🚀 go-pugleaf

Greg Goss wrote:
> 
> cjs@cynic.portal.ca (Curt Sampson) wrote:
> 
> >In article <34B577C3.68B1@capcollege.bc.ca>,
> >Theseus, Duke of Athens <NOSPAMjcarlisl@capcollege.bc.ca> wrote:
> >
> >>Free speech must be an absolute right....
> >
> >I don't see how Jason's rights have been violated. The VCN did not
> >stop him from saying what the wanted to say; they simply stopped
> >him from saying it using their resources. Or do you now support
> >some sort of law to force those with publishing ability to finance
> >the publishing of others' views?
> >
> >>Thats why the 1st ammendment to the U.S. constitution is
> >>so important. It is a safeguard against tyranny.  Too bad we don't have
> >>the same rights here.
> >
> >Ah, another completely clueless one. Perhaps you should read this
> >ammendment before you start spouting off about it. You'll note that
> >it starts, `Congress shall pass no law....' The first ammendment
> >applies *only* to the government, and would have no bearing on this
> >case.
> 
> His rights were not abridged by VCN cutting him.  Obviously, because
> he's here now.  What worries me is that someone said that an ISP is a
> party to a libel suit at the moment.  If ISP's are responsible for the
> content of Usenet, then we have a more insidious threat to free speech
> than simple "We don't want to associate with Jason Black" (freedom of
> association for VCN).  If an ISP is required to do more than identify
> a userid to authoritied searching for a libel defendant then I worry
> for free speech.  In my opinion, freedom of association means that VCN
> can cut someone they don't like, but a legal liability for ISP's is a
> real threat to free speech.

Hi Greg

Your observation that freedom of speech is not at issue here is spot
on.  The law suit to which you refer is quite interesting.  I first
heard of it several months back when one of the principals in a
Toronto-based(?) ISP posted to the can.legal newsgroup indicating that
the ISP was being sued for publishing a libel.

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. 
An ISP may fall in between the two so that there may be circumstances
where liability might attach.  For example an ISP has rules against
propagating hate propaganda and after receiving complaints about a
subscriber, chooses to do nothing then it is possible that they may be
fixed with some liability.

In the VCN case after reviewing the postings of Black, the ISP made the
decision to cut off the acccount.  In the circumstances a prudent action
to take to limit or mitigate potential liablity and in no way an
infringement of his constitutionally protected freedom of speech. 

While one must be careful not to import the entire case law from the US
regarding "First Amendment Rights", the portion quoted above has
application to this set of circumstances.  The "Canadian Charter of
Rights and Freedoms" (being "Schedule B" to the "Constitution Act,1982"
provides under Section 2 - "Fundamental Freedoms":

2. Everyone has the following fundamental freedoms:
(b)freedom of thought belief, opinion and expression, including freedom
of the press and other media of expression;

This is subject to Section 1 which provides:

1. The "Canadian Charter of Rights and Freedoms" guarantees the rights
and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and
democratic society.

While the US does not have such a specific limiting provision in its
"Bill of Rights" the US Supreme Court has adopted virtually the same
test in balancing interests and section 1 of the Charter tracks such
language. In one well-known observation (I believe by Justice Holmes of
the US Supreme Court) it is noted that one's freedom of speech does not
extend to shouting fire in a crowded theatre.  To similar effect was the
observation that a person's freedom to swing his fist is limited to
where another person's nose begins.  Thus in the US as in Canada freedom
of speech is not an absolute but subject to various criminal and civil
restrictions. 

While the US "Bill of Rights" states that Congress may not pass laws to
abrogate freedom of speech (extended by a later amendment to include
state legislatures), the "Canadian Charter of Rights and Freedoms"  at
section 32 provides that it applies 

(a) to the Parliament and government of Canada in respect of all matters
within the authorityof Parliament including all matters relating to the
Yukon Territory and Northwest Territories; and
(b)to the legislature and governement of each province in respect of all
matters within the authority of the legislature of each province. 

THe Charter does not apply to non-governemntal agencies or actions. 
Thus VCN not being a federal or provincial legislature or government nor
a creature of same is not subject to Charter provisions.  

It is open to any person to set up their own media outlets or ISP's and
publish whatever they wish. However the publications may contravene
criminal statutes or create a civil liability and lead to liability or
bans on such publication.  Simply because you post something on a
newsgroup or publish it to a web page does not insulate the writer or
the web page from criminal or civil liablity.  In the latter case since
a web page is in fact "published" under the auspices of a person or
company, the laws regarding publication of libel which catches other
publishers would most likely apply as well.  Whether or not such
liability would extend to an ISP that is simply a carrier is the
interesting question.  


Randy Wittchen