Canadian Human Rights Tribunal - landmark decision

III. WHAT QUESTIONS NEED TO BE ADDRESSED IN THIS CASE?

[7] I must address the following questions in this case:

(1) Is material sent over the Internet a "communication" within the meaning of s. 13 of the Act?

(2) What was the Internet material that Mr. Warman alleges violates s. 13 of the Act?

(3) Was this material likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination?

(4) Did Mr. Kulbashian or Mr. Richardson, alone or in concert with each other or others, communicate this material repeatedly, or cause it to be so communicated?

(5) Has the complaint been substantiated against the other named respondents ("Tri-City Skins.com", "Canadian Ethnic Cleansing Team (CECT)" and "Affordable Space.com")?

[102] Mr. Kulbashian told Mr. Wilson, during the police interview, that he ran his web hosting services through a server computer that was physically located in the United States. He did so in part because it was cheaper and more advantageous from a technical perspective, but also as a means to avoid the reach of the Canadian Human Rights Act. He explained that he was familiar with a decision of the Tribunal that had resulted in the closure of a Canadian server. He therefore "figured" that by "plugging the server in the States", he would not have to "follow the Canadian law on what I do with my server".

However, Mr. Kulbashian was aware that persons or groups of persons acting in concert were using his web services to communicate messages that contravened s. 13 of the Act, which included the material posted on the tri-cityskins.com website. One quarter of the websites that Mr. Kulbashian hosted on his server were, as he acknowledged, "racialist" in nature. Mr. Kulbashian admitted during the taped police interview that he intentionally used a server that was physically situated in the United States in a deliberate effort to avoid being subject to the Canadian Human Rights Act.
- According to s. 13(3) of the Act, an owner or operator of a telecommunication undertaking through which hate messages are communicated, is not in breach of the Act by reason only that its facilities were used by other persons for the transmission of the material. Mr. Kulbashian cannot benefit from this exemption. Aside from the fact that I find he was actively involved in the preparation of the content placed on the Canadian Ethnic Cleansing Team's Internet newsletter, the evidence is that he encouraged other groups, which he himself described as "racialist", to use his services. I am convinced that he knew exactly the kind of material that these organizations would have been posting on the Internet, including the portions of the Hate Messages that were found on the tri-cityskins.com website hosted by his firm, Affordable Space.com. It appears that he even allowed these websites to share Affordable Space.com's post office box. Mr. Kulbashian cannot therefore claim that the Hate Messages were communicated over his server "by reason only" that he happened to be its owner. On the contrary, he fostered and encouraged the use of his computer server for the communication of the Hate Messages by these groups.

There is no specific Canadian legislation that deals with the Internet as a unique medium, presenting its own distinct problems and requiring its own solutions. The Canadian Radio-television and Telecommunications Commission (CRTC) does not currently regulate the Internet. The CRTC decision regarding Internet regulation is outlined in its Final Report on New Media (May 1999).

With respect to the use of the Internet for offences such as hate propaganda, pornography, or the publication of licensed works, other laws - such as the Criminal Code and the Copyright Act - take over.