Canada’s New Clean Internet Act

On the heels of the rumoured Copyright bill and the surveillance bill comes another bill that aims to ‘clean up the internet’, though some critics argue that the language in the bill is too broad and loose.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

The bill, entitled the ‘Clean Internet Act’, was tabled by Conservative MP (Member of Parliament) Joy Smith on April 18th. According to Joy Smith’s press release, “The Clean Internet Act goes further than the current legislation on Internet usage by requiring Internet service providers to co-operate in minimizing the use of the Internet for the purposes of violence and racial hatred toward women and child pornography. Internet providers will be required to take all reasonable steps to prevent to these types of material from being accessed and withhold service from persons who have been convicted by an offence under this Act within the previous seven years.”

“In an age when the Internet is increasingly being used for criminal and exploitive purposes, it is the responsibility of parents and all Canadians to protect our vulnerable citizens”, says MP Smith. “This Clean Internet Act is one more step towards ending violence and exploitation of women and children in Canada and abroad.”

So what about the bill itself? The bill suggests a number of things. One portion states, “No Internet service provider shall knowingly permit the use of its service […] to advocate, promote or incite violence against women or hatred against any identifiable group or to facilitate participation in unlawful sexual activity involving any person under eighteen years of age.”

The language might remind some of the MGM vs. Grokster case in the United States where it was ruled that no creator of a file-sharing client or publishing software can create it for the explicit purposes of infringing copyright without being held liable. In the same light, the legislation with this particular excerpt says that an internet service provider is legally permitted to promote so-called “hate crimes” on the internet.

The first thing that may be new is the following:

“No person shall possess any material referred to in subsection (1) that has been retrieved from the Internet.”

Some may recall a case known as the Regina vs. Sharpe case. The case involved someone by the name of Mr. Sharpe who was charged for possession of child pornography for the purpose of distribution. While some suggested that it was an open and shut case, eventually, Mr. Sharpe was found not guilty for violating any laws, citing section 2(b) in the Canadian Charter of Rights and Freedom which states, “Everyone has the following fundamental freedoms […] freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” (case source.)

Under the new law (if passed) such a defense would have a more difficult time standing.

Though while proponents would say that this merely is about eliminating child pornography sourced from the internet, critics point out that there is other language embedded in the bill that may be less desirable.

While citing that the criminal code already covers the prohibition of child pornography – even on the internet – one argument against the bill can be sourced at the following language:

“(2)The Commission [CRTC – Canadian Radio Television Commission] shall grant a licence to operate as an Internet service provider to any applicant that meets the prescribed requirements and that has submitted to the Commission

(a) an application in the prescribed form and manner; and

(b) a written undertaking to report the prescribed information in accordance with the regulations.

(3) The Commission may cancel a licence granted under subsection (1) if the licensee or, where the licensee is a corporation, a director or officer of the corporation is convicted of

(a) an offence under this Act;

(b) an offence under the Criminal Code in the commission of which a woman is the victim of physical violence;

(c) an offence under section 319 of the Criminal Code (public incitement of hatred);

(d) an offence under section 163.1 of the Criminal Code (child pornography); or

(e) a designated offence involving a child.”

Michael Geist argues that the bill would force “an ISP licensing system to be administered by the CRTC that is defined so broadly that it would seemingly capture anyone offering a wifi connection”

Russell McOrmond says, “These bills suggest that ISPs should be “licensed” like legacy broadcast media, demonstrating a total lack of understanding of the differences between new media and old media. While publishers should have some responsibility for material which they authorize to be published, with special consideration for the differences between amateur and corporate publishers, an ISP should only be held liable for any publication in the very narrow cases where they are also the publisher and not just an innocent intermediary. ISPs should not need to be licensed any more than owners of photocopiers or computers should be licensed. In fact, we don’t even require licenses of print media publishers, and most would think it offensive if the government tried to require licenses for print media or handing out pamphlets. It is sad to see how out-of-touch some politicians are about what the Internet is to even suggest that online publishers should be licensed, leave alone ISPs.”

He also suggests that the bill really isn’t about child pornography (despite its presence in the bill itself which Michael Geist already suggested that these laws are already in the criminal code) but much rather a means to control new media like the more centralized old media (such as television and FM radio)

Michael Geist says, “this bill would not look out-of-place in countries that aggressively censor the Internet and it makes the dangerous Jennings lawful access bill look positively harmless by comparison.”

Drew Wilson on Twitter: @icecube85 and Google+.

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