• Population: 31,271,000
  • Internet users: 16,110,000 (2002)
  • Average charge for 20 hours of connection: 10 euros
  • DAI*: 0.78
  • Situation**: good

Canada is one of the world's 10 countries best-connected to the Internet. Though just as advanced in this way as its neighbour, the United States, it goes much less far in monitoring online activity. The government has chosen consultation and dialogue with the private sector and civil society. However, a Canadian court recently took a dangerous position on the responsibility of website editors for online material.

An Ontario judge agreed in January 2004 to hear a libel case against the US-based website of the Washington Post, a decision with ominous implications for Internet law. UN official Cheickh Bangoura was accused in the paper in 1997 of serious professional errors while he was working in Kenya that year. Since then, Bangoura has become a Canadian citizen and sued because the article could still be read online in Canada.

Dangerous legal precedent

The judge unexpectedly ruled that the paper "should have reasonably foreseen that the story would follow (Bangoura) wherever he resided" and noted that material was put on a website with intent to reach a wider audience. He thus indirectly referred to the Gutnick case (see Australia chapter in 2003 Internet Report) and said editors were not forced to post articles online. He added that the more important the subject of the article, the more careful editors should be.

Until then, only judges in France and Australia had agreed to rule on the content of websites based in other countries. The Canadian decision added to the legal uncertainty about the issue and said online material could be considered as published in all countries where it could be read. Does this mean an site editor can be hauled up before a court in any country? The ruling is dangerous because it could make website editors censor themselves for fear of being prosecuted abroad.

Threat to secrecy of journalistic sources

After the 11 September attacks, Canada passed an anti-terorrist law in December 2001 that undermined the right to secrecy of journalistic sources. It amended the criminal code, the National Defence Act, the Official Secrets Act and the law about individual freedoms. Changes to the Criminal Code extended online surveillance of criminal organisations to cover terrorist groups and police no longer have to show such monitoring is a last resort, though it still has to be ordered by a senior judge. The authorised duration of it was increased from 60 days to a year.

A change in the National Defence Act now allows the defence minister to authorise the Communications Security Establishment (CSE) to intercept private messages (including online ones) linked to activity defined by the defence minister (article 273.65.1). The principle of e-mail privacy and the protection of journalistic sources has clearly been destroyed. The CSE's rules, however, say it cannot monitor Canadians or people resident in Canada.

The new measure was used against the media when police searched the home of Ottawa Citizen journalist Juliet O'Neill on 21 January 2004 in an effort to discover her sources for an article she had written two months earlier. She now risks being prosecuted.

Legal access to personal data

The government began consultations in late August 2002 about adapting to new technology various laws allowing prosecutors legal access to private documents in the supposed interests of the security and welfare of Canadians. It proposed that all ISPs must ensure they had the technical means to provide legal access to their data by national security officials. The government wants them to keep a complete record of all Internet activity of customers for six months, with a court order required for retention longer than that.

The Internet freedom group Electronic Frontier Canada (EFC) called the proposal a "vague and unjustified plan for intrusive covert surveillance of private communications that clearly threatens the fundamental values and fabric of Canadian society," including the right to privacy, protected by article 8 of the national constitution. It also criticised the lack of monitoring of the interception activity and the cost of the measures for ISPs.

It slammed a proposal by the national police chiefs' association to set up a nationwide database on ISP customers, which would mean introducing precautionary general surveillance of Internet users beyond the control of courts. The EFC also fears the government will systematically record all Internet activity and e-mails.

The proposals were fiercely attacked by Privacy Commissioner George Radwanski in a report in late January 2003. He accused the government of using the 11 September attacks as an excuse to collect and use more and more data about private individuals. Such measures had no place in a free and democratic society and showed the government's contempt for privacy, he said.

The authorities are still consulting police, community groups, individuals and the Privacy Commissioner himself about the proposed law.


* The DAI (Digital Access Index) has been devised by the International Telecommunications Union to measure the access of a country's inhabitants to information and communication technology. It ranges from 0 (none at all) to 1 (complete access).

** Assessment of the situation in each country (good, middling, difficult, serious) is based on murders, imprisonment or harassment of cyber-dissidents or journalists, censorship of news sites, existence of independent news sites, existence of independent ISPs and deliberately high connection charges.


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