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.

Can the owners/operators legally limit the speech on the boards?

One question which has arisen is whether the owners/operators of computerized bulletin boards are free to restrict the expression of their members beyond the limitations prescribed by Canadian law.

While the users of private bulletin boards my be restricted by the terms of their service agreement, a growing number of users are connecting to government sponsored bulletin boards. For example, community-based, free-access networks, called FreeNets, are up and running in Ottawa, Victoria and Trail B.C., and Free-Net committees are organinzing in 16 other Canadian cities. Can the sysops of these networks seek to police the expressions of the users of these systems?

In the case of Committee for the Commonwealth of Canada v. Canada, [1991] S.C.J. No. 3 [hereinafter Commonwealth] the Supreme Court of Canada held that the government's right of ownership, as a consequence of its special nature, cannot of itself authorize an infringement of the freedom guaranteed by s. 2(b) of the Charter. When a person claims that his freedom of expression was infringed while he was trying to express himself in a place owned by the government, the interests at issue must be examined, namely the interest of the individual wishing to express himself in a place suitable for such expression and the interest of the government, which must ensure effective operation of the place owned by it. An individual will thus only be free to communicate in such a place if the form of expression he uses is compatible with the principal function or intended purpose of the place and does not have the effect of depriving the citizens as a whole of the effective operation of government services and undertakings.

In the case of Peterborough (City) v. Ramsden, [1993] 2 S.C.R. 1084 [hereinafter Ramsden] the Supreme Court of Canada held a municipal by-law, prohibiting all postering on public property to be constituionally invalid. The Court decided that postering on public property, including utility poles, clearly fosters political and social decision-making. No persuasive distinction existed between using public space for leaflet distribution and using public property for the display of posters. The question was not whether or how the speaker used the forum, but whether that use of the forum either furthered the values underlying the constitutional protection of freedom of expression or was compatible with the primary function of the property.

Following the decisions in Ramsden and Commonwealth, it could be argued that the operators of a government sponsored, computer bulletin board could not restrict the freedom of expression of the users beyond the limits established in the Canadian law. The primary function of a computer bulletin board is to exchange information. Consequently, it could not be argued that the user's expressions were incompatible with the primary purpose of the place.

Conclusion

As the world becomes a smaller place due, in large part, to the advent of digital technology, governments will face an increasingly difficult task in trying to regulate the expressions of their constituents. Although Canadian society has decided what forms of expression it is willing to tolerate and what forms it will ban, other countries may possess differing standards. As a result, Canadian residents will find themselves increasingly faced with the opportunity to circumvent the will of the legislator by employing outlets for their expression which are located beyond the physical boundaries of the country. Countries will be forced to collaborate more in an effort to adopt an international standard of human rights acceptable to all. This internationalization of the law is a by-product of the growing inter-connectedness of individuals who are geographically dispersed but physically connected. Canada will face many difficult challenges in the coming years in its attempts to regulate expression, but as an active member of the international community, Canada is well-suited to promote the adoption of a universal system of human rights.

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.