Canada's laws apply online

Canada's government has declared in a new report that no "massive legislative intervention" is needed when applying the country's existing laws to the Net, but that doesn't mean Canadian citizens and service providers are safe from prosecution for online crimes.

On the contrary, Canada's report concludes that most of the provisions in its laws concerning obscenity, child pornography, hate speech, and trademark infringement automatically apply to the Net. This conclusion puts the country's online billboard, chat, and Web site operators in the hot seat concerning liability issues, a pattern some U.S. civil liberties groups say is dangerous for everyone who uses the global medium.

The Internet Content-Related Liability Study was commissioned by Industry Canada , the government's key department in charge of national economic issues. The department's main function is to provide policy advice, industry sector information, and business services.

According to a study released last month by Nielsen Media Research and CommerceNet, 23 percent of all persons over 16 years of age in the United States and Canada have used the Internet during the past month and still have access today. A previous study in fall 1995 showed that only 10 percent had used the Internet during the three months prior to the survey.

Like legislatures in the United States and elsewhere, Canada is also grappling with issues such as whether to prosecute parties who may "unknowingly" commit or assist criminal acts on the Net. Many Internet service providers, for example, often don't know when customers send hate email or obscene messages.

"In the situations examined under the Canadian legal system, we have found that the most difficult cases are not those of direct infringement (of privacy, intellectual property, criminal code, and so on) but those of indirect infringement," the report states.

One finding of the study says the operator of a bulletin board, Web site, newsgroup, mailing list, or online service could be held liable for publication or distribution of obscene material, especially if the outlet is moderated. The moderator could also be held liable. An obscene publication is defined as "any publication whose dominant characteristic is the undue exploitation of sex, or of sex together with crime, horror, cruelty, or violence. Whether a publication's dominant theme is the undue exploitation of sex is determined by reference to a 'community standards test' within the context of the work as a whole."

American civil rights groups say although U.S. citizens couldn't be prosecuted under Canada's laws, the implications could still be chilling.

"It is possible that some prosecutors in this country could say, 'I wonder if we could find enough similarities in the United States to apply the same liabilities,'" said Stanton McCandlish, director of the Electronic Frontier Foundation. "Whose morality wins in an online global marketplace? Canadian ISPs need to push for changes in these laws for [the sake of] everyone online."

The Canadian report's authors admit, however, that prosecuting online crimes is a new ball game.

"The volatile nature of the many activities conducted on the Internet, coupled with the possibility for participants to remain anonymous and the international aspect of most Internet 'transactions,' make it very difficult to detect illegal activities and to enforce existing laws," the report states. "In our opinion, these enforcement difficulties in themselves do not create a need for the amendment of existing national laws."

It goes on to say: "On the Internet, for a given factual situation, different standards may apply, such as different burden of proof standards between civil and criminal law, different community standards between different parts of the country for certain obscenity-related situations, different legal standards between civil and common law."

A similar argument was made by lawyers fighting the U.S. federal law, the Communications Decency Act, before the Supreme Court last month. The American Library Association and the American Civil Liberties Union say existing laws, especially if they infringe on free speech, should not be automatically applied to the Net.