🚀 go-pugleaf

Brian Allardice wrote:
> 
> In article <34B96F84.2C7F@direct.ca>, Randy Wittchen <wittchen@direct.ca> says:
> 
> >Another interesting issue would be web page content.  The person or
> >group publishing the web page IMHO would be liable under the same civil
> >and criminal principles as any other publisher.  Again an ISP on the
> >above reasoning should only be liable once it becomes aware and then
> >fails to do anything.
> 
> But, as noted in the previous post, what constitutes "becoming aware"?
> 
> A nut case complaint?  Police acting on their own authority (Hello, hello
> hello, what's this indecent/blasphemous/seditious stuff then)?
> Or a court order.  I suspect the court order would be preferred by most,
> preserving both "the law" yet defending against arbitrary action by the
> authorities, let alone removing everything someone complains about.....
> 
> Cheers,
> dba

Hi Brian

OOPS!!!! hit the send button prematurely ("premature propagation"??).


"Becoming aware" will likely be defined by the courts as the trier of
fact in any particular case.  I suspect that this would be a fact driven
inquiry and based upon the particular circumstances.  However if several
complaints have been lodged with an ISP regarding the content of certain
posts and the potential illegality or civil liability is pointed out and
the ISP were to take no action, a court may well hold that the ISP
became aware.  This concept is only theoretical at this point although a
recent post by Jim Butterfield on this thread indicated that some recent
legal analysis adopts such a test for liability of the ISP.

Police always act on their own authority to investigate potential
criminal offenses with a view to laying charges.  In B.C. we have a
"charge approval" process whereby Crown Counsel reviews the charges
before they are laid and approves those supported by admissible evidence
which will result in a substantial likelihood of conviction.  In other
jurisdictions the police lay charges without such a process which often
leads to over-charging and increases the likelihood of a person
plea-bargaining to an offense which would not likely be proven at trial
because some of the weak charges have a potentially long sentence.  The
police will only investigate criminal libel and the hate propaganda and
genocide offenses. These latter offenses  may only be laid with the
consent of the Attorney General and apply to the laying of charges by
both police and any citizen.

Any person, including a "nut case" may swear out an information before a
Justice of the Peace alleging an indictable offense such as defamatory
libel or publishing the same has been committed.  This does not require
the approval of anyone.  Similarly any person could bring a civil suit
for libel or slander and publication and so name the ISP as well as the
poster.  It may be possible to have the charges dismissed or be
acquitted or have the suit dismissed or be found not liable, but you
will have expended time and money to do this.  As an ISP, why would you
take the chance of conviction or finding of liability and incur the
expense?

It is a basic tenet of our legal system that the courts are not in the
business of issuing orders defining the law until such time as the
matter has been brought before them by charge or suit.  The courts tell
us what the law is and affix liability and punishment only after a
trial.  This would be cold comfort to an ISP which was found liable or
convicted.  In such circumstances the ISP may well escape liability or
conviction or have any damages reduced to a nominal amount or punishment
suspended where the ISP can demonstrate that itn took action to
disassociate itself as soon as it became aware of the potential
liability.  (Note there are provisions for reference cases to provincial
Courts of Appeal and the Supreme Court of Canada but these are only
rarely used and for strictly legal questions of overwhelming national
import such  as the recent reference to the SCC on Quebec's right to
secede).

Randy Wittchen