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Re: [hr-wsis] Canadian Human Rights Tribunal Issues Internet Hate Decision
At 03:17 13/03/2006, you wrote:
Second, the Tribunal found against a provider of Web hosting services
despite the presence of Section 13(3) which provides that "an owner or
operator of a telecommunication undertaking through which hate messages
are communicated, is not in breach of the Act by reason only that its
facilities were used by other persons for the transmission of the
material." The Tribunal concluded that by playing a role in soliciting
and actively promoting hate content (a significant percentage of hosted
sites focused on race issues), the owner of the hosting service did more
than just provide the service. That interpretation is noteworthy as it
obviously reads limits into the telecommunications exemption section by
not treating it as a blanket immunity provision for Internet providers.
The reason why the hosting company was involved as a party is because one
of its owners was the owner of one of the disputed websites. So this does
not establish a general principle in terms of ISP liability.
Third, I found it interesting that the Web hosting services established
the servers in the U.S. which the owner admitted was designed to avoid
Canadian law. That did not work and serves as yet another example of
why the location of the server is of limited importance in an Internet
jurisdictional analysis.
Since this is one of several Internet hate cases currently before the
Tribunal or the Human Rights Commission, it suggests that the Act may
emerge as the leading tool to combat Internet hate in Canada.
Please note that it takes many many years for the Tribunal to conclude its
cases and so far its impact has been low. The whole Zundel saga showed this
prior to this and a few other cases. The law itself is not the problem, the
problem is the slow judicial process as well as the technical issues
involved such as moving servers outside the jurisdiction. In Zundel's case
the server was moved to Texas and the decision of the Tribunal was ignored.
So enforceability of the decisions of the Tribunal remains a problem in
such scenarios.
All the best,
Yaman
Dr. Yaman Akdeniz
Director, Cyber-Rights & Cyber-Liberties
c/o School of Law,
University of Leeds,
Leeds LS2 9JT
United Kingdom
email: lawya@cyber-rights.org
Tel: +44 (0)7798 865116
Fax: +44 (0)7092199011
www: http://www.cyber-rights.org / http://www.cyber-rights.net
