Friday, August 25, 2006

Le CRTC rejette une première demande de censure Internet

Le 22 août 2006, Richard Warman, un avocat ontarien a déposé auprès du CRTC une demande visant à ce que des fournisseurs de service internet canadiens bloquent le contenu de sites Web américains appartenant à un néo-nazi promouvant son assassinat ainsi que, plus généralement, celui de tous les juifs... Me Warman, lui-même juif, a eu l'odieux de faire emprisonner Tomasz Winnicki pour outrage au tribunal pour avoir continué, suite à une injonction le lui interdisant, à véhiculer des messages haineux sur l'Internet. Depuis, l'avocat est menacé de mort sur différents sites web.
Mark Goldberg, un collègue bloggeur, a participé à la demande avec le Congrès Juif Canadien (CJC) et publiait il y a 2 jours sur son blog un billet (Blocking content) expliquant la démarche. Ce billet avait été repris par des noms connus de la blogosphère, Michael Geist et Rob Hyndman, qui verbalisaient leurs craintes de voir l'acceptation d'une telle requête affecter la liberté d'expression à long terme. Rob Hyndman émettait des réserves, que je partage, à l'égard de l'habileté de l'État à s'immiscer dans le spectre de la liberté d'expression, en ces termes:

The question of the state’s proper role in suppressing speech of any kind - even the biliously hateful content at issue in this case - will not be settled here. But I have always been profoundly troubled by any opportunity on the state’s part to insert itself between citizen and idea. And I have no faith in the ability of the CRTC, or any other state entity short of an appellate court, to make sensible judgments about the proper scope of state intervention in these matters.

De toute façon, à mon humble avis, cette affaire ne relève pas du CRTC mais plutôt de la police et de la Couronne. En effet, en matière de propagande haineuse et de menace de mort, la Loi est fort claire et, judicieusement, le Législateur n'a pas prévu la censure comme sanction.
Le problème dans cette affaire provient surtout du fait que Me Warman se trouve de l'autre côté de la frontière et désirerait, avec raison, que les lois criminels canadiennes s'appliquent à l'auteur du site Web américain. Malheureusement, ce n'est pas le cas. Par contre, je dois admettre qu'il est astucieux d'avoir fait appel à l'article 36 de la Loi sur les télécommunications pour en arriver au même résultat.
Plus pragmatiquement, je crois que le CRTC doit demeurer loin de s'arroger un tel pouvoir de censure au risque de voir naître l'État policier décrit dans 1984 par Georges Orwell... J'ai davantage confiance en mes concitoyens et en moi-même qu'à l'État quand vient le temps de décider ce qu'il est bon de penser ou dire! Et contrairement, à Michael Goldberg qui écrivait:
This case is an important precedent because it speaks to the sovereignty of Canada and its ability to protect its citizens and defend its own criminal code.
je suis plutôt de l'avis d'un autre commentateur qui, avec une belle pointe d'ironie, répondait:

Thanks a lot for helping to protect my decentness from such nastiness. I am very happy that someone is looking out for my mental health and open mind, by having my government prevent me from reading something that might compromise me.

Il y aura toujours des imbéciles qui inciteront à la haine. On tentera toujours de les en empêcher mais ils trouveront toujours des moyens de continuer (surtout aujourd'hui avec les technologies). Nous devrions plutôt nous concentrer à élever nos enfants pour qu'un monde meilleur soit créé; un monde dans lequel, peu importe la race, la couleur, les convictions, nul être humain ne mérite d'être tué et ce, peu importe la cause.
En attendant, le CRTC a rejeté la demande de Me Warman. Cette demande prenait assise sur l'article 36 de la Loi sur les télécommunications. Celui-ci prévoit, sous le titre "contenu des messages", que:
Il est interdit à l’entreprise canadienne, sauf avec l’approbation du Conseil, de régir le contenu ou d’influencer le sens ou l’objet des télécommunications qu’elle achemine pour le public.
Vous serez à même d'apprécier la frustration, fort compréhensible, ressentie par Mark Goldberg et le CJC à la lecture, respectivement, de son billet intitulé Procedural Punt et de son communiqué de presse. Pour les avocats parmi vous, la qualification de la décision comme "procédurale" vous fera sans doute frémir autant que moi... En effet, dans sa lettre de réponse rejetant la demande, le CRTC écrit:
the Application was filed on an ex parte basis – without specific notice to Canadian carriers and other interested parties and without affording an opportunity for all such persons to be heard. (...) The Commission therefore considers that all interested parties should be afforded an opportunity to provide their views on these important issues. In addition, the Commission notes that it would normally expect that an application seeking approval for a Canadian carrier to block certain websites pursuant to section 36 of the Act would be filed by the carrier(s) in question. The Commission considers that Canadian carriers should at least be provided notice that an application has been filed by another person for approval pursuant to section 36 of the Act and an opportunity to be heard. In the Commission's view, given the unprecedented nature of the relief sought in the Application and the serious and fundamental issues it raises, as well as the fact that the specific approval is being sought in favour of Canadian carriers without notice to such carriers, it would be inappropriate to consider granting the interim relief sought in the Application on an ex parte basis, and in particular without affording Canadian carriers and all other interested parties the opportunity to comment. Such a public process would allow for consideration of the broader policy and legal issues regarding the scope, and appropriate use, of the Commission's powers pursuant to section 36 of the Act. (nos soulignements)
À la lecture de ces motifs, il est aisé de saisir, non seulement que la décision n'est pas de la procédurite mais, bien au contraire, qu'elle est fondée sur une règle de droit fondamentale: Audi Alteram Partem, i.e. le droit pour chacun d'être entendu et de faire valoir ses arguments. À mon sens, il s'agit d'un des droits les plus importants vu sa relation privilégiée avec la liberté d'expression. En fait, la règle audi alteram partem est parfois même la dernière chance (dans les États où la peine de mort est encore infligée) d'exercer sa liberté d'expression!
Bien que le résultat puisse être dérangeant pour le requérant et la communauté juive en général, je demeure d'avis qu'il s'agit d'une sage décision du CRTC qui a vu dans cette demande un dangereux précédent pour lequel il désire obtenir les opinions des différents acteurs (ISPs, blogueurs, propriétaires des sites web). Réitérant mon opinion quant à l'absence d'une compétence de censure pour le CRTC, dans l'éventualité où cette cause - ou une autre - était réentendue (ce qui me semble allez de soi), je suis d'avis qu'il devrait y avoir des audiences publiques afin de prendre le poulx de la communauté en général puisque, selon moi, il s'agirait d'un dangereux pas dans la mauvaise direction...
Comme le disait sagement Benjamin Franklin: "Those Who Sacrifice Liberty For Security Deserve Neither". À bon entendeur salut!

12 comments:

Mark Goldberg said...

I am confused on two points. First, your selection of a quote suggests that there was a sacrifice of liberty for security. Death threats are not a form of protected speech in any democratic jurisdiction - even the US. Mr. Warman should not have to sacrifice his liberty nor security because of a clear call to cause him violence and death, notwithstanding Mr. White's attempts to scrub his websites of the threat, after the fact.

Secondly, the CRTC did not examine the merits of complaint - even Michael Geist referred to the decision as procedural. Incidently - its decision was not based on giving Bill White his time in court Audi Alteram Partem.

The other parties were the carriers.

Is it censorship, in your view, to have any restrictions on such speech? Is enforcement of Sections 318 and 319 of the Canadian Criminal Code censorship in your views?

Dominic Jaar said...

As a lawyer, I tend to be really pragmatic when it comes to the interpretation of statutes. You should discuss the explanations I am about to give you with the lawyers you are dealing with.

You know section 318 and 319 of the Criminal Code pretty well and as you are undoubtedly well aware, they are not about censorship. They are about the illegality of hate propaganda. Therefore, Mr. White's website is probably (I write probably because I have never seen the website) illegal. Therefore, Mr. White might be found, after a trial, to be a criminal for infringing the abovementioned sections.

That being said, in Canada, each forum (tribunal) has a jurisdiction. In the case of the application of the criminal code it is not the CRTC.

What I am afraid of with the case Mr. Warman is bringing before the CRTC is that it might transform the CRTC into a censorship tribunal. It is a dangerous precedent that a blogger like you should be afraid of.

Regarding the procedural side of things, I replied to professors Michael Geist and Vincent Gautrais postings explaining why I could not agree with their characterisation of the decision as a procedural one. I am a practitioner and sometimes, I am a bit far from theory. However, as of now, there has not been any reply to my comments. I am still willing to go back to school to learn about natural justice and the distinction between procedure and fundamental rights.

The fact that the CRTC did not examine the merit of the case does not imply that it is a procedural decision: on the contrary. In fact, if the CRTC had grant Mr. Warman's demand, it would have violated the ISPs, the websites owners and Mr. White's right to a fair trial.

First, Mr. Warman is trying to get an order against ISPs to do something without giving them the chance to be heard.

Second, even if Mr. White's website fomentated hate, he has the right to a trial and, once again, that trial will not be before the CRTC. It will be before a court of criminal jurisdiction where the actus reus and the mens rea will be evaluated to the "without a reasonable doubt" standard.

All that being said, to stop speculating and make a clear decision for myself, can you send me (or post) Mr. White's websites as well as Mr. Warman's demand to the CRTC. Afterward, we will all know what we are discussing about.

Finally, to answer your question: Yes, I think it is censorship to have a restriction (of the type Mr. Warman asked the CRTC) on any type of speech. However, I am not the only one: the Legislator was of the same opinion and that is why the only sanction that exists for such speech is prison, as per the criminal code sections you cited.

Fairness Fairy said...

I think we have to expand our scope when looking at a situation like this. Though I commend Mr. Goldberg on his initiative in this case I must point out that not enough of this case is getting reported.

I will give Mr. Goldberg the benefit of the doubt on this case as I do not believe that he has enough background information about the Applicant, Richard Warman.

People read stories like this and get affected by the "victim impact statement". In this case, Mr. Warman states that he fears for his life due to the fact that his address has been posted online. No one stops to think as to what the actual origins of this issue were. I was amazed to see that almost all the Canadian coverage of this issue gave very little background about anything to the point of being frustrating.

There was no mention of Mr. Warman's relationshp to Mr. White in the U.S. No talk about Mr. Warman's crusade against hate propaganda online or his speeches and awards. All that coverage started when the CRTC motion failed. But in the tradition of "speaking well of the victim", nothing will likely be revealed that will answer any questions as to why things would possibly turn out this way and why a man in the U.S. would care about a specific lawyer in Canada.

In the Zundel case, the Supreme Court ruled that Zundel could not make the court believe that he did not approve of violence when he spent most of his time with violent people or groups.

Richard Warman finds himself in a similar position. He recently seems to have sponsored an urban terrorist group called the “Anti-Racist Action” to protest in front of another individual’s house whose ideas he did not agree with and he considered a "Neo-Nazi" (Mr. Warman has a tendecy to call anyone he considers a racist by that name to create the maximum effect). [ link ]

They picketted his street with masked faces and sticks and weapons. the cops acted as a barrier between them and Mr. Fromm’s house. This group of individuals that Richard Warman has given speeches to and financed, were also responsible for the firebombing of Ernst Zundel's house in the mid-90s, including the posting of instructions to make a moltov cocktail printing beside a picture of Zundel. (link with news articles and pictures on the ARA, including the firebombing, and articles about them attacking police horses’ eyes with sharp sticks during protests) [ link ]

And if you visit the website of ARA Toronto [ link ] , the first page is a video that shows their members in another county of ganging up on an individual sleeping on a train that they suspected was racist and assaulting him while filming it.

After the protest, this group posted Paul Fromm’s address online in a “declaration” about their “successful” mission attacking his house. [ link ]

While they were protesting however, a member of the group was holding up a sign that said, “Thank you Richard Warman for the bus rental”. Another with “Die Nazi Scum” (could that be considered a death theat?)
[ link ] and [ link ]

As you can see in the pictures, some of the members are masked in this protest.

What relation does Paul Fromm have to Richard Warman?. Paul Fromm is an individual that Warman is trying to sue, seemingly unsuccessfully, for calling him a censor/an enemy of free speech. Also, Paul Fromm has been doing free legal defense work for individuals that Richard Warman files human rights complaints against. A month before the attack on Paul’s house, Richard Warman was unsuccessful in trying to have Mr. Fromm banned from defending people for free at the Warman v. Tremaine case. At the Canadian Human Rights Tribunal, the complainant gets a lawyer from the Canadian Human Rights Commission to prosecute the case for him (for free), but the respondents have no right to legal representation, so they have to pay for their own lawyers. Since most people that Richard Warman targets are youth that post messages online, they can’t afford that.

Aside from trying to ban Mr. Fromm from representing Mr. Tremaine, before this case was so much as evaluated by the investigative body (CHRC) Richard Warman called up the university where Mr. Tremaine worked and told them he was a racist and convinced them to fire him. [ link ]

This is nowhere near the begining of what Mr. Warman has done, but it's a taste. He has affected other peoples’ lives and threatened their safety as well on many occasions. You live by the sword, you die by the sword.

Now when we reevaluate the "victim" in this case, is it okay for RIchard Warman to do exactly the same thing to other individuals and then whine about it when it gets reciprocated. I am overjoyed by the fact that the CRTC did not buckle to the false image of public opinion that the media created in their patchy reporting of the incident.

At least the next time around when Mr. Warman tried to bring this issue to the CRTC again, the other parties will have the chance to introduce this type of information to counter his. I wonder what the CRTC would think knowing this.

And speaking of missing information, I wonder how the CRTC would feel finding out that Mr. Farber was a little less than honest on his affidavit when he stated that he was a qualified expert in the field of hate, etc,etc....

Would the give his affidavit the same weight if he didn't leave out that the last time he tried to testify (in 1999 - Skinhead/Roma cse), he was disqualified as an expert because he had made comments to the media that indicated that he is dangerously biased would likely say anything to get "racists" nailed. [ link ]

There is no information to show he has been requalified as an expert witness since then. And the fact that he decided to dive into an ex parte application shows that his heart is not in the right place.

So I pose this direct question to you Mr. Goldberg: Did you and Mr. Warman decide to exclude other parties from this case in order to prevent this kind of information from seeing the light?

Anonymous said...

I have to agree with Mr. Jaar and as another person said on Mr. geist's forum.

This is a law-enforcement matter. Not a CRTC matter. There are laws for this type of thing.

Even Mr. Geists Aug 28th column mentions it:
"several U.S.-based sites directly targeted Warman, mounting death threats against him. Warman asked U.S. law enforcement authorities to take action against the sites, but when they failed to do so (those cases are under investigation),"

It was a complete failure of law-enforcement, perhaps on both sides of the border.

Maybe you can censor yourselves ONLY and buy a parental control program to block the sites ONLY for you? Would cost less for you to put on your site a parental control program with the stated sites and let your beleivers and followers who support you, censor themselves. Stands to reason.

I'll decide what i can't or can read and make my own informed choices.

I see nothing in Golbergs case that raises any merit to demand the CRTC to issue an order to censor ex parte.

Dominic Jaar said...

Here is Michael Geist article in the Toronto Star.

only-moi said...

Was BEll-Sympatico one of the "larger" ISP's mentioned in the submission and in the CRTC ruling?

Thanks.

Anonymous said...

The latest press release from the CJC seems to imply both Rogers and Sympatico were contacted.

Since the filing said they more or less has the backing of "larger" ISP's in Canada, they just let the cat out of the bag as to which ISP's supported this censor ex-parte.
http://www.cjc.ca/template.php?action=itn&Story=1904

Dominic Jaar said...

The press release merely states:

"In their written application, Warman and Congress jointly asked the telecommunications regulator to allow carriers such as Rogers and Sympatico to block two “blogs” (web logs, or Internet journals) operated by Roanoke, Va.-based neo-Nazi Bill White."

I don't see any allegations of or implied backing from any third party.

Anonymous said...

ok, you must be right then. Maybe I completely misread and mis-understood.

But from my perspective I see this

I read, Warman et-al had an implied reason to believe the "larger" ISP's would block (as they have said and written to the CRTC), but the ISP's said only if they went to the CRTC for permission/order. Which they did.

I see it as this (reason for implied):
So they contacted the "larger" ISP's, Sympatico and Rogers who in turn tell them to go to the CRTC for them to have approval for this, and who seem to imply they will block on CRTC order/permission.
(they use the term "larger" in the CRTC doc's I have, and mention no ISP names. Only ISP names are listed on the Congress website)

So my understanding, as I read it, implies the "larger" ISP's more or less backed them up to go to the CRTC with this. (keep in mind these "larger" ISP's were contacted prior to them going to the CRTC and it was the "larger" ISP's who said bring it before the CRTC)

So that why I said it implies them backing them up on it. Thats how i read it (since thats what the CRTC doc's that I have show) and understand it.

Guess its all in interpretation

Fairness Fairy said...

No. What they probably mean is that they will coerce the ISPs to accept it by finding a way to sue them if they don't. There is already a veiled indication that this is the tactic they want to use:

http://www.cjc.ca/template.php?action=itn&Story=1895

"Internet providers that don't block the sites may make themselves legally liable if a user acts on what they read online, Warman suggested.

``The law and the Internet is an evolving field,'' he said.

``This is perhaps one of the first times where there's been such a direct call to violence that has presented itself in this form.'' "


When it comes to accepting the CJC's demands and conditions, free will isn't an option. And if you have any legitimate, public opposition, you will probably brushed off as being anti-semitic.

The last sentence i quoted is plain false and an abvious attempt to sensationalize the issue.

Dominic Jaar said...

N.Y. Times move to block U.K. readers raises questions

Anonymous said...

Yes saw that a little bit ago.

But, that was a volentary block by a Media company in request from the UK gov.

NOT all the site was blocked. Nor were all media about the story blocked.

Also, it was blocked on the ISSUEING site. Not by all UK ISP's.

Little different.

This would be the same as the American carrier volenteering to block that garbage hate site to .ca

not the same.