In the News – Online Obscenity
Toronto Internet Lawyer Gil Zvulony’s opinion was recently sought by the national and international media with respect to the legality of publishing violent and sexual acts online. The question of whether an ISP and webmaster could be criminally liable for hosting obscene material was addressed.
Gil Zvulony was commenting on the legality of posting a disturbing violent and obscene video by the “Best Gore” website. He was critical of the police for not laying obscenity charges.
The media quoted Mr. Zvulony as follows:
I can hear the argument when it was uploaded to that website: ‘They didn’t know about it.’ Okay fine. There’s no real crime where there’s no knowledge, but once they got notice of that and they allowed it to stay on there, that’s where a crime was committed in my view and police should have charged them.
It is illegal to publish obscene material in Canada. It was Mr. Zvulony’s opinon that an ISP could be held liable for knowingly publishing obscene material.
Mr. Zvulony based his opinion on his reading of Section 163 of the Criminal Code of Canada, and the Supreme Court of Canada case of R. v. Jorgensen, 1995 CanLII 85 (SCC),  4 SCR 55.
Section 163 of the Criminal Code of Canada reads:
163. (1) Every one commits an offence who
(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever; or
(b) makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation a crime comic.
(2) Every one commits an offence who knowingly, without lawful justification or excuse,
(a) sells, exposes to public view or has in his possession for such a purpose any obscene written matter, picture, model, phonograph record or other thing whatever;
(b) publicly exhibits a disgusting object or an indecent show;
(c) offers to sell, advertises or publishes an advertisement of, or has for sale or disposal, any means, instructions, medicine, drug or article intended or represented as a method of causing abortion or miscarriage; or
(d) advertises or publishes an advertisement of any means, instructions, medicine, drug or article intended or represented as a method for restoring sexual virility or curing venereal diseases or diseases of the generative organs.
Defence of public good
(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.
Question of law and question of fact
(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.
(5) For the purposes of this section, the motives of an accused are irrelevant.
(6) [Repealed, 1993, c. 46, s. 1]
Definition of “crime comic”
(7) In this section, “crime comic” means a magazine, periodical or book that exclusively or substantially comprises matter depicting pictorially
(a) the commission of crimes, real or fictitious; or
(b) events connected with the commission of crimes, real or fictitious, whether occurring before or after the commission of the crime.
(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
- Guest on Ontario Today call in show: http://www.cbc.ca/video/watch/AudioMobile/Ontario Today/ID=2243202575
- You may see the CBC “The National” video here: http://www.cbc.ca/video/#/News/TV_Shows/The_National/1233408557/ID=2241210709
- You may see the CTV clip here: http://watch.ctv.ca/news/latest/gore-website/#clip693464
- Quoted in the National Post here: http://www.nationalpost.com/related/topics/Leaving+murder+video+online+crime+lawyer/6729821/story.html
- Quoted in the Wall Street Journal here: http://online.wsj.com/article/SB10001424052702303918204577448451192923244.html
- Quoted in the UK’s Daily Mail here: http://www.dailymail.co.uk/news/article-2154727/Luka-Rocco-Magnotta-Website-hosted-video-cannibal-porn-star-hacking-gay-lover-face-prosecution.html
- Guest on the Charles Adler Show – Link to video here: http://dl.dropbox.com/u/72742731/gil%20on%20adler-2012-6-8-1.m4v