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The Internet offers an unprecedented opportunity for the human race to fully realize itself, educating those who previous had no access to the tools needed for learning. This hope is being challenged by those who, having the power have reduced educational opportunities throughout their constituencies and now seek to gain full control over a population which has become more ignorant -- and therefore unable to understand or resist.


Internet Law

Ontario court overturns decision on Web-based libel and slander: 'Broad social ramifications' of the issue require more thorough judicial attention

The Ontario Court of Appeal has overturned a ruling stating that anybody who posts defamatory information on the Internet is a broadcaster and can be sued as if they were a regular newspaper or broadcast outlet.

The court ruled 3-0 yesterday that the issues are far too complex and involve such "broad social ramifications" that they should not have been disposed of by a lower court summary judgment.

The ruling was a victory for Thunder Bay city clerk Elaine Bahlieda, whose defamation lawsuit against Thunder Bay city councillor Orville Santa was short-circuited by a trial judge. The suit can now go ahead.

Elaine. Bahlieda alleged that Mr. Santa libelled her by posting material harmful to her reputation in 2001.

It was the first time a Canadian court had decided the issue of whether an Internet posting qualifies as a broadcast under provincial libel and slander legislation.

"Our client is strongly of the view that it would be inappropriate to extend the special protection over broadcasts to the Internet without the authority of the legislature," Ms. Bahlieda's lawyer, Peter Downard, said in an interview yesterday.

In her trial ruling, Madam Justice Helen Pierce of Ontario Superior Court barred the lawsuit because it was not launched within the normal time allotment pertaining to broadcast material.

She stated that while the Internet uses the same "infrastructure" as radio and television, it can reach a wider audience than either.

Judge Pierce said that in light of Ms. Bahlieda having failed to launch her lawsuit within the allowable period for broadcast statements, it could not proceed to trial.

However, Ontario Chief Justice Roy McMurtry stressed yesterday that experts disagree over whether the factors that apply to conventional broadcasts apply equally to the Internet.

He said there is also dispute about whether publication over the Internet should be seen as "immediate."

The ruling by Judge Pierce had meant that strict limits apply to the length of time broadcast plaintiffs have to initiate a libel action. Plaintiffs would have six weeks from the time they learned of an offensive posting in which to initiate the lawsuit. They would have three months in which to file a full statement of claim.

Judge Pierce's decision also meant that defendants would be exposed to far higher damages than had been the case, since a defamatory statement on the Internet can potentially be read by so many people around the world. (She also ruled that a portion of the claim relating to statements that Mr. Santa made and faxed can continue.)

People have always been subject to lawsuits for posting defamatory material, but not on the basis that they had broadcast the offensive material. The principle behind a limitation period is to give a defendant an opportunity to apologize or retract his or her statement.



U.S. eyes proposal to monitor cyberspace:
Web surveillance part of Bush security strategy

NEW YORK - The Bush administration is planning to propose requiring Internet service providers to help build a centralized system to enable broad monitoring of the World Wide Web and, potentially, surveillance of its users.

The proposal is part of a final version of "The National Strategy to Secure Cyberspace," set for release early next year, according to several people who have been briefed on the report. It is a component of the effort to increase national security after the Sept. 11, 2001, attacks.

U.S. President George W. Bush's Critical Infrastructure Protection Board is preparing the report, and it's intended to create public and private co-operation to regulate and defend the national computer networks, not only from everyday hazards like viruses but also from terrorist attack. Ultimately the report is intended to provide an Internet strategy for the new Department of Homeland Security. Such a proposal, which would need congressional and regulatory approval, would be a technical challenge because the Internet has thousands of independent service providers, from garage operations to giant firms like American Online, AT&T, Microsoft and Worldcom.

The report does not detail specific operational requirements, locations for the centralized system or costs, people who were briefed on the document said.

While the proposal is meant to gauge the overall state of the worldwide network, some officials of Internet companies who have been briefed on the proposal say they worry that such a system could be used to cross the indistinct border between broad monitoring and wiretap.

Stewart Baker, a Washington lawyer who represents some of the largest Internet providers in the U.S., said, "Internet service providers are concerned about the privacy implications of this as well as liability," since providing access to live feeds of network activity could be interpreted as a wiretap or as the "pen register" and "trap and trace" systems used on phones without a judicial order.

Baker said the issue would need to be resolved before the proposal could move forward.

Tiffany Olson, the deputy chief of staff for the president's Critical Infrastructure Protection Board, said yesterday the proposal, which includes a national network operations centre, was still in flux. She said the proposed methods do not necessarily require gathering data that would allow monitoring at a individual user level.

But the need for a large-scale operations centre is real, she said, because service providers, security firms and other online companies only have a view of the part of the Internet that is under their control. "We don't have anybody that is able to look at the entire picture," she said. "When something is happening, we don't know it's happening until it's too late.''

The report was released in draft form in September, and described the monitoring centre, but it suggested it would likely be controlled by industry. The current draft sets the stage for the government to have a leadership role.

The new proposal is labelled in the report as an "early-warning centre" the board says is required to offer early detection of Internet-based attacks as well as defence against viruses and worms. But Internet service providers argue its data-monitoring functions could be used to track the activities of individuals using the network.

An official with a major data services company who has been briefed on several aspects of the government's plans said it was hard to see how such capabilities could be provided to government without the potential for real-time monitoring, even of individuals.


Bill recognizes legality of electronic documents

Lawyers take note: Contract law is about to become just as valid in cyberspace as it is in the traditional paper world.

What's more, this new reality will likely force lawyers to consider the legal ramifications of online security and privacy issues.

E-commerce contracts are among the issues raised by the Ontario government's proposed electronic commerce act, which is now in second reading. The Bill confirms legal recognition of electronic information and documents -- with the notable exceptions of wills, powers of attorney or "negotiable instruments" like cheques.

Electronic contracts now legal

"What we're trying to do is to make the law media-neutral," says John Gregory, counsel for the Ontario Ministry of the Attorney General, who suggested the legislative move to the government in 1996. "It will be the same law for paper as for electronic communication."

The province introduced the electronic commerce act after four years of extensive consultation with more than 150 legal, business and government representatives.

The Bill is based on the United Nations Model Law on Electronic Commerce, which was adopted by the UN in the mid-'90s. That model was, in turn, adopted in 1999 by the Uniform Law Conference of Canada, a federal-provincial-territorial legal body.

Participants in the Uniform Law Conference process have described the legal recognition of e-commerce as "long overdue."

"In Ontario alone, there are hundreds of different acts that use words like 'in writing' or 'assigned in writing,'" notes Alan Gahtan of Bennett Jones, who was involved with the government consultations as a representative of the Canadian Bar Association-Ontario. "This Bill is clarifying that just because it says 'in writing,' the fact that you're using e-commerce isn't violating that any more."

Bill a good start

In turn, Gregory adds, this will give lawyers more freedom to express their opinions about the validity of electronic contracts.

"I think the Bill helps lawyers uncross their fingers," he says. "A lot of lawyers' clients are out there doing e-commerce now, and their lawyers are saying, "Well, I don't know whether this is going to work, legally."

"And the question is: How much do you bet on a 'probably' from your lawyer?"

Participants in the Uniform Law Conference agree with Gregory that the bill is a "good first step," despite the act's silence on issues concerning the legal nature and authenticity of electronic contracts.

"I don't want to damn it with faint praise," says Simon Chester of the KNOWlaw group at McMillan Binch. "There's an old French proverb from Voltaire that says, "The best is the enemy of the good."

"This is a good initiative. It's not going to be the ultimate e-commerce statute, but if we waited for the ultimate e-commerce statute, we might have waited for a long time."

Bill overlooks online security and privacy

But while most are hailing the legal recognition of contracts in the electronic world, many note the legislation does not address crucial issues like online security and privacy.

Online security issues arise because while the law may treat the paper and electronic worlds as 'neutral,' there are differences between the two.

In 1997, for example, the United Nations Commission on International Trade Law (UNCITRAL) discussed the need for a legal framework that would tackle the issue of the authenticity of digital signatures.

"In an electronic environment, the original of a message is indistinguishable from a copy, bears no handwritten signature, and is not on paper," reads a 1997 UNCITRAL report. "The potential for fraud is considerable, due to the ease of intercepting and altering information in electronic form without detection, and the speed of processing multiple transactions."

Gregory acknowledges the province's Bill does not address the potential legal effects of electronic signatures. But he says the law simply "shouldn't be going there."

"Face it, for half the people doing business these days, you can't read their signatures anyway," says Gregory. "It's just a scrawl. Well, why do you trust that?"

"We don't go there on paper, and we're saying we shouldn't go there electronically either."

Wendy Matheson, a litigation and technology lawyer at Torys, agrees in a way with Gregory. She says the act's general nature is not a liability; rather, it opens the door for lawyers to consider online legal issues such as security and privacy.

Shift affects definitions, privacy and access

Gahtan said deliberations around the law raised a number of issues surrounding the applicability of contract law to the Internet. The provincial act recognizes that the new electronic medium may put a kink in traditionally accepted legal definitions of a contract.

For example, s. 1 of the proposed act makes reference to an "electronic agent," a computer program used to respond to electronic documents without any review at the time of the contract. This raises the issue of what it means to have an electronic "intent" to form a contract.

"I remember first-year law, you need intention, a mutual intention," says Gregory. "But where is the intention at the time of a contract when I have a piece of software and tell it: 'Find me on the Net the best price for a ticket to Vancouver this week, and buy it for me when you find it?'"

"Where is the intention when my robot finds it at three in the morning on the Net somewhere?"

And then there's also the issue of privacy.

"I know the act is designed to be policy-neutral," says Brian Beamish of the Information and Privacy Commission. "But our feeling was that as you move from a paper world to an electronic world, there are certain implications involved that could impact on privacy and access rights as well."

Based on recommendations by the commission, the government made the proposed electronic commerce act subject to the Freedom and Information Act. The use of "biometrics" to identify people -- such as voice recognition, finger and iris scans, and dynamic signature information -- is not permitted.

Also, institutions cannot destroy paper documents immediately upon conversion into electronic documents.

This article does not constitute legal or other professional advice and no responsibility for any loss occasioned to any person acting or refraining from action in reliance upon material contained in this article is accepted by the author or Canada Law Book Inc.


Saudis block 2,000 websites:
Net use is catching on in Saudi Arabia

If you tried to look at Rolling Stone magazine on the web from Saudi Arabia, you would find that access has been denied.

You would not have much luck either if you tried the American women's lifestyle site iVillage.com.

These sites are among the 2,000 blocked by the Saudi Government, a Harvard Law School has found.

Most of the blacklisted sites were sexually explicit or about religion. But also caught in the net were sites about women, health, drugs and pop culture.

"We found blockage of quite a bit of content beyond political content and pornography," said Ben Edelman, one of the researchers behind the report.

"We found the blocking of content about women's history or sites about bathing suits. So if you want to buy something to swim in, they seem to treat that as if it were pornographic in Saudi Arabia," Mr Edelman told the BBC programme Go Digital.

Electronic controls

For the study, Jonathan Zittrain and Benjamin Edelman at Harvard tested 64,000 websites, with the full collaboration of the Saudi Government.

"Saudi Arabia was willing to let us test their proxy servers," said Mr Edelman.

"They were willing to connect to their version of the Internet to let us find what they allow and what they don't. Most other countries have not been willing when asked."

The Saudis are also open about their censorship of the web. If a site is blacklisted, the user is directed to a page that explicitly informs him or her that access to the site has been denied.

This contrasts to other countries like China, where a surfer simply gets an error message. It means they do not know if the site is blocked or if there is something wrong with the connection.

Sexually explicit

Saudi Arabia filters all Internet traffic through a central array of proxy servers maintained by the Internet Services Unit (ISU). The servers route and filter all Internet traffic.

"Our Internet service is unique in the way it preserves our Islamic values, filtering the Internet content to prevent the materials that contradict with our beliefs or may influence our culture is one of ISU tasks," says the ISU site.

The researchers found that many of the blocked sites were sexually explicit.

"It comes as no surprise that the same countries that would be concerned about certain books and newspapers crossing their borders would also be concerned to find similar information crossing their borders electronically over the Internet," said Mr Edelman.

But sites about religion, humour and music also figured prominently, among them film studio, Warner Brothers.

"We weren't expecting them to block big California media companies," he said. "It's possible there is something particular offensive the Saudi Government about a singer's lyrics or a musician hostile to their politics."

Also blocked were most of the major personal homepage domains, including oocities.com and members.aol.com, as well as sites about women's rights, perhaps unsurprising in a country where women are not even allowed to drive.

Net controls

Anyone trying to get around the censorship would have trouble, as the researchers found that the Saudis also blocked proxy servers allowing a way around the filtering restrictions.

"Even if you manage to find a proxy server that works on one day, you never really know if its going to be there the next day," said Mr Edelman.

"Perhaps more seriously, since all accesses are logged, it's quite possible that the Saudi Government could be watching what you are doing."

Saudi Arabia is one of dozens of governments around the world trying to control what their citizens see online.

But only a few, such as Vietnam, China and the United Arab Emirates, actually attempt to filter their entire national Internet traffic.

"There was an instance when it looked like the Internet would be a free source of information," said Mr Edelman.

"At the present time, there are plenty of forces trying to constraint who does what on the Internet. It is looking like the Internet of tomorrow might be very different from the Internet of today."