Al Jazeera decision cited as precedent for further Internet regulation

The CRTC’s decision to grant Al Jazeera carriage in Canada but at the same time require TV distributors to ensure no derogatory comments are broadcast on the station could serve as the legal basis for holding ISPs accountable for illegal material transmitted through their lines. Mark Goldberg, a prominent telecom and broadcast consultant, tells Canadian NEW MEDIA that he has been involved in early discussions around the formation of an industry self-regulatory body that would block access to sites hosting illegal content, with the threat that ISPs might be held liable for hate and kiddie porn crimes if they are made aware of illegal material and continue to allow subscribers to access it. Goldberg says the Al Jazeera ruling makes it clear that carriers can be held responsible for content, and hopes the principle will be applied to the interactive environment, as well. Goldberg explains that the CRTC’s decision on Al Jazeera - Broadcasting Public Notice 2004-51 - is remarkable for explicitly holding cable companies responsible to ensure hate material isn’t broadcast to Canadians on the controversial channel. The news channel has been criticized for broadcasting anti-Jewish propaganda, and opponents to its introduction in Canada noted that the commission would have little control over the channel’s content since it is programmed offshore. While the commission was persuaded to allow the channel to be carried in Canada by cablecos because it was important to add diversity to the dial and not to infringe on free speech, and would deter people from signing up to illegal satellite service offering the channel, the commission nonetheless expressed concern about the potential for hate speech. After an examination of its regulatory powers, the commission attached a condition of licence that puts the burden for ensuring hateful comments aren’t broadcast here with the broadcast distribution undertaking (BDU). The commission writes: "The argued in its reply comment that responsibility for content should reside with the originator of the content, that is, Al Jazeera. The commission considers that this is simply not viable. The commission does not license Al Jazeera and has no direct jurisdiction over it. The only link the commission would have to Al Jazeera is through the licensed BDU that makes the choice to distribute Al Jazeera and maintains a contractual relationship with that service. "The commission recognizes that this measure is a restriction on the freedom of expression of BDUs and, potentially, of viewers of Al Jazeera. However, the right to freedom of expression is not absolute; it is subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The commission considers that this requirement is justified because it is demonstrably necessary, based on the record of this proceeding, to ensure that Al Jazeera programming distributed in Canada reflects the circumstances and aspirations of Canadians, including equal rights and the multicultural and multiracial nature of Canadian society. The commission also considers that the requirement is minimally impairing. It does not deprive BDUs and Canadian viewers of the Al Jazeera." Goldberg says the same principle applies online. "It just seems to me that what the decision made really clear is that if you’re going to profit from stuff happening, then that stuff that’s happening had better be legitimate. Because, otherwise, you’re profiting from a criminal act…Similarly, if I’m an Internet service provider, and somebody identifies that there is material being transmitted across my servers, through my routers, that violates Canadian law, how is that any different?" To protect themselves, he urges the major ISPs who handle the bulk of Canadian Internet traffic to band together to form a body that would evaluate complaints and block URLs deemed by their lawyers and community standards staff to be in contravention of their policies. Goldberg says his initial inquiries indicate that the technical requirements would be minimal to maintain a database of banned sites similar to a domain name server (DNS) lookup system. If it progresses beyond early discussions, the self-regulation being proposed by Goldberg and undisclosed others would likely generate substantial controversy. ISPs have argued for years that they are not responsible for the material passing through their networks, and the principle was recently upheld in at least the field of copyright law when the Supreme Court of Canada found that copyright holders could not levy a blanket tax on ISPs to recover losses due to electronic music piracy. Further, the applicability of broadcasting regulations and laws to the Internet was explicitly forborne by the CRTC, which has little appetite to reopen the issue of new media regulation. Further, the issue of liability is also proving deeply divisive in negotiations on how to ratify the World Intellectual Property Organization (WIPO) Internet treaties, which some have argued require Canada to adopt a "notice-and-takedown" regime for dealing with copyright infringement. The system would hold content hosting companies liable for copyright infringing materials on their system once made aware of their presence by a copyright holder. Opponents to the system argue that it would unfairly put ISPs in the position of being "judge and jury," responsible for making legal determinations more properly decided in a court of law. Of course, the Canadian public may also object to ISPs blocking access to some sites. Tens of thousands of people have registered their displeasure with the commission’s decision to revoke CHOI-FM’s radio broadcasting licence, many calling the issue one of free speech. The arguments don’t faze Goldberg. He says that the material he has in mind for a don’t-access list would only be kiddie porn and hate speech - two forms of content that are already censored by society. Further, he says that if liability for hate speech and illegal pornography were made clear, big ISPs such as Sympatico, TELUS, Rogers and Shaw have legal staff in place to make reasonable judgement calls, especially if they were under a self-regulatory umbrella. "If I were an ISP I’d say I’m not going to block just offensive. But, is it not reasonable to expect bigger ISPs to have a lawyer who’s able to review and say, do we want to take the risk? I know, some people will say, until it’s gone to court, there isn’t a determination as to whether this is actually illegal. But, that’s in effect a business decision that they can make at any time. The question, though, is if they make the business decision that they don’t think it’s illegal, they don’t think it crosses the line - she may look like she’s under 17 but we have sworn statements that say she’s 17 or whatever, that’s their call. But, if a court finds them guilty, then that’s their problem. And, businesses make those decisions all the time. That’s in effect the real time risk management that legal departments advise their clients on…" Nor, he says, would Canadians object to blocking clearly illegal content. "Frankly, I think that the concentration of users within the ISPs is sufficient that a number of these companies don’t necessarily want to come down on the side of defending a pornographer’s right to transmit kiddie porn, because I don’t think their corporate shareholders would be terribly satisfied with that fight. And, this is not attempting to censor free speech. This is saying that Canada has certain laws that ban kiddie porn, that ban hate and that you don’t necessarily need new laws in order to cover new technology. You need enforcement of existing laws. And holding people accountable for that."

Al Jazeera decision cited as precedent for further Internet regulation

Broadcast | September 17, 2004

Unlock all the Canadian telecom, broadcasting and digital media news you need.

FREE TRIAL

SUBSCRIBE

Inside The Wire Report

Information

Hill Times Publishing

Get in Touch With Us