by Daniel Shap
The Legal Group for the Internet in Canada (LoGIC), 1994
Republished with permission

Note: This article was written in 1994, when computer bulletin boards were the most popular method of electronic information exhange. The principles discussed by the author apply to the Internet, nonetheless.  The version appearing here has been condensed, with the author's approval. It reflects the opinion of the author at the time it was written and does not necessarily reflect his current opinion or the opinion of any of his past or present employers.

Disclaimer: This article is necessarily of a general nature and cannot be regarded as legal advice. Please consult with authorized counsel to determine the possible effects of matters contained in this article in specific situations.

Application of the Canadian Human Rights Act

In Taylor and the Western Guard Party v. Canadian Human Rights Commission and the A.G. Can., [hereinafter Taylor], the Supreme Court of Canada upheld the constitutional validity of s. 13(1) of the Canadian Human Rights Act which provides that it is a discriminatory practice:

"for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunications undertaking within the legislative authority of Parliament, any matter that is likely to expose a person to hatred or contempt by the reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination."

It should be noted that the Act refers to repeated communications and not just a single one. Moreover, unlike the provision in the Criminal Code, the truth is not a defence to the offence set out in s. 13(1). It is also important to note that s. 13(2) specifies that Subsection (1) does not apply in respect of any matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking. Moreover, s. 13(3) exonerates owners or operators of a telecommunication undertaking of any liability under Subsection (1) where their facilities are merely used by other persons for the transmission of the hate propaganda.

Actions taken under the Canadian Human Rights Act can be taken in conjunction with criminal proceedings and proceedings under provincial human rights legislation. The Canadian Human Rights Act provides remedial measures which may be best complimented by the punitive measures of the Criminal Code. Unfortunately, there have been no cases concerning s. 13(1) which have been pursued simultaneously in criminal proceedings. This may be due, in part, to the difficulty of proving the commission of an offence under the Criminal Code.

Section 13(1) seems to apply directly to computer bulletin boards since a number of direct comparisons can be made between those cases involving telephone messaging services and the dissemination of hate messages on computer bulletin boards. As was previously described, all that is needed to access a computer bulletin board is a personal computer, a telephone line and a modem. Once equipped with these devices, any person can connect to a host computer and post or read electronic bulletin board messages. Similarly, anyone with a telephone and an answering machine or a voice mail-box can "post" electronic hate message which can be accessed by persons all over the world.

There are two potential problems with s. 13. Firstly, subsection (2) creates an exemption for any message which is transmitted "in whole or in part" by a broadcasting facility. Consequently, if the message were to somehow be transmitted by a broadcasting facility then the Act would not apply. The rational for this exception is that the Broadcasting Act contains its own distinct provision for dealing with hate messages. While it may seem unlikely that a telephone message would ever be transmitted by a broadcasting facility, the telephone and broadcasting industries in Canada are currently undergoing a massive convergence. To quote a recent government report on the state of convergence in Canada:

"The Canadian telecommunications infrastructure is in a state of transition. New technologies are being deployed and traditional boundaries are blurring between the telephone, cable, television, broadcasting and information service industries...[this calls] into question the existing policies and the regulatory framework applicable to the telecommunications infrastructure...Those calling for a review of existing approaches often focus on the fact that it is becoming increasingly possible for telephone companies and cable television operators to provide the same or similar services..."

As the industries converge, it may become increasingly possible for the accused to play both sides of the regulatory schemes. If the accused can demonstrate that the message was transmitted via a broadcasting facility and a telecommunications facility at one and the same time, it might become unclear which provision, if any, would apply.

However, the real problem associated with convergence is not which regulatory framework will apply, but whether any regulatory framework can and will apply. As the telecommunications and broadcasting industries begin to converge, the boundaries between the two mediums will begin to dissolve and Canadian residents will gain an increasing ability to broadcast directly from their homes. For example, many Canadians have heard promises of video on demand services and video-telephones in the near future. The change in the Canadian economy which is fostering those innovations is the convergence of the telecommunications and broadcasting mediums. The reason for the convergence of the two industries is a fundamental change in the underlying technology.

The transmission of information requires bandwidth and, generally speaking, the greater the amount of information to be transmitted the greater the amount of bandwidth required. With the advent of high speed, mixed coaxial/fiber-optic communications networks throughout Canada, it is rapidly becoming possible to transmit huge amounts of information over a fiber-optic cable 1/4 the width of a human hair. The end result will be that a doctor will be able to transmit a live broadcast of his surgery to another doctor with the same ease that the major broadcasting networks currently broadcast a cable movie.

The implication is that a tremendous power will ultimately be placed in the hands of Canadian citizens. The inhabitants of computer bulletin boards will no longer be restricted to typing out their message on a computer console. Individuals will be able to broadcast their message using the full range of multimedia stimuli, including sound, text and moving images. For example, the CBC currently distributes its 5 p.m. and 8 p.m. daily news broadcasts to the Internet in computer sound format. Denizens of the Internet are able to retrieve the sound files and play them back on their computer. Similarly, a radio talk-show based on the same principle was started last year in the United States. The show, called Geek of the Week, interviews noted leaders and popular figures in the computer world and distributes the "broadcasts" to the Internet in computer sound format. The "listener" retrieves the show at his leisure and plays it back on his computer.

While many Canadians will welcome these innovations, they will not come without a price. As every member of our society becomes a potential broadcaster, it will become increasingly difficult to regulate the content of everyone's transmissions. Indeed, the problem will be identical to the problem of trying to regulate the content of Canadian bulletin boards, only on a much larger scale. Combine this problem with the inter-connectedness to other jurisdictions which is sure to follow and you will have a problem identical to the problem of trying to regulate the Internet, but on an infinitely larger scale.

C. Application of provincial hate and discrimination laws
Section 14(1) of the Saskatchewan Human Rights Code provides that no person shall publish or display in a newspaper, through a television or radio broadcasting station or any other device or in any printed matter or publication or by means of any other medium that he owns or controls, any notice, symbol, emblem, article, statement or other representation which exposes, or tends to expose, to hatred, ridicules, belittles or otherwise affronts the dignity of any person because of his or their race, creed, religion, colour, sex, marital status, disability, age, nationality, ancestry or place of origin. In Saskatchewan Human Rights Commission et al. v. Bell, the Court upheld the constitutional validity of s. 14(1). While they have not yet undergone constitutional scrutiny, it is possible that courts would uphold the validity of the similarly worded Manitoba Human Rights Act as well as the less stringent anti-discrimination laws of the other Provinces.

D. Application of the Broadcasting Act
There are four regulations under the Broadcasting Act which serve to control the promotion of hatred in Canada through the broadcasting medium. Section 3(b) of the Radio Regulations, 1986, s. 3(b) of the Specialty Services Regulations, 1990, s. 5(b) of the Television Broadcasting Regulations, 1987 and s. 3(b) of the Pay Television Regulations, 1990 all prohibit a licensee from broadcasting or distributing programming that contains any abusive comment that when taken in context, tends or is likely to expose an individual or a group or a class of individuals to hatred or contempt on the basis of a discriminatory ground.

The constitutional validity of the above cited regulations has never been challenged under the Charter. However, a series of decisions concerning these measures has been rendered by the Canadian Radio-television and Telecommunications Commission ("CRTC") tribunal.

It is doubtful if the Broadcasting Act, in its present form, can be said to apply to a computer bulletin board. Section 2(1) of the Act defines broadcasting to mean "any transmission of programs..." where programs is further defined as meaning: "...sounds or visual images, or a combination of sounds and visual images, that are intended to inform enlighten or entertain, but does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text." [emphasis added]

At present, computer bulletin boards are defined predominately by the transmission of
alphanumeric text. Although this is slowly changing, as evidenced by the above cited example of the Geek of the Week Internet broadcast, the medium is still largely grounded in text. As computers continue to evolve they will fall increasingly within the scope of the Broadcasting Act, but one is forced to wonders if the Act itself will not have been drastically amended by that time.

A rigorous examination of the status of computerized bulletin boards under the existing Broadcasting Act requires a close examination of the legislation's definitions. The term "broadcasting" is not a term of art in the common or civil law. It has a technical meaning which has been purposely defined in broad and technology-neutral terms to give the CRTC a degree of regulatory flexiblity to ensure that Canada's broadcasting policy is responsive to the needs of the rapidly changing telecommunications sector.

"Broadcasting" under the Act must involve the "transmission of programs, by radio waves or other means of telecommunication for reception by the public by means of a broadcasting receiving apparatus" and does not include "any transmission of programs made solely for display in a public place." "Programs," as was previously noted, are defined under the Act to include sound or visual images that are intended to inform, enlighten or entertain. Putting aside for the moment the previously discussed difficulties associated with trying to describe the exchange of text-based information on computerized bulletin boards as "programs," it is worth noting that such information is transmitted by "other means of telecommunication." Is it, however, transmitted for reception by the public? As was previously discussed, it may be possible to argue under the provisions of the Criminal Code that computerized communications occur in a "public place" and that the sender can have no reasonable expectation of privacy, but is that the same thing as saying that those communications are transmitted "for reception by the public?"

The courts have held that a broadcasting transmission will be "for reception by the public" even where it was not received by the entire population. A transmission will be "for reception by the public" so long as the transmission reaches a portion of that public that is not of a private or domestic character. E-mail is sent from one user to another would not seem to fall within the perview of the Broadcasting Act, but a typed, electronic "conversation" which is made open to the public or publicly posted, computerized bulletin board message might fall within the scope of the legislation. However, it would seem to make a difference whether the messages were exchanged on a small, private bulletin board or on a larger, publicly accessible board, since the latter might be more easily described as a portion of the public.

Are the communications exchanged via computer bulletin board received by a "broadcasting receiving apparatus?" It is important to bear in mind that the Broadcasting Act is defined in technology-neutral terms. Consequently, an arguement could be made that a personal computer, equiped with a modem, should be considered to be a "broadcasting receiving appartus" for the purposes of the Act.

Are the communications exchanged through computer networks "solely for display in a public place?" If a computer bulletin board is to be characterized as being a public place where individuals broadcast their programs for reception by the public, then it could be argued that the users "receive" those broadcast in the privacy of their own homes. In other words, the transmission of the information is occuring in a public arena, but the reception is transpiring in the privacy of the users' homes, much like the reception of television or radio programs. Consequently, it could be argued that computer bulletin boards do not fall within the exception permitted in the Broadcasting Act.

One is forced to wonder whether the same analysis could not be imposed on the pre-recorded, telephone hate messages in the the Khaki case. In fact, telephone messages would seem to be more susceptible to the definitions set out in the Broadcasting Act since they consist of sounds, and are not "predominantly ...alphanumeric text." If a person sets up a voice-mail box with pre-recorded hate messages and invites users to listen to the messages, is he broadcasting within the meaning of the Act. He is transmitting programs by "means of telecommunication." Are they for reception by the public? Can the user's telephone be considered a "broadcasting receiving apparatus"? Intuition tells us that the term "broadcasting" should mean that a "broad" audience is simultaneously exposed to the same program. Does it make a significant difference that the callers have to dial in to the service one at a time? What if the voice-mail was arranged so that a large number of callers could simultaneously hear the same messages? Could a dial-a-porn service which allowed several callers to listen to the same pornographic recording be considered to be broadcasting?

There are, as yet, no answers to these questions. They are a by-product of the previously discussed convergence in the telecommunications and broadcasting industries. As telephones, computers and televisions all begin to share the same medium, it will become increasingly difficult to distinguish them, and as a result, increasingly difficult to regulate them.

Daniel Shap is a lawyer for the law firm Osler, Hoskin & Harcourt. This article reflects the opinion of the author at the time it was written and does not necessarily reflect his current opinion or the opinion of any of his past or present employers.