Technically Beautiful? The SCC and the Internet Age
Today marks an interesting anniversary in the Court’s jurisprudence. Ten years ago today, the Supreme Court released its decision in the case of U.F.C.W., Local 1518, v. KMart Canada Ltd.,  2 S.C.R. 1083. There, a unanimous Court held that a law prohibiting union members from distributing leaflets at secondary sites during a labour dispute was an unjustified violation of s. 2(b) of the Charter.
This ruling is also notable, however, for the following passage. At paragraph 43, Cory J. wrote for the Court that “it is well nigh impossible to distinguish between the situation whereby consumers are informed and persuaded not to buy through leafleting at the place of purchase, and the situation whereby the same consumers are informed and persuaded not to buy through leaflets delivered to the mailbox, newspaper advertising, internet mailing or billboards and posters.”
With these words, Cory J. ushered in the dawn of a new era in the Court’s jurisprudence. Specifically, this ruling marks the first appearance of the word “internet” anywhere in our top court’s jurisprudence. And so it was, in the dying days of the millennium and with Antonio Lamer’s decade-long tenure as Chief Justice drawing to a close, that the Supreme Court of Canada officially stepped into the internet age.
A decade later, this occasion offers an interesting opportunity to contemplate the impact broad social changes such as the rise of the internet have upon the way judges decide the law. In this article I will explore and offer some brief commentary on how the Supreme Court has substantively engaged this relatively recent social phenomenon. To this end I will analyze three aspects of the Court’s engagement of the internet: the frequency of references to the internet, the content of references to the internet, and the timing of the very first reference to the internet.
There is no question that the rise of the internet has had a profound impact upon society as a whole. For about a quarter of the world’s population, and three-quarters of Canadians, it has dramatically reshaped nearly every aspect of our lives. However, how much of the internet’s undeniable effect on society has spilled over into the courtroom?
Frequency of references to the internet
If one were to judge by how often the Supreme Court explicitly refers to the internet, the answer to the above question appears to be, “not much.” In the ten years since UFCW, the word “internet” has appeared in just 24 other Supreme Court judgments. In many of these cases, the word appears merely incidentally in the narrative of the facts, or in the name of another case, or in a quoted passage. Thus, it seems that the internet, for all its tremendous impact on Canadian society at large, has only infrequently been explicitly factored into the policy reasoning of a Supreme Court decision.
Content of references to the internet
Nevertheless, it is apparent from these decisions that one of the primary issues the Court has had to grapple with is how to transpose the unique characteristics and realities of internet communication onto laws which were designed to regulate more traditional forms of communication. Thus, in Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34,  2 S.C.R. 801, the Court considered whether a clause of an online contract accessed by hyperlink is an external clause (it is not), while in R. v. Hamilton, 2005 SCC 47,  2 S.C.R. 432, the Court considered whether an email advertising “Top Secret” files which, unbeknownst to the sender, contain instructions on how to make bombs and break into houses fulfills the traditional mens rea requirement for counselling those offences (it does not).
The Court has acknowledged the difficulties that these sorts of determinations pose. In her dissenting opinion in Robertson v. Thomson Corp., 2006 SCC 43,  2 S.C.R. 363, Abella J. notes that “[i]n applying the Copyright Act to a realm that includes the Internet and the databases at issue in this case, courts face unique challenges” (before adding that “in confronting them, the public benefits of this digital universe should be kept prominently in view”).
In other decisions, meanwhile, the Court has offered a brief glimpse into how the internet’s broader impact on society has informed other types of legal determinations. Thus, in restoring the harsher sentence imposed by the trial judge for a child pornography offence in R. v. L.M., 2008 SCC 31,  2 S.C.R. 163, LeBel J. noted at para. 28 that “[t]he use of this medium [the internet] can have serious consequences for a victim. Once a photograph has been posted on the Web, it can be accessed indefinitely, from anywhere in the world. R.M. will never know whether a pornographic photograph or video in which she appears might not resurface someday.”
The decision with the most extensive and interesting treatment of the internet, however, is Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45,  2 S.C.R. 427 [SOCAN]. There, the Court confronted several issues with respect to the internet, such as the territorial scope of Canadian legislative authority over internet communications, as well as the liability of internet service providers located in Canada for copyright infringements committed via such communications.
This case offers a stark demonstration of the “unique challenges” posed by the internet. Just five years before, the word internet did not even exist in the Court’s vocabulary. In SOCAN, however, the Court had to do more than simply offer broad observations on the sociological impact of the internet. They had to delve into the actual machinery of the internet and develop a heightened technical understanding of how it all works. The result reveals some interesting insights. Consider the following excerpt:
The Internet operates by means of a series of protocols that enable higher level applications such as the World Wide Web to operate. Transmission control protocol (“TCP”) is the most common protocol and it controls most of the applications used on the Internet. The TCP resides in both host server and end user computers and it controls the sending and receipt of packets transmitted over the Internet. However, routers and other intermediate points on the Internet have no involvement in TCP operation.
This passage contains several technical mischaracterizations and inaccuracies. The World Wide Web is not an application, at least not in the sense in which that term is commonly used in the relevant discourse. TCP is certainly not the most common protocol; for instance TCP transmissions are a subset of Internet Protocol transmissions (in the sense that every TCP transmission is also an IP transmission but not vice versa), and thus by definition less common. It is also somewhat awkward to say that TCP “resides” anywhere; it is, as its name suggests, not an object but a protocol, and to say it “resides” somewhere is akin to saying that language is something that “resides” in the mind of the language speaker. Further, it does not seem necessary to even mention TCP here; it would do simply to explain that in any internet communication it is the host server and end user computers that generate the actual substantive content of the communication, while the intermediate points merely relay the information mechanistically, just as any real-world courier service would relay a parcel. Whether a copyright-infringing internet transmission uses TCP or UDP (TCP’s main counterpart) has no impact on this basic fact. This apparent redundancy only adds to the awkwardness of the whole passage.
The purpose here, of course, is not for a trained computer scientist to smugly bash the technical shortcomings of the unfortunate jurist who is charged with making critical legal determinations regarding a highly technical and complex subject matter. Rather, it is merely to point out that it is not without some difficulty that even our top Court has grappled with the “unique challenges” described by Abella J. Ultimately, the decision in SOCAN does in most respects display a relatively sophisticated understanding of the inner workings of the internet, all the more commendable given that the word “internet” had only entered the Court’s vocabulary less than five years before. However, the judgment also exemplifies how the Court’s transition into the internet age has not been an entirely smooth ride.
Timing of the first appearance of the word “internet”
For many readers of this blog, the very date that the word “internet” entered the Supreme Court’s concordance may raise eyebrows as being a little late. Many readers may feel as if it was substantially longer than ten years ago that they entered their own internet age.
However, due caution must be exercised before passing judgment in this respect. The audience of this website is likely to comprise, for a number of reasons, a relatively tech-savvy segment of Canadian society. We must arrive at a more objective measure of when the internet truly emerged as a social phenomenon in Canada.
A rigorous and comprehensive analysis of this would involve many factors including technology, statistics, and popular culture, and it is impossible to be precise. However, a rough but satisfactory analysis can be conducted much more simply. One certainty about the exact point in time when the internet emerged as a true mass medium is that it is strongly linked to the emergence of the World Wide Web, the global network of HTTP servers interconnected by a series of hyperlinks. And just as the internet was popularized by the World Wide Web, the World Wide Web was popularized by one significant technological development: the modern web browser.
This analysis places the definitive arrival of the internet age as no earlier than 1993, with the release of NCSA Mosaic, the first popular modern web browser. Netscape Navigator was released in 1994, and by the time Microsoft came out with Internet Explorer in 1995 and subsequently began bundling it with its Windows 95 operating system, it was seen as something of a latecomer to the game. And by 1998, the stakes had gotten high enough that the United States government saw fit to step in and, joined by 20 states, launched a massive high-profile antitrust suit against Microsoft revolving around its practice of including Internet Explorer with Windows.
It would thus seem that somewhere during that time window, the internet definitively arrived on the scene as a certifiable social phenomenon. However, despite issuing around 100 judgments per year, as it did fairly consistently during the 1990s, the Supreme Court made no mention of this phenomenon until late in 1999.
Another useful measure may be to look at when the internet first appears in the decisions of the top courts of other countries. It is important here to be mindful that internet usage did not grow uniformly across the globe, even among developed nations. Notably, widespread internet usage tended to come slower in many European countries. For example, according to the ITU, internet penetration in Canada stood at 36.19% the year UFCW was released, whereas in the UK it stood at 21.29%, and in France, just 9.13%.
However, three other English-speaking countries in 1999 had internet penetration rates comparable to Canada’s: New Zealand (41.49%), Australia (40.78%), and the United States (35.85%). The court of last resort in New Zealand at the time was the Judicial Committee of the Privy Council, so there is no apt comparison to be had there. However, the High Court of Australia first referred to the internet in August 1997, while the United States Supreme Court used the word as early as June 1996.
Thus, all factors considered, it does appear that our top court may have been perhaps 2-3 years behind the curve in beginning to (explicitly) engage the internet in its reasoning. The magnitude of this latency is a matter of perspective. For instance, with respect to the pace of developments in information technology in the 1990s, 2-3 years is like an eternity. However, in the broader scheme of things, 2-3 years to recognize and adapt to sweeping social changes of the type occasioned by the rise of the internet does not seem entirely unreasonable. Nevertheless, it certainly falls, if anywhere, on the late end of the spectrum.
It is difficult to draw definitive conclusions from these observations, due in no small part to the fact that the internet’s influence on the SCC’s reasoning is not necessarily limited to those instances in which it has been explicitly mentioned. It is harder still to comment on what this says about how the SCC adjusts to broad social changes in general. However, a casual analysis of three aspects of the SCC’s references to the internet – frequency, content, and earliest instance – does indicate that the internet has had at most a modest impact on the Court’s jurisprudence thus far. Further, in not explicitly acknowledging the impact the internet has had upon our society until September 1999, the Court was likely a little slow to react.
However, none of this is necessarily cause for concern. It is not likely to surprise or alarm many people to learn that the judiciary can be slow to react to broad social changes. Besides, much has changed since 1999. In today’s Court, all judgments are promptly made available online in two languages, and there are even webcasts of selected proceedings that can be viewed on the Court’s website. Regardless of the initial reaction time, there is no question that the Court has now fully and comfortably integrated into the internet age. The internet probably pervades every aspect of how the judges themselves do their jobs, and there is no evidence to suggest they are anything less than fully cognizant of the impact the internet has had upon our society.
At the same time, the internet has not just a sociological aspect but a technological aspect as well. It is here the SCC seems to have struggled a little. The technical missteps in SOCAN outlined above are relatively minor and I do not consider them grounds to question the overall integrity of the decision. At the same time, I also think it’s probably best that such decisions be made by people who are demonstrably comfortable with the subject matter and write knowledgeably and accurately about it. Technical mistakes of the kind found in SOCAN, though understandable, probably should not occur. Public confidence in the administration of justice must be maintained. The Court itself cannot be entirely faulted for this of course, as the judges have no special technical expertise in internet telecommunications infrastructure. However, their decisions affect the people who do and so they must be held to a high standard in this regard.
Ultimately, perhaps the problem is that the Court is simply overmatched by such highly technical determinations. SOCAN was a judicial review on a standard of correctness – meaning that the Court could not defer in any way to the expertise of the lower tribunal but had to engage the issue fully itself, in all its technical glory. Perhaps these sorts of decisions should not be making their way in front of the Supreme Court at all. Perhaps it is Parliament instead that ought to be more proactive in developing rules governing the legal aspects of internet communications. Such highly technical determinations could thus be taken out of the hands of courts and diverted to specialized panels and research groups with the appropriate level of expertise in both internet technology and the law.
It should also be noted that similar comments may apply to the Canadian judiciary as a whole. On this website, for instance, Christopher Bird has already written a post questioning the technical soundness of a decision of the BC Supreme Court.
Overall, then, the SCC has had some minor hiccups in its ten years in the internet age, but generally it has responded well to the “unique challenges” it has been confronted with. Nevertheless, there are still indications that they struggle with legal determinations of a highly technical nature, and as such are probably not best placed to resolve such issues. They may live in Ottawa – but “technically beautiful” they are not.
Join the conversation