🚀 go-pugleaf

Larry Phillips wrote:
> 
> Randy Wittchen wrote:
> 
> > "Blasphemous Libel", "Defamatory Libel", "Seditious Libel"
> > "Hate Propaganda" and "Advocating Genocide"
> 
> Wanna stick to the subject?

Hi Larry

I believe I was sticking to the subject.  

It was incorrectly asserted that libel and slander were not criminal
offenses when someone (Arlo I believe) referred to them as offenses. 
This arose in the context of whether or not the ISP should have
cancelled an account when the content of certain postings was brought to
its attention.  The question asked by Jason Black was whether or not it
was right for the ISP to cancel his account based upon his past posts
which the ISP apprehended to be potential grounds for liability on its
part.

Defamatory statements may be oral (the tort of slander) or written (the
tort of libel) at common law and civil liability flows also from
publishing (i.e. repeating orally or in writing) such defamatory
statements.  The Criminal Code takes the common law in this area and
codifies it into offenses which can result in prosecution.  The Criminal
Code sections which I quoted are examples of defamatory statements,
publication and defenses which have taken the common law in this area
and affixed criminal sanctions often adopting the words from cases at
common law to define the offense.  This is not uncommon as a similar
process occurred with the common law torts of assault and battery.

Additionally a more generic species of defamation was made an offense
aimed at groups referrred to as hate propaganda and advocating
genocide.  At common law liability for defamatory statements was aimed
at protecting the reputation of the individual.  This was carried into
the Criminal Code via the offenses of blasphemous libel and defamatory
libel which are often referred to by the courts as criminal libel to
distinguish them from the common law torts.  Parliament believed that it
was not sufficient to prevent only defamation of individuals so the hate
propaganda and advocating or promoting genocide provisions were enacted.
In these offenses the target of the defamation is not an individual but
an "indentifiable group" defined as "any section of the public
distinguished by colour, race, religion or ethnic origin".  

BTW proceedings under the genocide and hate propaganda sections can only
be instituted with the consent of the Attorney-General. Under the other
Criminal Code sections dealing with defamatory statements, anyone may
lay a criminal information without the need for the consent of the A-G
and thus one of the complainants could very well have sworn out an
information naming Black and the ISP under the Criminal Code provisions
regarding criminal libel or filed a civil suit against both.  Assuming
that the ISP did not advocate the positions that Black was taking,
disassocoating itself from him is the intelligent thing to do in the
circumstances given the uncertain state of the law in this area.      

Once the ISP became aware of the content of Black's posts which I
understand came as a result of complaints, the ISP was faced with a
decision.  The ISP might potentially be held liable at both criminal and
common law for the content of a subscriber's postings.  Whether or not
in the end result the ISP would have been liable or prosecuted is an
open question. This matter is currently before the courts in another
case where a Toronto ISP has been sued for the postings of a
subscriber.  The ISP being a private (i.e non-governemental)
organization then had to decide if it wished to expose itself to
possible liablity or to ameliorate or mitigate its potential liablity by
revoking the account.  It adopted what I beleive to be a prudent course
given the current state of the law and cancelled the account.  Private
organizations and individuals generally act in their own economic
self-interests and there is no requirement that an ISP act
altruistically as if it were a member of the fourth estate espousing
freedom of expression.


Randy Wittchen