🚀 go-pugleaf

Hi Jim

I went back in the thread to see if the report had been referred to in
any posts (I noted your name from our earlier exchange) and could find
no reference so I posted it along with material from David Potts.  If
TFN is looking for legal expertise it appears David Potts could provide
them with this and he lives in Toronto.

For a US perspective on these sorts of issues you may also wish to look
at the URL below.  Bear in mind however our freedom of expression case
law differs from that of Americans.

http://www.gahtan.com/techlaw/

BTW as I understand the progress of the libel case by the professor in
England, the Canadian student (University of British Columbia?) who
allegedly libelled him on a newsgroup and the Canadian ISP were found
liable for defamation per a default judgment by the English courts.  It
is my understanding that the ISP has now retained counsel in England and
set aside the default judgment so that the ISP may file a Statement of
Defence leading to a full trial on the issues.  ISP's should recognize
since posts are published to the world at large, they may also be
subject to both civil and criminal foreign laws as well as domestic laws
for the actions of their subscribers as has occurred in this case.   As
foreign judgments from many countries may be registered and enforced as
if issued by a Canadian court, this is not simply an intellectual
exercise.

It is often said but it bears repeating - freedom of expression is NOT
an absolute right.  In Canada it is proscribed by the civil law of
defamation and criminally under the Criminal Code for such things as
criminal libel and hate propaganda and the Charter specifically notes
that the rights and freedoms described therein are... "subject only to
such reasonable limits prescribed by law as can be deminstrably
justified in a free and democratic society." ( See section 1).  Other
countries may proscribe the conduct more or less strictly.  For example
Germany has specific criminal laws which prohibit denial of the
Holocaust and foreign nationals have been prosecuted for breach of these
laws in the past.  Posting such materials to a German newsgoup or even
directing these comments to a person in Germeny may be sufficient to
engage the jurisdiction of the German criminal courts.  Some people seem
to have the mistaken (and potentially costly) notion that posting to the
Usenet or the Internet per web pages somehow insulates them from
liability - it does not.  If you breach civil or criminal law then you
may be held liable civilly or prosecuted.

This is not an easy area to understand nor for counsel to give legal
advice on potential liability given the multi-jurisdictional aspects. 
Those who postulate freedom of expression as an absolute value do not
have a clue about how the real world operates and the competing values
at issue.  Such people may freely propagate their views should they wish
but they should not expect others to act as guarantors for their
conduct.  There is nothing to prevent anyone from setting up their own
ISP to say whatever comes into their minds but they should not expect
others to sit back and allow themselves to be put a risk.  Vicarious
criminal or civil liability could attach to an ISP despite its pure
intentions and even having a policy and procedure (TOS, AUP, etc.) in
place to try to prevent such problems.  Simply burying one's head in the
sand is not a recommended approach.  You could not pay me enough money
to act as an officer or director of an ISP given the potential for
liability and i would insist at a minimum that the ISP provide insurance
in the event of my being found vicariously liable for the actions of a
member or subscriber.  Ultimately the courts may strike some balance
here but I for one would not like to be the one being made a test case.


Randy


Jim Butterfield wrote:
> 
> Randy Wittchen (wittchen@direct.ca) wrote:
> 
> :                                         ...    Industry Canada has
> : produced a report which looks at potential criminal and civil liability
> : for persons posting to Usenet and website content as well as potential
> : liability for ISP's.  This should be required reading for any officer or
> : director of an ISP.
> 
> Thanks, Randy.  Your comments are useful.  I believe I've already made
> reference to the Industry Canada document.
> 
> The directors of the TFN would be well advised to read it, if they have
> not done so already.  If they find they disagree with it, they should
> seek legal advice, since the document was prepared by persons with
> substantial legal expertise.
> 
> I'm not a director, just a TFN member.  But I sincerely hope that the
> directors, and the TFN, do not run into serious difficulty by adopting
> the belief that "inaction will keep us safe".  This past week, "Jane Doe"
> collected $220,000 from the Toronto Police because they did not take
> action to warn her of a rapist who was active in the region.  Not the
> same thing, of course, but it does point out that inaction will not get
> you off the hook.
> 
>                           --Jim
> 
> : Each freenet's death diminishes me; for I am involved in Freenets :