Characteristics of the Internet

• Author: David A. Potts
• Profession: Barrister, Bar of Ontario
• Pages: 28-47

28

 : Characteristics of the Internet

A. INTRODUCTION

A succinct description of the Internet and how it operates was provided by

Binnie J. of the Supreme Court of Canada in Society of Composers, Auth-

ors and Music Publishers of Canada v. Canadian Assn. of Internet P roviders,

 SCC , []  S.C.R.  at paras. –:

e Internet is a huge communications facility which consists of a world-

wide network of computer networks deployed to communicate information.

A “content provider” uploads his or her data, usually in the form of a website,

to a host server. e content is then forwarded to a destination computer (the

end user). End users and content providers can connec t to the Internet with

a modem under contract with a n Internet Service Provider.

An Internet transm ission is generally made in response to a request sent

over the Internet from the end user (referred to as a “pull ”). e host server

provider transmits content (usually in accordance with its contrac tual obli-

gation to the content provider). e content at issue here is the copyrighted

musical works in SOCAN ’s repertoire.

In its decision dated October ,  ((),  C.P.R. (th) , at p. ),

the C opyright Board provided a succ inct description of an I nternet trans-

mission:

First, the le is incorporated to an Internet-accessible server. Second,

upon request and at a ti me chosen by the recipient, the le is broken

down i nto packets and transmit ted from the host server to the re-

cipient’s server, via one or more routers. ird, the rec ipient, usually

using a computer, can reconstitute and open the le upon reception

Chapter : Characteristics of the Internet  29

or save it to open it later; either action involves a reproduct ion of the

le, again as t hat term is commonly understood.

Further judicial discussion of the Internet and its operations can be found in

the Judicial Glossary of Selected Internet Terms.

Whether the Internet has ushered in a communications revolution or

simply accelerated the changes introduced by the telegraph, telephone, radio,

movies, and television is beyond the scope of this book. Regardless, the Inter-

net is, indisputably, an entity w ith characteristics that are completely novel

and distinct from previous methods of communic ation.

One of the more comprehensive discussions of t he distinct ive character-

istics of the I nternet and cyberlibel is found in the Ontario Court of Appeal

decision of Barrick Gold Corp. v. Lope handia,  Ca nLII  at paras.

– (ON C.A.):

Is t here something about def amation on the Internet — “cyber libel,” as it

is someti mes called — that d istinguishes it , for purposes of damages, from

defamation in another med ium? My response to that question is “Yes.”

e stand ard factors to consider in de termining dama ges for defama-

tion are summarized by Cory J. in Hill at p . . ey inc lude the plaint i’s

position and sta nding, the nature a nd seriousness of the defamator y state-

ments, t he mode a nd extent of publication, t he absence or refusal of any

retraction or apology, the whole conduct and moti ve of the defendant from

publication t hrough judgment, a nd any evidence of ag gravating or miti gat-

ing circumsta nces.

In t he Internet context , these f actors must be examined in the light of

what one judge has characterized as the “ubiquity, univers ality and uti lity”

of that medium. I n Dow Jones & Company Inc. v. Gutni ck [] HCA 

( December ), that same judge — Kirby J., of the High Court of Aus-

tralia — portrayed the Internet in these terms, at par a. :

e Internet is essentially a decentralized, sel f-maintained telecom-

munications network. It is made up of inter-linking small networks

from all pa rts of the world. It i s ubiquitous, borderless, global and

ambient in its nature. Hence the term “cyberspace.” is is a word

that recognizes that the interrelation ships created by the Internet exist

outside conventional geographic boundaries and compri se a singl e

interconnected body of data, potentially amounting to a single body

of knowledge. e Internet is accessible in virtually al l places on

Earth where access can be obtained either by w ire connection or by