🚀 go-pugleaf

lalee@vcn.bc.ca (Lawrence Lee) wrote:



>Wouldn't the iStar lawyers have a good position then to scan all e-mail, 
>because if I'm not totally out there, e-mail is stored on iStar's 
>computer. If you send a UseNet post from a banned newsgroup is it somehow 
>legal, or less illegal now? If the police have a warrant for iStar's 
>servers.. what's the difference in the law if it was in useNet or E-mail?


There are several critical differences.  First, E-mail is a private
communication  transmitted from person to person, it does not have a
public aspect which would allow the process to be characterized as
publication.  Although it may be illegal for one person to E-mail an
offensive document to another, the internet provider is not complicit
in the act of knowingly disseminating offensive material.  If the
internet provider becomes aware of the E-mail transmissions and
willfully tolerates the practise it may risk some exposure to criminal
liability.

The discontinued newsgroups are created and maintained for the purpose
of publishing images and text which are likely to offend the criminal
code.  Their reason for being is an illegal one.  E-mail, on the other
hand, is not restricted to any particular  content.

In order to obtain a conviction under the criminal code, at least for
most offenses, the minimum  necessary state of mind of the accused is
one of recklessness.  The intent to commit a criminal act  is
construed where the accused knew that there was a substantial
likelyhood that his activity was a criminal one and proceeded with the
activity anyway.   In this matter,  iSTAR, from the names and charters
of the banned newsgroups, knows that there is a substantial likelyhood
of the groups being used to publish criminal material.  "Knowingly" is
proven sufficiently if the Crown shows that the accused had knowlege
of the nature of the item: R. v. McFall (1975), B.C.C.A.  The very
best illucidation of the law regarding the intent aspect of the
offence is found in R. v. Metro News Ltd, (1986) Ont. C. A.

The mere presence of the offensive images and texts on a server is not
enough to inculpate the internet provider.  As with the possession of
illicit drugs, the offence only exists if the accused knew of its
existence or was willfully blind to its existence. The provider  must
know of the presence of the images and text and also intend to store
or  transmit them with the server.

Morton M. Goldmacher 
Barrister and Solicitor