of these racist and anti-Semitic themes became enmeshed with various strains of Christian fundamentalism. [End 32] Not all forms of prejudice, however, wrapped themselves in the garb of theology. For example, certain manifestations of historical revisionism (particularly "Holocaust denial" literature) and psychometric theories of racial superiority sought respectability by adopting scholarly trappings. Canadian youth espousing white supremacist and neo-nazi ideologies began to appear in the 1980s among various factions of the skinhead subculture. Rosen states:
This second wave of hate propaganda and racist group activity gave rise to a flurry of reaction and a wide-ranging debate. Proposals for legislative change came from a 1982 Vancouver Symposium on Race Relations and the Law, the 1984 Report of the Special House of Commons Committee on Visible Minorities (Equality Now!), the 1984 Report of the Canadian Bar Association's Special Committee on Racial and Religious Hatred, the 1985 Report of the Special Committee on Pornography and Prostitution (Fraser Committee) and the Law Reform Commission of Canada's 1988 Report on the Recodification of the Criminal Law. (Rosen 1994: 2)
The bulk of the hate propaganda in Canada continues to be disseminated in the print medium: pamphlets, magazines, and books. Examples of other media, such as video cassettes and audio cassettes, appear with less frequency.
The primary electronic form of disseminating hate propaganda in Canada has been telephone answering machines. For example, in 1979, John Ross Taylor and the Western Guard Party were found to be in violation of section 13 of the Canadian Human Rights Act which prohibits the telephonic transmission of hate messages based on race or religion. Between 1977 and 1979, Taylor had operated a hate line using a telephone answering machine. In 1979 the Canadian Human Rights Commission issued a cease and desist order which was made an order of the Court in August of that year. The appellants did not cease and desist. In 1980, Mr. Justice Dub‚ found the appellants guilty of contempt of court, fining the Party and imposing a one year suspended sentence on Taylor. Between June 1982 and April 1983, Taylor ran another hate line through his telephone answering machine and once again the Human Rights Commission sought a Court ruling. Taylor countered that under the Canadian Charter of Rights and Freedoms, which came into force on April 17, 1982, his freedom of expression was being violated. The case reached the Federal Court of Appeal and a decision was rendered on April 22, 1987 -- Taylor's appeal was dismissed.
Taylor's use of telephone answering machines to promote hate is not an isolated case. On July 25, 1989, a Canadian Human Rights Tribunal upheld a complaint against Terry Long, Randy Johnston and the Church of Jesus Christ Christian-Aryan Nations for setting up a hate line which had been operating in 1987 and 1988. Similarly, in 1992, the Canadian Human Rights Commission sought court orders for two white supremacist hotlines set up by the Heritage Front in Toronto. The persistence of some of these groups is clearly illustrated by the recent activities of the Canadian Liberty Net. In January 1992, the Canadian Human Rights Commissio