International Law

R. v. Noble

An interesting application of hate law legislation to the Internet. The accused was running some kind of neo-nazi white supremacy website. Was this promoting hatred by communicating statements other than in private conversation?

Yes.

The use of the Internet has in many respects transformed the world of communications and the word itself. People who use the Internet and those capable of utilizing websites on the Internet are aware of the reach of this new form of media. In an article published in (2000), 49 Duke L.J., 855, Lyrissa Barnett Lidsky discussed the scope of the Internet. In the article Silencing John Doe: Defamation and Discourse in Cyberspace, the author wrote that:

“Once a message enters cyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forum frequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again.”

This article was quoted by the majority of the Ontario Court of Appeal in Barrick Gold Corp. v. Lopehandia et al (2004), 239 D.L.R. (4th) 577 and in Canada (Human Rights Commission) v. Winnicki, [2006] 3 F.C.R. 446. The second of these was a motion for an interlocutory injunction before the case was heard by the Canadian Human Rights Tribunal. In its decision on the test for granting an interlocutory injunction, the court, at paragraph 32, made the following observation about Internet communications:

“One must remember, however, that the hate messages considered in that case were communicated through telephone hot lines, and not by way of the Internet as in the present case. . . This new form of communication is much more easily accessible and pervasive than any previous telecommunication medium. The content of a Web site can also easily be mirrored and replicated ad infinitum, with virtually no control by the originator. This potential of the Internet for wreaking havoc has been well captured by Lyrissa Barnett Lidsky . . .”

It is possible within the present state of technology and software to create levels of protection and security that restrict access to certain areas of computers and/or websites. It is not difficult to conceive of precautions being taken which restrict access and bring an individual within a level of security which would potentially allow a person to consider his communications to be private.

In the present case, no such precautions were taken and no issue of accident or negligence arises. The communications and postings in this case were wide open and accessible to anyone who had the technology and chose to look. In my view, the content and circumstances here do not bring these communications within the private conversation exception.

Full post as published by Criminal Review on February 25, 2008 (boomark / email).