The government’s plans to include lawful access provisions within its omnibus crime bill has attracted mounting attention in recent days as many commentators express concern that the legislation could create criminal liability for linking to content that incites hatred and for using anonymous or false names online. The concerns started at the Free Dominion site and have since spread to Brian Lilley at the Toronto Sun and Jesse Brown’s blog at Maclean’s

As I have argued for a long time, there are many reasons to be concerned with lawful access. The government has never provided adequate evidence on the need for it, it has never been subject to committee review, it would mandate disclosure of some personal information without court oversight, it would establish a massive ISP regulatory process (including employee background checks), it would install broad new surveillance technologies, and it would cost millions (without a sense of who actually pays). Given these problems, it is not surprising to find that every privacy commissioner in Canada has signed a joint letter expressing their concerns.

Yet while lawful access raises many issues (such that it clearly does not belong in an omnibus bill placed on the fast track), I do not believe that creating criminal liability for linking or anonymous speech are among them.

Clause 5 of the bill provides that the offences of public incitement of hatred and wilful promotion of hatred may be committed by any means of communication and include making hate material available, by creating a hyperlink that directs web surfers to a website where hate material is posted, for example.

The source of the latest round of concern stems from the Library of Parliament’s Parliamentary Information and Research Service legislative summary of Bill C-51 . On the issue of hyperlinking, it states:

I must admit that I think is wrong. The actual legislative change amends the definition of communicating from this:

â€œcommunicatingâ€ includes communicating by telephone, broadcasting or other audible or visible means;

to this:



â€œcommunicatingâ€ means communicating by any means and includes making available;

The revised definition is obviously designed to broaden the scope of the public incitement of hatred provision by making it technology neutral. Whereas the current provision is potentially limited to certain technologies, the new provision would cover any form of communication. It does not specifically reference hyperlinking.

I recognize that one could make an argument that a link could be included within communicating by any means or making available, but that strikes me a big stretch. The Supreme Court of Canada is examining this issue within the context of libel in the Crookes v. Newton case which should provide further guidance on the meaning of a “link” under Canadian law. In the earlier B.C. Court of Appeal decision, a majority of the court concluded that merely linking to another site does not make that person a publisher of the material found at that site. Pending the outcome of that case, I think the legislative summary likely overstates the breadth of the provision.

I similarly think the anonymity concerns are overstated. The legislative summary on this issue states:

The existing provisions of the Code regarding the offences of sending a message in a false name and sending false information, indecent remarks or â€œharassingâ€ messages (the French term â€œharassantsâ€ currently used in subsection 372(3) of the Code is replaced by â€œharcelantsâ€ in the bill) refer to certain communication technolÂ­ogies used to commit those offences, such as telegram, radio and telephone. Clause 11 of the bill amends those offences by removing the references to those specific communication technologies and, for some of those offences, substituting a reference to any means of telecommunication. As a result, it will be possible to lay charges in respect of those offences regardless of the transmission method or technology used.

This summary had led to concerns that this prohibits false names on the Internet. The problem with the summary is that it doesn’t mention that the provision includes an “intent to injure or alarm” component. The full provision states:

Everyone commits an offence who, with intent to injure or alarm a person, conveys information that they know is false, or causes such information to be conveyed by letter or any means of telecommunication.

In other words, the offence is not conveying false information, but rather conveying false information with the intent to injure or alarm. This does not stop people from posting anonymously, unless they do so with the intent to injure or alarm, in which case arguably they should not be shielded from liability merely because they are using the Internet.

While I am skeptical about the interpretation involving linking and anonymity liability, the latest round of concerns provide a textbook illustration of why the lawful access bills should not be included in the omnibus crime legislation. Lawful access is complex legislation that touches on a very wide range of issues, many of which extend far beyond conventional criminal law. They are not part of the group of bills that advanced through the legislative process but ultimately stalled. Given that the proposals breed uncertainty and have never been the subject of committee hearings or debate, lumping them together with many other bills represents a serious threat and is bound to result in only a cursory review of an important piece of legislation.