dennis.ca

...Or, "How I Learned To Stop Worrying and Bury My Head In the Sand". The Gomery Commission has imposed a publication ban on the testimony received from Jean S. Brault, Paul Coffin and Joseph Charles Guit�, as follows:

"The expression 'publication ban' as it is used in this decision, should be taken to have the meaning those words have been given in subsection 486(4.9) of the Criminal Code, which states that "no person shall publish in any way (�) any evidence taken, information given or submissions made at a hearing", in this case, a hearing of the Commission. In my interpretation of this disposition, 'broadcast' includes a posting on the Internet."

...And the rationale:

"All of the applicants allege that the media attention which will be given to their appearances before the Commission will make it impossible for them to have a fair trial, since the jury selected to try them will inevitably be influenced by that publicity. They point to paragraph (k) of the Commission's Terms of Reference which directs me "to ensure that the conduct of the inquiry does not jeopardize any ongoing criminal investigation or criminal proceedings"; they argue that if the effect of their testimony before the Commission is to make it impossible for them to have a fair trial, I will have failed to fulfill this obligation."

This is all well and good, but let's examine this for a second -- how does the enforcement of this break down? How do the following scenarios apply?

• Does the ban affect Canadian citizens only?
• Does the ban affect Canadian-hosted websites only?
• What are the implications for Canadians who host/link to information on sites hosted outside of Canada?
• What about indirect instructions about how one could access the information?
• What if a Canadian hosts/links to information but makes pains to block access from Canadian ISPs/networks?
• What would happen if the information was hosted on a peer-to-peer network?

If anyone has any concrete information on what is and isn't permissible, I'd love to hear it. It sounds to me like nobody considered the idea that 'the Internet' might be a bit... Porous.

The US hosted website causing all of this fuss has never been corroborated as being accurate or otherwise, the source is not named, and could be a load of manure for all we know. The problem is that we can't make a judgement because we're not allowed to see the evidence.

In the meantime, publication bans simply won't work online even though Many Canadian webloggers have backed down from linking to information based on some potentially serious legal complications.

I've sent email to Electronic Frontier Canada, Electronic Frontier Foundation, and Michael Geist (Canada Research Chair in Internet and E-commerce Law at the University of Ottawa) with the questions above. I'll be curious to see if there is a response; if the folks are agreeable, I'll repost the replies here.

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[Update: 3:31am, April 4] -- Well, I guess this partially answers my questions. CTV Newsnet also revealed the US author's name tonight.