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Queen's University
 

Kubashian (2006)

Is a web server responsible for hate messages posted on a client's website?

Facts

In 2001, Richard Warman started monitoring the websites of the Tri-City Skins and the Canadian Ethnic Cleansing Team, two neo-Nazi groups based in Southern Ontario. For a year, he tracked the material on their websites (Tri-cityskins.com and wpcect.com) and conducted an investigation to discover the identity of those persons responsible for posting it. In 2002, Warman filed a complaint with the Canadian Human Rights Commission alleging that Alexan Kulbashian, James Scott Richardson, Tri-City Skins.com, Canadian Ethnic Cleansing Team (CECT), and Affordable Space.com (the server) had communicated/or caused to be communicated messages over the Internet that exposed individuals who are non-Christian, non-Caucasian, or of "other" national ethnic origins, to hatred or contempt, contrary to s. 13 of the Canadian Human Rights Act. The Canadian Press labelled this case as "ground-breaking" because it was the first time that a web server was found responsible for the messages posted on its client's sites.

Issues

  1. Is material sent over the Internet a "communication" within the meaning of s. 13 of the Act?
  2. Is the material in this case likely to expose a person or persons to hatred or contempt?
  3. Did Mr. Kulbashian or Mr. Richardon repeatedly communicate Hate Messages on Tri-cityskins.com and wpcect.com?
  4. Is the web server, Affordable Space.com, be held liable for hate messages posted on the sites it hosted?

Rulings

  • Yes
  • Yes
  • Yes and No
  • Yes, exceptionally

Reasoning 

  1. Even before the enactment of the Anti-Terrorism Act, S.C. 2001, c.41, s. 88, which amended s. 13 the Act to include all forms of internet communication, a number of human rights cases had set a precedent for this inclusion (Zundel, Machiavelli, Kyburz).
  2. The Tribunal endorsed the Taylor and Nealy definitions of hatred and contempt. Using the Supreme Court's determination (in Taylor 1990) that s. 13(1) refers to unusually strong and deep-felt emotions of detestation, calumny and vilification, the Tribunal ruled that the material on the two web sites was likely to expose persons who are non-Christian (namely of the Jewish and Muslim faiths) or non-Caucasian, to hatred and contempt on the basis of their race, colour, religion, or national/ethnic origin.
  3. The Tribunal determined that Mr. Richardson and Mr. Kulbashian were members of the Canadian Ethnic Cleansing Team and that both posted material found to comprise Hate Messages on its website wpcect.com.  There was insufficient evidence linking the two respondents to any of the material posted on Tri-cityskins. com. 
  4. S. 13 of the Act provides that an owner or operator of a telecommunication undertaking through which hate messages are communicated can not be found responsible for discrimination if its facilities were used by others for the transmission of that material. Mr. Kulbashian operated a firm, under the name Affordable Space.com, which provided hosting services for websites that included tri-cityskins.com, wpcect.com, and vinlandvoice.com. However, Mr. Kulbashian is saved by section 13 (1) because unlike an anonymous web server, he was fully aware that many of his clients were using his web services to communicate messages that violated s. 13; in fact he actively encouraged racist groups to use his services to post such hateful material.  

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000