🚀 go-pugleaf

Randy Wittchen (wittchen@direct.ca) wrote (in part):

 ....
: The case will likely revolve around the issue of whether an ISP is akin
: to a newspaper, TV or radio station which can be liable for publishing
: libelous or defamatory statements (of course subject to various defences
: such as fair comment, etc.) or whether the ISP is like a telephone
: company which is not liable for the content in messages by subscribers. 

It may be of interest to note that a group of prominent Canadian jurists 
have produced a study on how they believe Canadian law will be applied to 
"misuse" of the internet.  I recommend that interested persons read the 
study, "The Cyberspace is not a No Law Land", which may be found at URL
http://strategis.ic.gc.ca/SSG/it03117e.html - I will quote a few excerpts 
below.  Note that the general thrust is this:  The ISP is not responsible 
for such usage UNTIL it is brought to their attention; after that, it is 
believed that they must take action or they will become liable.  Note 
that the study deals with civil (not criminal) liability.

Sorry that the excerpt is fairly long .. it's still a substantial chop 
from the original document, which you can read at the URL above.

		  --Jim

******** EXCERPTS FROM "THE CYBERSPACE IS NOT A NO LAW LAND ********

4.1 The Prohibited Acts
 There are six principal situations which could generate civil
 liability on the Internet:
   -defamation, libel and harm to reputation;
   -invasion of privacy;
   -misuse or failure to protect personal information;
   -communication of erroneous information;
   -violation of secrecy; and
   -unfair competition.

4.1.1 DEFAMATION

At common law, a defamation action is made up of three elements:
 -offending statements made known by someone other than their author;
  the defamation refers to the plaintiff; and
  the statements are false and discredit the plaintiff.

Once proof of publication has been made, it is presumed that the
statements are false, that they were intended to defame and that the
plaintiff suffered damages.

In addition to the other key defences (the statements were true, the
statements were fair comment, the defendant was not motivated by
malice or the defendant is protected by a privilege), the "innocent
dissemination" defence is the most important in the context of the Internet.
Three conditions must be met for this defence to be successful:
 -the defendant was innocent of any knowledge of the libel contained in
   the work he disseminated;
  there was nothing in the work or in the circumstances under which it
   came to him or was disseminated by him which ought to have lead him to
   suppose that it contained a libel; and
  work was disseminated without any negligence.

The situation is essentially the same under Qu�bec civil law although
the analysis proceeds differently.

4.1.2 INVASION OF PRIVACY

Under Canadian common law, unlike the situation in the United States,
there is no recognition as such of the right to privacy. The Supreme
Court of Canada did recognize, starting in 1982, that the right to
privacy was protected to a certain degree by the Canadian Charter of
Rights and Freedoms, at least in situations in which there was a
legitimate expectation of privacy.

Four provinces have adopted Privacy Acts in Canada (Saskatchewan,
Manitoba, Newfoundland and British Columbia) under which invasion of
privacy is a tort for which an action can be instituted, without proof
of damage, against any person who knowingly and wrongfully violates
the privacy of another person. In general, these statutes are
expressed in general terms and would apply to messages travelling over
the Internet, with the possible exception of the Manitoba Act which
covers only messages sent over the telephone.

In general, a publication is not an invasion of privacy under
circumstances in which (in addition to other available defences) there
is reasonable justification for believing that it contains information
which is in the public interest, that it is fair comment on a matter
of public interest or that it is privileged, in accordance with the
rules relating to defamation.

In Qu�bec, privacy is protected by the provisions of Articles 35 to 41
of the Qu�bec Civil Code which protect the right to privacy and respect
for one's reputation.

Under both the common law and civil law regimes, privacy cannot be
recognized as absolute. The limits most likely to be encountered in
the Internet context are those following from consent, freedom of
expression, freedom of the press and other means of communication,
maintenance of public order, public interest in information and the
absence of a reasonable expectation of privacy. Since electronic
environments are made up, like physical environments, of public and
private places, the reasonable expectation of privacy could vary
depending on the context in which the user is situated. A US court has
even established that there could be no reasonable expectation of
privacy in e-mail communications made by an employee to his supervisor
over the company's e-mail system notwithstanding any assurances that
such communications would not be intercepted by management!

4.1.3 PROTECTION OF PERSONAL INFORMATION


 There is a distinction between protection of the right to privacy and
protection of personal information. The right to privacy has a greater
scope thanncept of protection of personal information. This nuance is
important on the Internet especially when operators of Websites and
on-line services start assembling information, sometimes
without the knowledge of their users and subscribers, about the
behaviour of those persons accessing such sites and services. In
Canada, only the Province of Qu�bec has adopted a legal regime on the
gathering of personal information and the making of files on other
people. These are contained in Sections 37 to 41 of the Qu�bec Civil
Code and these general provisions are complemented by a specific
statute governing the gathering, management and communication of
personal information by enterprises: an Act Respecting the Protection
of Personal Information in the Private Sector. These provisions would
apply even if the Internet is used to gather such personal information.

4.1.4 COMMUNICATION OF ERRONEOUS INFORMATION

At common law and under the Qu�bec civil law, a person communicating
information must be prudent and diligent to verify that the
information provided is not erroneous especially in circumstances in
which a reasonable person would know that he/she was being trusted by
the person to whom the information is provided. In the context of the
Internet, this is especially true of the on-line service providers and
operators of data banks. Operators of services intended for the
general public, with no prior contract between the information
provider and the user, have an obligation to be prudent and diligent
when they transmit information. If the operator is negligent and
transmits erroneous information, it could be held liable for damages.

In cases where the information is provided by professional data banks,
the courts have demonstrated a tendency to be more severe in imposing
liability standards, even going so far as to impose no-faultliability.

15 VIOLATION OF SECRECY

The study does not cover the whole field of the law relating to trade
secrets and fiduciary obligations. However, it is well established,
both at common law and under the Qu�bec civil law, that violation of
secrecy, whether made with the help of the Internet or through more
traditional means, is subject to sanction.

4.1.6 UNFAIR COMPETITION


 Competition is legitimate under Canada�s economic and legal system.
However, if it becomes deceitful or otherwise ceases to be fair and
honest, it is actionable both at civil law and under common law,
regardless of whether such activities take place on the Internet or in
more traditional "locations".

4.1 Who is responsible
The person who performs the illegal act is responsible for resulting 
damages. However, the Internet context raises important questions  
concerning the liability of all those who intervene in the Internet  
transmission chain of communication. The responsibility of these
persons depends on their actual activities not on who they are. The
best way to analyse the situation is to use metaphors comparing the 
conduct of the persons involved in the Internet content transmission
chain with those of traditional activities, even if those activities
are described in reference to the name of a person (e.g. a publisher)
rather than with the action itself. There are essentially seven     
metaphors:
   -publisher;
   -broadcaster;
   -re-broadcaster;
   -librarian, bookstore or news-stand;-re-transmitter;
   -space owner; and
   -common carrier

4.2.1 PUBLISHER

 A publisher communicates information to third parties knowing that
the information will be read, seen or heard. Voluntary publication
assumes knowledge of the content of the information transmitted. In
the Internet context, publication can result from the transmission of
files, from electronic discussions or from making available
information in files. In all these situations, the decision to publish
belongs to the publisher. From such controlling power follows
liability for the transmission of harmful information. Thus, if a
non-line service provider exercises a degree of control over the
information, it is reputed to be acting as a publisher. It may be that
where control is not of an editorial nature but of a technical nature,
or in order to prevent a discussion group from overflowing out of the
theme it is assigned, the site operator would then not be
automatically considered to be a publisher since it would exercise no
editorial control per se.

2 BROADCASTER

When they are free to broadcast, broadcasters are generally
considered to be the publishers of the statements they transmit and
thus have the same standards of liability as a publisher. Broadcaster
liability can also result from harmful statements made by members of
the public acting in their own names. An exception to this occurs if
the statements are made "live" unless the broadcaster endorses them or
the statements are made with the broadcaster�s prior knowledge or if
the broadcaster was shown to be negligent.

4.2.3 RE-BROADCASTER

 A re-broadcaster circulates material published by others. In
principle, a re-broadcaster is liable to the same extent as it would
have been if it had itself published the material in the first place.
Its liability, however, will be determined by its capability to verify
the content of the information broadcast.

4.2.4 LIBRARIAN

 Librarians, book sellers and operators of newsstands are distributors
 of information. Contrary to a re-broadcaster which repeats the
6information, these participants in the information distribution chain
only deliver or provide the information. Distributors do not control
content of the information they transmit. They are, therefore, not
liable if it is harmful. However, when made aware of the harmful
nature of the information, distributors have the duty to withdraw it.
Failing to do so, they can be held liable.

The same holds true on the Internet. An operator of an on-line
service, a Web site, a BBS, if it is not moderated, could be in the
same situation. It has no control over the information circulating on
the system and thus cannot know or have reason to know of the harmful
nature of the messages. For these reasons, it is usually not liable.

However, once made aware of the harmful nature of the information,
there is an obligation to take all necessary measures to prevent
circulation of the harmful content or to have it withdrawn.

4.2.5 RE-TRANSMITTER

Programming distributed by cable television distribution systems,
direct satellite to home broadcasting and the like do not originate
with these operators which do not modify the content of the programs
in any of the distributed signals. In these situations,
re-transmitters are not liable for the content they re-transmit.

4.2.6 SPACE OWNER

 In general, under Canadian law, space owners are not liable for the
activities of their tenants or guests unless they are aware of the
illegal activities of these people. However, once an owner is informed
of these illegal activities, it has an obligation to act. Likewise,
Internet site operators may not be initially liable for the content
posted or transmitted by their users, but they have an obligation to
withdraw the information once made aware that the information is
illegal.The true debate for "librarians", " re-transmitters" and "space
owners" is to determine at what point the obligation to withdraw
illegal material arises: is it when they are informed by a private
complainant or an authority (including police forces) or only after a
court decision pronounces that the material is illegal. We submit that
this will depend on the circumstances of every case but that the
liability of any intermediary would be lower if it can be demonstrated
that it acted with due diligence in the circumstances.

4.2.7 COMMON CARRIER

 Contrary to publishers and distributors, common carriers have the
obligation to carry any message and may not discriminate against the
content of the message nor against the person who sends it. Since they
act only as a conduit for transporting information from one site to
another, common carriers have in principle been freed of liability for
the content provided by their users and subscribers. It is generally
believed that when acting as common carriers, both the
telecommunications carriers and the Internet access providers would
enjoy the same level of immunity on the Internet. This depends, of
course, on the activity actually conducted by the carrier and access
provider.

In both cases, however, once made aware that information continuing to
reside on the network is harmful, the telecommunications common
carrier and the access provider would have the same obligation as
other operators to withdraw such information (if they have the legal
power to do so).

4.3 Relations between liability and control of information

 An access provider, a system operator or any other actor in the
Internet content transmission chain can, depending on circumstances,
have different degrees of control over information. Depending on the
degree of control effectively exercised, their liability would be
lesser or greater. If such a distributor has physical control over the
material published, it has the duty to make reasonable inquiries into
the accuracy of statements alleging that such material may be
potentially harmful. If such inquiries lead to the conclusion that the
material would indeed be harmful, it has the obligation to withdraw it
from circulation.  If it fails to do so, it may be held liable.

The longevity of the information also has a direct influence on the
possibility of exercising control. Liability will not be evaluated in
the same way for information that is stable than for information which
varies continuously. It is, in many cases, virtually impossible to
revise the content of variable information or, once transmitted, to
stop its circulation before damage is suffered. The liability of an
operator will therefore be greater with respect to stable information
than with continuously variable information.