23 March 1998
Burnaby, British Columbia
B'nai Brith Canada requests that BC Tel inform the internet service provider Fairview Technology Centre Ltd. of Oliver B.C. that it is the policy of BC Tel not to allow the internet to be used to promote [what we wish to consider as] hatred. Further, we request that BC Tel notify Fairview that BC Tel will terminate the access of Fairview and all its customers to the Internet unless Fairview terminates the access to the internet of Fairview's customers who propagate [what we wish to consider as] hatred over the internet. [None of Fairview's customers has ever been convicted of (or even charged with) violating any 'hate' related crime in Canada.]
We note that your standard internet service agreement with customers provides that the agreement may be terminated upon notice (Clause 11). Further access may be terminated at any time there has been or is any breach of any term or condition of the service agreement [Clause 11 (iii)]. One of the terms of the service agreement is that every customer agrees to comply with BC Tel's polices respecting use of the internet as are provided from time to time, including those to which the customer is directed when using the service (Clause 2). I assume that your contract with Fairview would contain similar terms.
Fairview is hosting a number of customers who use the internet to promote [what we consider to be] hatred. [false allegation] By allowing its customers to promote [alledged] hatred over the internet without hindrance, Fairview is abusing its own access to the internet. [false statement]
Customers of Fairview that have used the access it provides to the internet to promote hatred [in the biased opinion of B'nai Brith lawyer David Matas] include the US Nazi Party [was never a customer], the National Socialist Movement, the European Nationalist Party, the Heritage Front, Skin-Net, the Euro-Christian Defence League [was never a customer] and Charlemagne Hammer Skinheads. The National Socialist Movement has been subject to police action in Britain. [and the ADL has been subject to police action in the USA for illegal spying]
The Charlemagne Hammer Skinheads have been subject to police action in both France and Britain. There have charges against members of the group in France. America Online, which was internet service provider to the Charlemagne Hammer Skinheads in France, terminated the access of Charlemagne Hammer Skinheads to the internet in September 1997. After this termination, Charlemagne Hammer Skinheads re-established access in November to the internet through Fairview and maintained that access for four months, using it to [alledgedly] spread hate, including suggesting the murder of British playwright Julia Pascal and Swiss journalist Ludwin Fischer. Only the week of March 9th did Fairview end the access [their account expired] to the internet it previously gave to Charlemagne Hammer Skinheads.
Bernard Klatt, the President of Fairview, has asserted that he has no obligation to terminate access to the internet for those of his customers using that access to promote hatred unless there is a criminal conviction against them.[no such statement was made] Legally, he is under no such restriction. Nor are you.
America Online shut off the internet access that it had provided to Charlemagne Hammer Skinheads in advance of charges laid against that group. In the United States, the site WhitePower.com was booted off its Las Vegas internet service provider, even though in the United States there are no hate speech criminal laws. [Mr. Matas conveniently 'forgets' to mention that these groups had their websites terminated due to incessant whining, complaining and implied 'blacklist' threats by jewish pressure groups, not because the ISP's believed their content violated any law]
Telus gave the internet service provider 48 hours notice, telling them they had to pull the plug on the spammer or Telus would shut down the internet service provider and all their customers would be out of business. With one hour to go, the internet service provider pulled the connection on the spammer.
MCI, a global access provider at the pinnacle of the internet system, has a no tolerance policy for spamming. They state: "We will not tolerate the use of our network for spamming or other similar abusive behaviour." MCI also prohibits other forms of email abuse, such as harassment and the posting of illegal materials. MCI considers all these practice abusive of recipients. Engaging in any one of them may result in the termination of the offender's account.
I have no doubt that your attitude to spamming is much the same as that of Telus or MCI. Yet, Telus did not require a criminal conviction in order to act. Indeed, it is not even clear that spamming is a criminal offence.
Promoting [what we consider to be] hate speech is a far more harmful activity than spamming [in Mr. Matas opinion]. Spamming, at its worst, leads to failure of the internet. Hate speech has led to the murder of millions [..in Mr. Matas opinion. The only example I can think of is the case of Denver radio talk-show host Alan Berg.]
Klatt, when asked to terminate the access of those customers of Fairview who promote hatred [FTCnet.com has never had any customer that has been convicted of promoting 'hatred', or that has ever been charged with such an offense in Canada], has raised the banner of freedom of speech. However, there is no fundamental human right to an internet service account [neither does B'nai Brith have the right to expect ISP's to act as proxy law-enforcement agents censoring websites that B'nai Brith hates to see]. An internet service provider is a commercial venture free to do business with whom it wants and free to decline to do business to whom it wants, provided it does not discriminate.[Finally, a true statement. Fairview does not discriminate against people wishing to express ideas, beliefs or opinions regardless of what they are. The only requirements are that they be responsible for their material and that it be legal in Canada. Neither myself, nor Mr. Matas are empowered to make legal rulings regarding the legality of website content. That's why we have a court system.] Moreover, there is a fundamental human right, in the Universal Declaration of Human Rights to be protected from incitement to discrimination (article 7). Advocacy of hatred is the worst form of incitement to discrimination. BC Tel, by allowing Fairview to continue in business once Fairview refuses to cut off internet access to [alledged] hate promoters, is violating that fundamental human right. [This allegation could only be true if Fairview ignored or refused to comply with a court ruling ordering removal of content or termination of access for someone convicted of violating a Canadian law.]
The responsibility to protect against incitement to hatred falls not just on the police and the courts. It also falls on BC Tel. BC Tel must form its own judgment whether or not the customers of Fairview are using their access to the internet to promote hatred. That judgment I suggest should be particularly easy to make in light of the content posted by these customers, the actions of the police and courts in other countries against them and the behaviour of other internet service providers towards them. [It is most telling that, as a lawyer, he advocates extra-judicial vigilante action to achieve his goal of Internet censorship. If he sincerely believed his rhetoric, why would he waste his time whining to a third-party like BC Tel when he could just as readily be attempting to convince a court to grant him an injunction or convince a law enforcement agency to take action?]
I appreciate that you are in no position to monitor content, because of the large volume of content that flows through your system. There is, however, a world of difference between knowing and unknowing action.
BC Tel is a member of the Canadian Association of Internet Service Providers. According to the Code of Conduct of that association [which the Simon Wiesenthal Centre admitted helping to create], members will not knowingly host illegal content (Clause 5). The commentary to that standard states that sharing information about material that has been evaluated as illegal will facilitate some preventive action. I read that commentary to say that members will make an evaluation whether content is legal or illegal and undertake preventive action. [based on the say-so of an 'unbiased' party such as the B'nai Brith, CJC or SWC?]
The Code of Conduct further states that members will make a reasonable effort to investigate legitimate complaints about alleged illegal content or network abuse and will take appropriate action (Clause 6). Upon receipt of a complaint, before action, members will notify the content provider or abuser of the complaint with a request for a response within seven days [Clause 7(c)]. [The fact that no such request was ever made by BC Tel to Fairview tends to indicate that BC Tel did not consider the whining letter from B'nai Brith's lawyer, David Matas, to be a legitimate complaint.]
I wish you to consider this letter to be formal complaint against the content that has been posted on the internet through Fairview by the US Nazi Party [not a customer], the National Socialist Movement, the European Nationalist Party, the Heritage Front [not a customer], Skin-Net, the Euro-Christian Defence League [not a customer] and Charlemagne Hammer Skinheads. The website addresses available through Fairview of the Euro-Christian Defense League and the Heritage Front are attached to this letter.
If you are to comply with the [Simon Wiesenthal Centre tainted] Canadian Association of Internet Service Providers Code of Conduct, you will make your own evaluation whether or not the content posted by these customers of Fairview is illegal or an abuse of the network. If it is either, you will take preventive action, by giving notice to Fairview that it must cut off access to those customers using the internet to promote hatred, or you will cut Fairview off. ['Promotion of hatred' is now a criminal offence in Canada. Lawyer Matas is demanding that BC Tel make a non-judicial determination of guilt or innocence regarding a criminal offence. Why would BC Tel (or any ISP) wish to take any such action in advance of, or in the absence of, a court ruling? Is this the quality of advice he dispenses to his paying clients?]
It is my own view, the view of B'nai Brith Canada, as well as the view of the police and prosecutors in Britain and France [but not in Canada] that the content that has been passing through Fairview from these customers to the internet is both illegal and an abuse of the network. If, for whatever reason, you are hesitant to make a judgment on legality, surely there cannot be any disagreement that the use of the internet to promote hatred is an abuse. [I disagree, and there can also be disagreement as to what constitutes 'promotion of hatred']
The BC Tel terms of service for tariffed services provides that BC Tel may suspend or terminate a customer's service where the customer uses or permits others to use any of BC Tel's services for a purpose or in a manner that is contrary to law or for the purpose of making annoying or offensive calls [section 22.1 (f)]. In other words, BC Tel may suspend or terminate a service, even where the use is not contrary to law, as long as the use is annoying or offensive. Again here, whatever your opinion of the legality of the material Fairview is allowing to pass through to the internet, to say the least, it is both annoying and offensive [only to Mr. Matas if he specifically makes a request to receive the material by his own choice].
Prohibition of hate speech does not violate the Canadian Charter of Rights and Freedoms. It is a reasonable limitation on freedom of speech demonstrably justified in a democratic society and the courts in Canada have so found. [none of the website content complained of have been found to be in violation of any Canadian law, or even been the subject of any charge brought before a Canadian court.]
BC Tel and Fairview are both private enterprises. As such, they are not legally bound by the Canadian Charter of Rights and Freedoms. BC Tel can refuse Fairview access to the internet [without any reason?], and Fairview can refuse its customers access to the internet [how long would they remain customers?] without either BC Tel or Fairview violating the Charter guarantee of freedom of expression, since that Charter guarantee applies neither to BC Tel nor to Fairview.
Individuals and private enterprises are however bound by the Canadian Human Rights Act. That Act states that it is a discriminatory practice to cause hate messages to be communicated [requesting a text/graphic web page is not a 'telephonic' communication] repeatedly by means of a telecommunications undertaking within the legislative authority of Parliament [section 13(1)]. [Sect. 13(1) has only been successfully applied to telephone answering machines.] BC Tel is a telecommunications undertaking within the legislative authority of Parliament. There is, I am aware, an express exception to that provision which states that no owner or operator of a telecommunication undertaking causes hate messages to be communicated by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of hate messages [section (3)].
However, I am of the view that once you have received a complaint about Fairview of this nature and you do nothing about it, it is going too far to say that the [alledged] hate messages are being communicated through facilities operated by BC Tel by reason only that the BC Tel facilities are being used by Fairview. There is more going on than that. There will have been an express decision on your part to allow your facilities to be used for that purpose, with the full awareness that they are being so used, and even though it is in your power to prevent their being so used. [False conclusion in the absence of any court ruling.] Conscious permission is far different from mere use and is much more accurately described as a cause of the communication of the [alledged] hate messages being sent via Fairview['s customers].
Conscientious citizens, whether individuals or corporations, must play their part to promote human rights standards. The International Covenant on Civil and Political Rights, which Canada has signed and ratified, obligates the governments of Canada to prohibit advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, [Article 20(2)]. That Covenant further sets out in its preamble that the state parties realize that individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and the observance of the rights recognized in the Covenant. BC Tel as a corporate citizen is under a responsibility to strive for the promotion and the observance of the right of individuals and groups to be protected from advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. [David Matas say-so does not make it so. None of the material he complains of has been legally determined to be in violation of Article 20(2).]
I note that BC Tel has its own web site combatting racism, and I commend you for that. However, your effort to combat racism will inevitably seem hollow as long as you allow your services to be used to incite [what we consider to be] racist hatred. Your commitment to combatting racism can best be shown by [vigilante] action to staunch the flow of [alledgedly] racist hatred that, because of the access Fairview provides its customers and you provide Fairview, is flowing through your system.
602-225 Vaughan Street
Winnipeg, Manitoba, R3C 1T7
Canadian Anti-racism Education and Research Society
cc: Lyle Smordin, National President, B'nai Brith Canada
Frank Dimant, Executive Vice President, B'nai Brith Canada
Dr. Karen Mock, National Director, League for Human Rights of B'nai Brith Canada
Lisa Armony, National Director, League for Human Rights of B'nai Brith Canada