Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Associate Publisher ...... Gail J. Cohen Editor ............ Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2008 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. 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Please recycle this newspaper. treal-based cyber pest who runs Atlantis Blue Capital and Ballervision.com, did not contest the case launched against him by Facebook Inc. mid-year, said The Associated Press. So, if Guerbuez pops up on your "wall" anytime soon, tell him he's been successfully sued for flooding Facebook users with dirty spams by weaseling his way into members' personal profiles and contact information. Don't give this guy a Facebook "hug." News reports say four million mer and let him know he owes the social networking site US$873 million — the largest award ever under the U.S. federal CAN-SPAM Act. Guerbuez, the now-notorious Mon- T Editorial Obiter Editor's status update: schadenfreude his is a "news feed" for Face- book Friends of Adam Guer- buez: poke this scummy spam- unwanted and offensive messages were sent to Facebookers touting a variety of sexual products and drugs during March and April. against Guerbuez by California U.S. Dis- trict Judge Jeremy Fogel, is more than double the private company's expected 2008 revenues of $250-300 million. But according to an IT web site, the amount was high because Guerbuez was found to have illegally accessed the Facebook infor- mation to launch his junk mail scheme with methods that violated the act. The award is likely more of a spammer disincentive than cash bonanza. "Does Facebook expect to quickly col- lect $873 million and share the proceeds in some way with our users? Alas, no," blogged Facebook's security director Max Kelly. "It's unlikely that Guerbuez and The amount of the judgment ordered Atlantis Blue Capital could ever honour the judgment rendered against them — though we will certainly collect every- thing we can. But we are confident that this award represents a powerful deterrent to anyone and everyone who would seek to abuse Facebook and its users." Canada's lack of anti-spam legislation could also keep Facebook from collecting, some experts have said in news reports. Meanwhile, that wasn't the only web- related legal news last week. A report authored by University of Windsor law professor Richard Moon urged the Canadian Human Rights Commission to stop policing Internet hate speech. Moon said s.13 of the Canadian Hu- man Rights Act, that allows the CHRC to probe online hate complaints, should be scrapped. Leave it to the cops to search cyberspace for mongers of hate, he said, noting the Criminal Code is well muscled to get the job done. In his report he correctly said, "The censorship of hate speech should be limited to speech that explicitly or im- plicitly threatens, justifies, or advocates violence against the members of an identifiable group." Wrote Moon: "The Criminal Code hate speech provisions, and in particular section 319(2) and section 320.1, offer an effective response to hate speech while respecting the public and constitutional commitment to freedom of expression." Agreed. Now Moon is someone we'd like to send a cyber hug. And, with that, it can be freely said: we don't hate the fact that on top of the financial smackdown, Guerbuez is banned from Facebook. — Gretchen Drummie case that pits the religious rights of a minority against the mental- ity of the post-9/11 world. The case involves the right of govern- ment to require citizens to have their photographs taken, digit- ally stored, and then displayed on their driver's licences. This specific case involves a O n Oct. 7 the Supreme Court of Canada re- served judgment in a Religious rights v. post-9/11 world Social the difficulty in determining the bona fides of one's assertion of religious grounds. The exemption was removed group of Hutterian Brethren in Alberta. They are a small Christian sect and believe that the second commandment — you shall not make for yourself an idol, or any likeness of what is in heaven above or on the earth beneath — pre- vents them from voluntarily hav- ing their photographs taken. Not all adherents of the reli- gion follow the commandment as strictly, but religious faith be- ing what it is, there's no object- ive test we can use to test the merits of their beliefs. Alberta started issuing licences with photographs in 1973 but it allowed an exception for those who objected on religious grounds. This exemption was allowed in spite of in 2003 thereby leading to this case. At that time there were all of 453 licences issued without photographs. On one side of the argument is the fundamen- tal right of freedom of religion in s. 2(a) of the Charter of Rights and Freedoms which essentially provides the right to worship one's religion and the right not to be forced to act in a way contrary to one's religious beliefs. On the other side we have s. 1 of the Charter which allows reasonable limits as can be "de- monstrably justified in a free and democratic society." On a practical level we have the rights of a small religious minority pitted against the right of a secular society to impose laws of general application for the betterment and protection of society. There can't be much doubt that requiring photographs to be taken, digit- ally stored, and then reproduced on driver's licences can be a tool used to prevent identity theft and Justice By Alan Shanoff misuse of driver's licences by po- tential criminals and terrorists. Laudable as these goals may be, a major difficulty with the case is that the photography requirement is a creature of provincial high- way safety legislation. How do we justify the use highway safety legislation as a tool to catch ter- rorists? How do we justify the use of highway safety legislation as a means of putting together a facial recognition database? Leaving aside the problem of the nature of the legislation under which this battle has been framed, how are we to balance these com- peting rights? The Hutterian Breth- ren say they cannot voluntarily al- low their photographs to be taken. So they cannot get a driver's licence and without a driver's licence they won't be able to continue their communal way of life. www.lawtimesnews.com care if some Hutterites are ex- empt from the requirement to have their photos taken. The re- ality however is that, post-9/11, many care about the ramifica- tions of a religious exemption. If the Hutterites can be exempt then so can any religious group and the fear is that somehow one of these driver's licences will be used by a criminal or terrorist. This fear is likely overblown and it is extremely improbable that one of these licences will actually be used for criminal means, but is that a risk society is prepared to take? So, in the task of balancing rights, I ask myself how deleteri- ous would it be if these Hutterian Brethren faced the choice of either having their photographs taken or losing the right to drive on public roads. They' I suspect most people don't on private communal roads. They could hire drivers to take them where they need to go. How many drivers would a small community need? And if they truly could not continue their communal way of life without the ability to drive then wouldn't that be tantamount to d still be able to drive forcing them to have their photo- graphs taken? In that case wouldn't the taking of their photographs be involuntary and therefore not a sin? I appreciate that this is getting close to forcing the Hutterian Brethren to make a religious decision, but at least they would have the power to reach the decision that best sits within their beliefs. And yet, if we allowed this re- ligious exemption, would it have any impact on criminal or terror- ist activity? Is there any credible evidence that the continuation of this exemption would have any impact on criminal activity? Is there any evidence that the exist- ence of the exemption from 1973 has had any adverse effect? Society is going to have to face the spectre of government-issued photo identity cards sooner or later. I suspect that this case is just the first round of this debate. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He cur- rently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com.

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