(Ron Hay is a media and entertainment lawyer and a member of the KNOWlaw Group of the Toronto law firm of McMillan Binch. This article was prepared with the assistance of Malcolm J. Andrade.)

Terrorist bombs, suicide made easy, hate propaganda and child pornography – you’ve guessed it, you’re looking at the dark side of the Internet.

In the aftermath of the Oklahoma City bombing, it’s of more than passing concern that detailed information is available on the Net to assist and instruct those sinister-minded individuals out there on how to construct do-it-yourself pipe bombs.

If you look just a bit further, you’ll even find a Canadian Internet Service known as Deathnet, which provides an explicit guide on how to commit suicide using gassing, plastic bags and barbiturates.

On the one hand, it’s true that the dark side of the Net only constitutes a small proportion of the vast amount of free flowing information in cyberspace.

However, there are still legitimate fears that certain materials could be dangerous, if placed in the wrong hands – especially when put in the context of an alarming teen-suicide rate, the resurgence of hate-driven activities against minority groups, and the international problem of child-sexual exploitation.

This column explores the controversial issue of censorship in cyberspace, and it necessarily revisits the classic free speech debate, a debate that is not new to many artists and professionals in the entertainment business.

The ‘C’ word

Censorship is inevitably an issue of heated debate in a modern society that places enormous value upon freedom of expression, a fundamental freedom enshrined in our Charter of Rights and Freedoms.

Censorship advocates are concerned there is little if any control over who supplies the material on the Net, the nature of the material, and who is allowed to view it.

Meanwhile, proponents of free speech argue against state restrictions on the free flow of information in cyberspace, contending that different views should be allowed to be voiced and challenged in an open ‘marketplace of ideas.’

However, Canada, like many other democratic countries, has found it necessary to regulate certain types of harmful expression including obscene materials and hate propaganda for the protection of vulnerable members of society.

In Canada, the recent report of the federal Information Highway Advisory Council calls for a less controversial Internet Code of Ethics and an international agreement to control ‘offensive communication’ on the Net.

An international agreement is important to deal with the online dissemination of hate by individuals and groups who find the Net to be a cheap, easy and convenient platform to express their views.

For example, the online magazine of the white supremacist Heritage Front is found on a Web server in Florida – this means that Canada’s law against hate propaganda does not apply, since it governs dissemination in this country rather than mere possession of such materials.

Meanwhile, in June, the u.s. Senate passed the Communications Decency Act, which proposes a fine of $100,000 or a two-year jail term on anyone who transmits ‘obscene, lewd, lascivious, filthy or indecent’ material using a telecommunications device such as the Internet.

Proponents of the bill can bolster their case by pointing to charges filed last August against two employees of a top-secret nuclear weapons laboratory, who allegedly stored more than 90,000 pornographic pictures on a lab computer in Alameda County, Calif.

The hard-core materials were discovered after people outside the laboratory were given direct access to the photos through the Internet.

Not surprisingly, the Senate-sponsored bill, like the recent mandatory television ratings system legislation in the u.s., has civil liberties organizations up in arms as the debate rages on. Earlier this month, the House of Representatives overwhelmingly approved the ‘Internet Freedom and Family Empowerment’ amendment, an amendment which prohibits Internet censorship by government. We must wait to see how the final law will read.

Private policing

of the Net

The main alternative to censorship is private policing on the Net.

For example, some u.s. Internet providers such as Prodigy employ a product known as ‘George Carlin’ software to edit materials for certain offensive words and phrases.

On occasion, some service providers have also been known to turf out users who fail to meet the standards set out in their service agreements – such standards might prohibit racial or ethnic slurs, hate literature, and obscene materials.

The reality, however, is that Internet providers will be increasingly wary of assuming responsibility for monitoring the content posted by their users, especially after the recent u.s. court decision that held Prodigy liable for defamatory statements posted by one of its users – Prodigy’s active role in monitoring user content made it appear more as a publisher, rather than merely as a common carrier in the eyes of the court.

It is easy enough to suggest that children should be supervised by parents while on the Net, rather than being allowed to roam unguided in potentially harmful territory.

However, as in the case of television, many parents permit their children to surf the Net without first vetting its mature content.

It is also often the case that computer-literate children know more about the twists and turns of the Net than their parents.

Perhaps one option for parents comes in the form ‘Surfwatch,’ a new software product that will, reportedly, soon be available in Canada to assist in filtering out some of the more offensive material.

Last year, the University of Waterloo, in Waterloo, Ont., in a move uncharacteristic of a pro-speech institution, banned five newsgroups from its campus that contained explicit sexual images and violent porn because of its concern that the materials were in violation of national obscenity laws.

The only problem is that there are still numerous newsgroups housing pornographic materials that were not caught by the university ban and new ones, which have since found a home on the Net.

Cyberseries: What’s next?

The Net is, indeed, a reflection of the good and the bad in this world.

Censorship might well turn out to be a futile exercise given the free flowing nature of information in cyberspace, the difficulty of user detection, the jurisdictional dilemma, and the likely resistance of aggressive newsgroup users.

Stay tuned for the next column in our series on law and the Internet, in which we will explore the issue of copyright in cyberspace.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on any particular situation.)