Bringing the Internet under Charter Protections for Freedom of Expression
The internet has grown to encompass virtually every aspect of our lives, and is fundamental to how many of us communicate with, and understand the world. Given its central role in our society, it is almost absurd that it has not been considered a protected “medium of communication,” under the Canadian Charter of Rights and Freedoms.
The result of this oversight is the case of Google v. Equustek, where a BC Supreme Court judge issued an order eliminating a series of websites from google listings, not just nationally, but internationally, because it was a “convenient” way to prevent theft of Equustek’s intellectual property. This order not only reflects an ignorance of how the internet works, but also a failure to imagine the implications of this type of decision on other websites across the web.
Let’s do that now: imagine if this order was issued in relation to a defamation case during a political campaign, or maybe as part of a copyright claim against a Youtube video created by a protest group. Now hopefully, the judges in each case would consider freedom of expression issues, but under current Canadian law, they don’t have to. In the lower court decisions in Google v. Equustek, the judges certainly didn’t find the issues important to their decision making.
If this type of order was directed at a national newspaper, the court would be forced to undergo a balancing test that asks judges to weigh the necessity and proportionality of the restriction in light of the values and principles that inform the right to free expression in the Charter. But when it comes to websites, no such test is required, and decisions can be made merely on convenience.
Obviously, the ramifications of this for any of us who put content on the internet or who rely on open access to it, are huge. If this order is upheld, we will have lost a critical opportunity to stop internet restrictions in Canada and to discourage them abroad.