by Samuel E. Trosow**

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At its May 2007 meeting, the London Public Library (LPL) Board adopted an Internet Policy Review Project, (2) the purpose of which was "to review the balance between filtered and non-filtered computers to determine an appropriate balance of filtered and non-filtered machines."

The management recommendation identified factors to be studied including "an individual's experience in the library in terms of unintentional exposure to visual images not appropriate in a general library setting" and "the steps the library can undertake in order to mitigate risk of exposure to such images for its customers and itself."

The report also indicated that LPL had "received negative comments on an infrequent but regular basis from customers at Central and at Branch locations about these types of incidents," and that LPL's "mission statement and value promise assures customers that we will provide a welcoming environment for all people, such as families and children, and pays attention to the individual's experience in the library." While the stated intent was to experiment with the balance between filtered and non-filtered terminals, the default for the five-month review period was to filter all but a few of LPL's terminals, as well as wireless access. Terminals in the children's areas had been filtered since 2001.

Public opposition to the plan quickly surfaced, (3) and in June two trustees, Gina Barber and Nancy Branscombe, sought to rescind the May action. The chair ruled their motion out of order and it was matter was deferred to the September meeting where there were additional staff reports (4), more presentations from filtering opponents, and a presentation from the filtering vendor.

While the Branscombe/Barber motion to rescind was defeated 6-2, there was much more discussion around the table and some good questions were asked of the filtering vendor. In November, despite submissions from CLA (5) and the Faculty of Information and Media Studies (6) at Western, the Board voted 5-4 to continue the project indefinitely. (7)

In June 2008, the LPL Board received a staff report (8) along with submissions asking for additional information, (9) that the Board refer the project to a third party evaluation, (10) as well as a letter from a public interest law clinic advising the Board of several constitutional issues that they need to consider. (11) The board is now seeking their own legal opinion (something they probably should have done a year ago) and there will be a further report to the Board in the fall.

What distinguishes the London filtering controversy from others is that the impetus for filtering came from LPL management. Throughout the controversy, LPL downplayed the tensions between filtering and intellectual freedom, and the important tradeoffs involved. In other similar situations, librarians have typically opposed filtering demands, and have sought moderation and compromise. For instance, at the Ottawa Public Library in 2003, demands for filtering coming from staff were resisted by management, and a compromise was reached whereby adult users choose a filtered or non-filtered session. (12)

How would the Canadian Courts respond to a challenge to Internet filtering in a public library brought under the Charter of Rights and Freedoms? Unlike the United States, where Internet filtering has been directly addressed in several cases, (13) Canadian courts have yet to directly address the issue.

Since blocking access to lawful Internet content is a prior restraint of protected expression, how might Canadian courts respond to a challenge of LPL's filtering under the Charter of Rights and Freedoms? Under the precedents that have arisen in other expression cases, a court would likely find filtering to be a violation of expression rights under Section 2B. The outcome would turn on whether filtering is justified under Section 1 as a reasonable measure "prescribed by law as can be demonstrably justified in a free and democratic society."In cases involving obscenity, (14) hate-speech (15) and child pornography, (16) Canadian courts have found the expressions as within section 2B, but that limitations were justified under section 1. There seems to be little question that a court would also find Internet filtering as limiting expression protected by section 2B and the inquiry would turn to justification under section 1.

An initial issue under section 1 is whether filtering is even a measure prescribed by law. The blocking decision is delegated to a proprietary computer algorithm, and the public lacks access to underlying decision rules about how it works, and attempts to obtain this information through applicable Access to Information legislation has been resisted. (17)

Assuming LPL could overcome this problem, they still have the burden of justifying the limitation on expression under what is commonly known as the Oakes-test.

Under the Oakes test, a court first looks at the importance of the objective of the limiting measure, which must be of sufficient importance to warrant overriding a constitutionally protected right or freedom. The documents before the Board identified the underlying objective as reducing the risk of unintentional exposure of customers to images, on computer screens in the library, that are not appropriate in a public space. While this objective is rather general and open-ended, it's likely that a court would find this to be a reasonable objective and they would go on to the next step which looks at the means chosen to reach the objective.

There are three aspects to this second prong of the Oakes test. First, there must be a rational connection between the objective and the limitation, it cannot be arbitrary or capricious. Second is the minimal impairment test, which considers whether there are
other reasonable ways to satisfy the objective that would have less impact on the right being considered. Finally, a court would balance the objective and the means employed to reach the objective for proportionality.

It is in these latter stages of analysis that the London measure would face its greatest challenges. As the record before the Board indicates, the incidents were admittedly infrequent. A review of documents obtained under MFIPPA confirmed not only the infrequency of these complaints, but the fact that they could have been dealt with under existing policies. LPL will also have difficulty passing muster under the minimal impairments test, as various less restrictive alternatives had been suggested and were not adequately considered by the Board as alternatives. A court would likely find that filtering adult terminals and the wireless environment to be a prior restraint infringing section 2B of the Charter, which is not justifiable under section 1.

However, beyond the impact of a legal challenge, there are deeper implications of subsuming questions of intellectual freedom within the rhetoric of customer service. Embracing a strong version of the customer service paradigm, stressing a reactive stance to all public concerns no matter how unrepresentative or unreasonable, cuts at the heart of the meaning of public library service and sets the stage for the erosion of important library values. Where values of intellectual freedom and customer service collide, the latter may well prevail unless decision-makers have a strong grounding in, and appreciation of, the values of the profession and the overriding importance of intellectual freedom. (19)

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* this is an expanded version of an article first published in OLA Access Magazine, Summer 2008)

**Associate Professor University of Western Ontario, Faculty of Law and Faculty of Information & Media Studies

(1) For general background information on filtering controversies in the U.S., see http://www.ala.org/ala/oif/ifissues/filtersfiltering.cfm and http://www.librarylaw.com/Intellectual.html and http://www.aclunc.org/issues/technology/say_no_to_library_internet_censorship.shtml . For resources on filtering in Canada, see http://www.ualberta.ca/~aschrade/internet/resources.htm See also Alvin Schrader, "Internet Filters: Library Access in a Cyberspace World" http://www.ifla.org/faife/papers/others/schrader.htm and Ann Curry & Ken Haycock, "Filtered or Unfiltered?" (2001) 47:1 School Library Journal.

(2) http://www.londonpubliclibrary.ca/files/u3/aboutmylibrary/boardreports/may2007/Internet_Policy.pdf

(3) See letters to LPL Board from Samuel Trosow, Roma Harris and Toni Samek (June 2007).

(4) http://www.londonpubliclibrary.ca/files/u3/aboutmylibrary/boardreports/sept2007/ifmonitoring.pdf and
http://www.londonpubliclibrary.ca/files/u3/aboutmylibrary/boardreports/sept2007/net_Policy_Review_Project_-_Backgroundsusrev.pdf

(5) http://www.cla.ca/AM/Template.cfm?Section=News1&CONTENTID=3739&TEMPLATE=/CM/ContentDisplay.cfm

(6) http://www.fims.uwo.ca/news/internetfiltering-motion.pdf

(7) Another trustee (City Councilor David Winninger) joined Branscombe and Barber in opposition, but a fourth (Joanne Tilley, who represents London District Catholic School Board on LPL) voted no because she wanted all terminals filtered without exceptions. The adopted measure retains a small number of unfiltered machines.

(8) Public Computer Use and Internet Access Policy Update http://www.londonpubliclibrary.ca/files/u3/aboutmylibrary/board/reports2007/july/Public_Computer_Use_and_Internet_Access_Policy_Update.pdf

(9) Letter from Samuel Trosow (June 2008).

(10) Letter from Bill Irwin. (June 2008).

(11) Letter from David Fewer, Canadian Internet Policy and Public Interest Clinic (June 2008)

(12) See http://www.biblioottawalibrary.ca/explore/about/policies/internet_access_e.html and http://www.cippic.ca/internet-censorship-in-public-libraries/ .

(13) See Reno v ACLU http://www.ciec.org/SC_appeal/decision.shtml (reaffirming that communications over the Internet deserve the highest level of Constitutional protection);US v ALA http://www.supremecourtus.gov/opinions/02pdf/02-361.pdf (upholding Children's Internet Protection Act against ALA challenge). See also http://www.ala.org/ala/oif/ifissues/issuesrelatedlinks/courtcasesagainst.cfm for links to other US cases.

(14) R.v Butler 1992 CanLII 124 (S.C.C.).

(15) R. v Keegstra 1990 CanLII 24 (S.C.C).

(16) R. v Sharpe 2001 SCC 2 (CanLII).

(17) A series of records requests pursuant to the provincial Municipal Freedom of Information and Protection of Personal Privacy Act (MFIPPA) have been served on the LPL and are now on appeal in the Office of the Ontario Information & Privacy Commissioner. (request 1, response 1, request 2, response2, request 3, response3)

(18) R. v. Oakes, 1986 CanLII 46 (S.C.C.), [1986] 1 S.C.R. 103. Cases applying the Oakes-test to section 2B challenges include R.v Butler 1992 CanLII 124 (S.C.C.)(upholding obscenity provisions of Criminal Code); R. v Keegstra 1990 CanLII 24 (S.C.C.) (limiting harm cause by hate-speech a legitimate interest); Thompson Newspapers v Canada, 1998 CanLII 829 (S.C.C.) (banning publication of opinion polls within three days of election not based on legitimate interest); RJR v Canada 1995 CanLII 64 (S.C.C.) (rational connection and legitimate objective exists for curbing cigarette ads); Little Sisters Book and Art Emporium v Canada 2000 SCC 69 (CanLII) (administrative failures in applying the Customs Tariff Act were sufficient to grant relief and additional guidelines were established). Little Sisters maintains an archives of documents relating to their ongoing controversies with the government at http://www.littlesistersbookstore.com/index_court.html . (The page was classified by Netsweeper as pornography even though it contained no images, so it would have blocked at LPL. It was last tested at http://www.netsweeper.com/Support/Test%20A%20Site on April 14, 2008 with a result of 23 pornography. As of June 20, 2008, the site has been re-classified and is no longer classified as 23 pornography. While it is good that Netsweeper has corrected this obvious mistake, it is not clear how this classification was assigned in the first instance and why it remained in tact for so long.

(19) LPL Board members Branscombe and Barber have been awarded the 2008 CLA Award for the Advancement of Intellectual Freedom. (http://www.cla.ca/AM/Template.cfm?Section=News1&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=5095