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Is a web server
responsible for hate messages posted on a client's website?
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 labeled 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 and Rulings
- Yes and No
- Yes, exceptionally
- Is material sent over the Internet a
"communication" within the meaning of s. 13 of the Act?
- Is the material in this case likely to
expose a person or persons to hatred or contempt?
- Did Mr. Kulbashian or Mr. Richardon repeatedly communicate Hate
Messages on Tri-cityskins.com and wpcect.com?
- Is the web server, Affordable Space.com, be
held liable for hate messages posted on the sites it hosted?
Even before the enactment of
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).
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
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.
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
Human Rights Bulletin -
Contact Us - June 2007 - Queen's Human Rights