NOTE: “The following is an excerpt/ direct copy for a legal analysis I did for my Law class back in high school. I wrote this only about 9-10 months ago, so all of the information in this preceded the current revelations that have unfolded about FCC approving net-neutrality, and Bill C-51. The format of this piece was much different and was far more formal than any of the work I have done on this site. No flashy pictures or videos are included in this piece, all of my sources are cited below. This was my second/final argumentative essay I wrote in that class, really enjoyed it, and miss it actually. Though hopefully maybe my insights on the analysis of Canadian Law in regards to the internet maybe be fascinating. Anyways, take it easy.”
Canada’s approach to the internet has unfortunately seen favoritism towards the corporate approach to the internet. Meaning that Canada’s laws have not been made to preserve the rights of the citizen, but instead to favor corporate entities profit incentives. Internet use should be included as a freedom and a right, either as an extension of the Charter, or explicitly stated in the Charter. Net neutrality should be imposed to ensure fairness, and finally the internet should remain free. Canada should not impose criminalization on certain aspects of the internet. A constitution for the internet should be instilled instead of blatant criminalization.Criminalization should not be instilled on certain aspects of the internet, and this is due to the primary purpose of the internet. It is a vessel for communication, so it essentially already falls under Canadian Telecommunications laws. Due to this link between the internet being a vessel for communication, and Canadian Telecommunications Law. Then what could be concluded is that the internet already falls under CRTC regulations. These safeguards for communication have already been instilled for fair distribution of content. CRTC does enforce regulations, and does monitor the internet frequently. Though itself as an entity does not necessarily enforce strict regulations on ISP’s. The internet also has to correspond with Canadian copyright regulations.
The link between the internet as a communication vessel, and Canadian copyright regulations is significant. What could be concluded is the internet would have to already correspond with already instilled regulations. Of course the criminal justice system is to integrate with the needs of society. Meaning that the criminal justice system must re-adapt to societies modern conditions. The change in communication being in the digital revolution, it has always been quite the debate whether or not digital communications should be regulated as other medians of communication. Whether or not certain expressions should whether or not be restricted. Such as “hate speech” is an incredibly important issue in regards to expression on the internet.
According to The Criminal Code (R.S.C.,1985, c. C-46) in S(318,319,320), hate speech on the internet is classified as hate propaganda. Hate propaganda is any representation that endorses or promote genocide or the communication of. It is important to classify what genocide is defined as under law. According to the The Criminal Code, Section 318(2); “Genocide is defined to mean killing members of an identifiable group, or to destroy the well being of members of an identifiable groups lives.” Section 318(4); “Identifiable group” means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation. Essentially the internet would have to correspond with already instilled Human Rights Laws in Canada, as well it has to correspond with The Criminal Code of Canada. Canada’s legal system already has parameters instilled that regulate the internet. The main concern though is the consistency, and the efficiency of Canada’s regulations. Have Canada’s regulations fulfilled the needs of the public in regards of use of the internet? Has Canada’s criminal justice system concisely expressed the legal limits in regards to use of the internet sufficiently? The criminal justice system is currently instilling more regulations and limitations of use of the internet. Bill C-13 The Protecting Canadians from Online Crime Act is a bill that is in the process of being legislated in the House of Commons currently. This bill essentially gives police more resources to deal with cases of cyber-bullying. This bill is controversial and this is because, certain proponents of the bill allow authorities to access more private information of Canadians. Essentially giving the state the ability to spy on their citizens.
Bill C-13 is actually only a mere derivative of a previous proposed piece of legislation; Bill C-30 Protecting Children from Internet Predators Act. Bill C-30 was proposed by the Harper Government on February,14 2012. The function of Bill C-30 was to grant authorities new powers to track the activities of Canadians in real-time, and it required ISP’s to log info. Bill C-30 also proposed to make back-door vulnerabilities necessarily so Canadians information could be remotely accessed with out a warrant. Bill C-30’s efforts though were unsuccessful, and the bill was rejected and was shelved in Summer of 2012. Bill C-30 in conjunction with a new proposed bill in parliament are both in the process of addressing the issue of online crime. The new proposed bill in parliament is called Bill S-4 Digital Privacy Act. This act essentially addresses the concern of pirating of movies, software, games, apps, and any other type of digital media. The concern with this act is the detrimental effect it will have in the aspect of an individuals privacy.
How this act is designed essentially, if a big name corporation even suspects an individual of pirating. The big name corporation would have to just demand the name of the individual without a court order/warrant. Removing the legal process of acquiring the information legally. Essentially cutting the middle man out of the picture.This would set a terrible precedence, because this would now allow any big name corporation to go after any individual who is even sharing a copyrighted .mp3 clip. The likelihood of this legislation succeeding is just as likely as the success of its predecessors. Personal Information Protection and Electronic Documents Act (PIPEDA), is designed to be suitable parameters that protect Canadians electronic information from improper exposure to private sector organizations. PIPEDA lays out the ground rules for how private sector organizations can acquire, use, and disclose private information.
If Bill S-4 is passed this would then allow PIPEDA to disclose the private information of Canadians to private sector organizations, which can then disclose that private information of Canadians to other private sector organizations. Instead of criminalizing certain portions of the internet. Canadians should clearly define the rights and freedoms that Canadians possess in regards of digital communication. Criminalization of the internet will only lead to the rights and freedoms of Canadians to be impeded. Which goes against the very foundations of Canada’s constitutional democracy. The issue of rights and freedoms on the internet and privacy, should be addressed by at least denoting those rights and freedoms. If these rights and freedoms are properly defined, then it would be appropriate to take precautions to instill limitations. This proposed framework for internet legislation should be the predecessor for Canadian internet legislation. In essence a constitution for the internet in Canada would not only clearly define an individual in Canada’s rights and freedoms on the internet, a constitution for the internet would also help instill reasonable limits on legislation. Meaning that the future government would have to actually recognize the act as precedence. Instead of recognizing use of the internet as a privilege, because of the internets relevance, and importance.
The internet should be recognized as a right and a freedom in the modern age. Brazil has a piece of legislation that is revolutionary called Marco Civil da Internet; Law No 12.965. This piece of legislation is revolutionary because this is one of the very first instances that rights and freedoms on the internet are defined legally. This piece of legislation defines file-sharing, privacy, expression, and net neutrality on the internet. These rights are all important for secure, private, and safe access to the internet. This piece of legislation sets perfect precedence to how to set a framework for the internet in a constitutional republic. This piece of legislation can work in the constitutional Republic of Brazil, then it can work in the constitutional democracy of Canada. Net neutrality should be integrated in our modern laws.
Net neutrality in essence is the notion of fair and open distribution of content on the internet. ISP’s / internet service providers are the ones who control network. This network hosts all of the content on the internet such as websites, videos, pictures, documents, and any other type of digital information. Net neutrality is important, and this is because it ensures an even playing field. When net neutrality is not integrated in business practices, and Canadian law this leads to unequivocally unfair consequences. If an individual cannot access acertain site such as Google an efficient amount of time, or even at all, but can access the alternative Yahoo instead. Then this shows that the distribution and access of content on the internet is not neutral. This would lead to unfair business practices such as; too slow of service, possibly restricted access to certain websites, and fluctuation in cost to the average consumer. Which leads to discrimination between not only the ISP, and the individuals content that is being restricted. Also it can be classified as an discriminatory practice against the subscriber. Net neutrality is essential, because it ensures an even and fair playing field for all content on the internet. Meaning that net neutrality allows an individual to be able to freely access any type of content hosted on the web. Fair and ethical business practices are important, and especially for the integrity of the internet. Also a fair and open internet ensures for innovation.
The push for net neutrality is only for the purpose of making the internet a fair and open platform for everyone. Meaning that despite your brand and association with ISP’s, one can still compete in a fair marketplace. Instead of favoritism being played towards one specific entity or another. Net neutrality is also essential so that an ISP cannot limit the streaming of content. An ISP can limit the streaming of content by either making the transfer on that information much slower. Or else restricting access to a website entirely without opposition. Net neutrality ensures the freedom of expression. It does this by preventing an ISP from having the ability to censor content. Censoring content in essence is referring to the notion of an ISP being able to restrict access to certain websites. Content that is deemed explicit such as proponents of intellectual property, hate speech, and explicit sexual content all should be monitored. Though it is the job of Canadian legislators to make the distinction between explicit and non-explicit content. As a society Canadians morals and values already reflect which type of content is acceptable to steam and share. Reasonable limitations can be implemented in the aspect of net neutrality. Meaning that Canadians still have the ability to impose certain limitations on what type of content should be hosted online. An example of a reasonable limit of content on the internet would involve that one can host only certain types of pornographic images of individuals who are consenting adults, but not individuals that are under the age of eighteen or nineteen.
Or be able to openly advocate murder towards a specific individual. Limitations which would be not reasonable would be if an ISP where to remove anything to do with Burger King off of the internet, but promote everything to do with McDonald’s on the internet. Network service providers have a responsibility to host and provide content of all sort with out bias. Including net neutrality with in a proposed piece of legislation, and clearly defining legally is essential in the progress of the internet. With out net neutrality, eventually everything on the internet is individual is exposed to generally can be restricted. Open and fair access to content on the internet should be denoted as a freedom & right with in itself. For the content on the internet is mostly used for educational purposes. To enhance the life of an individual is the purpose of the internet. To go against net neutrality would then essentially have to mean that one would be going against freedom of choice. Which leads to discrimination, and this is because it is discriminatory to restrict access to content based on monetary incentives. The internet is a platform which is public domain, and which means that all content on the internet is public domain. Meaning that it can be accessed by anyone at any point or time. Due to this fact that the internet is public domain, then it would be discrimination to restrict access to that information.
The Canadian Human Rights Act (1985) Sections (5a)(5b); “It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public (a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or (b)to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.” For this reason it would be discriminatory to refuse access to a customary available service to the general public.The internet contains unlimited quantities of information that will exponentially grow until the end of time. It is important to denote that the internet indeed is a platform that is open to all of the public. The internet should remain free. Cost is associated with the operation of the internet, but free in this context does not correspond with cost. The internet should remain a free and open platform because of the function of the internet. The function of the internet is to be a platform that is utilized to freely share information through cyberspace. Meaning that any type of information can be passed through this network. Expressions and ideas are constantly shared for the evolutionary nature of society. This is an important function for social and societal progress. If this function does not exist, then the evolution of humanity would be impeded significantly. Progression in humanities evolutionary efforts is essential in the survival of mankind. Another important aspect to a free internet is the importance of it as a fair platform for competition. Meaning that not only giant multinational corporations can compete in certain aspects, but the common every day individual has a fair competitive advantage. The internet allows for economic prosperity for every individual, despite class,race,and ethnicity. Of course there are many multinational corporations, along with the ISP’s that go against the notion of a free and open internet.
A precedent setting case for instance can be seen in the dispute between TekSavvy Solutions and Voltage Pictures in 2012. Voltage Pictures LLC v. John Doe and Jane Doe (2014 FC 161) ;The dispute was based on subscribers of TekSavvy Solutions illegally downloading Voltage Pictures movies. Due to this occurrence, Voltage Pictures chose to take recourse, and essentially demanded that TekSavvy Solutions turn over the data of those subscribers. So Voltage Pictures can take the affair in their own hands, and possibly charge those individuals who had downloaded their movies. The court accepted the request of Voltage Pictures that TekSavvy disclose these individuals information. Precautionary measures though where instilled to protect TekSavvy’s subscribers. These precautionary measures were implemented due to the arising concern of “copyright trolling.” Copyright trolling is the term used to denote a plaintiff that goes through the process of a lawsuit just to essentially make a quick buck. The court imposed conditions; such as once Tekksavy discloses their subscribers information to Voltage Pictures that information must remain confidential from the public. Also imposed a maximum cap of $5000 CSD in fees. Copyright trolling is a major issue in the United States especially for instance. This is how come there are so many cases of people being brought to court for pirating movies. Then getting arbitrary charged large sums of money, as well with long prison sentences. In Canada there is a big concern in regards of large multinational corporations abusing copyright laws, just to make a quick dollar.
In the case Voltage Pictures LLC v. John Doe and Jane Doe (2014 FC 161) a quote will be derived;“…the rise of so-called ‘copyright trolls’- plaintiffs who file multitudes of lawsuits solely to extort quick settlements- requires courts to ensure that the litigation process and their scarce resources are not being abused.” This essentially states the concern not only for the common everyday man, but also states a concern by the courts. The concern of the courts being that the abuse of these type of charges will result in an over abundance of these cases, which will slow down, and will use unnecessarily large quantities of resources of Canada’s criminal justice system. The courts are more concerned realistically about actual criminals. Not to just detain and charge individuals unnecessarily, which in all reality are just petty criminals. Which actually are just committing petty theft. Potentially ruining the lives of people, because some guy just downloads a song is unethical. Extortion is extortion no matter which party is involved. The individuals that host, and distribute this content in a sense should be the ones held liable. Not the individuals that choose to download the stolen movie, game, song, picture, and so on. Simply based on the fact that the trafficker is a greater concern than the possessor. If the approach is taken to make it a criminal activity to share information, then at least go after the people responsible for the distribution of this stolen content. A belief is held that the internet is a free platform. Meaning that anything and everything on the web can be shared, will be shared, and will be disturbed globally. Despite the owner of the content. In essence the content even that is intellectual property, more than less is the property of not only the intellectual that created the content, but also the property of the public. Meaning if that content is already in the public, then the public should be able to share the content freely. Essentially copyright in regards to a digital platform should not be upheld so highly. If an individual is distributing stolen content, and then selling that stolen content. Then of course that individual should be charged for copyright infringement. If the distributor of the content though is not associating a fee, then it should not be considered a criminal offense to share that content. The internet is the main avenue for sharing and spreading information. It is primarily used not only for convenience, but also to denote the human evolutionary process. The internet is not owned by any individual or corporation. The internet is an independent entity, composed of billions of networks world wide. No man, corporation, or government can limit the internet.
As the future decades approach, the emphasis and role of the internet will be a greater force. Meaning that proper regulations are imposed, and improper ones should be completely disregarded. With the dawn of the internet a revolutionary process has taken place.Not only in the sense of evolutionary process of general enlightenment, but also in the sense of humanities first glance at true and unlimited freedoms. Of course as the Charter states in the preamble; “ The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Essentially stating that it is time the internet should be recognized not as a privilege, but an individuals right. In order to successfully regulate the internet, the proper precautions should be taken.
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