How Environment Canada ordered a Dutch web hosting company and German server group to take down a Danish web site running an American political parody
By Bill Kovarik
A Danish web administrator says he only acted under duress when he complied with a Dec. 21 Environment Canada order to take down a Yes Men political comedy web site criticizing Canada’s climate stance at Copenhagen. 
“I felt really bad promising to take the sites offline without a warrant, as I am a firm believer of the UN Human Rights,” said Ole Tange, a Danish web developer. However, had he not taken the sites down, 4,500 other sites he manages would have been kept off line.
This, said Tange, “would have been worse both from a human rights’ perspective and a business perspective.”
Environment Canada confirmed that it issued a take down request “because those websites infringe Environment Canada’s Intellectual Property Office and acts as ‘phishing’ site to the official website.” The agency declined to provide specifics on the “phishing” charge. Its request was sent through the Canadian Cyber Incident Response Center (CCIRC) to Tange’s organization PiWeb in the Netherlands. When there was no response, the request was forwarded to Serverloft, a major German Web hosting site.
But Tange did not hear about the request in Copenhagen, and the entire client list of 4,500 web sites went down without warning. Tange had no idea what was taking place.
“It is unclear why Serverloft finds it is urgent to close down the server and why Serverloft blocks more than the IP-address of the sites in question,” Tange said. “This seems to be a clear violation of the UN Human Rights Act.”
The takedown is an example of prior restraint through direct executive agency action, which is unusual for Canada and most other nations.
Ordinarily, copyright issues are handled through civil cases in courts, and server administrators are notified of court injunctions or warrants.
Prior restraint is the least acceptable form of government censorship, according to Black’s law dictionary. It is rare in print and broadcast media in Europe and North America, but free speech advocates have been concerned about the increasing number of instances of prior restraint on the web and other digital media.
Who are the “Yes Men” ?
The controversy involves the Yes Men political comedy troupe and its hoax statement Dec. 14 about the Canadian government’s reconsideration of its Kyoto commitments. The parody involved a video (still on YouTube) and the censored web sites. Few if any in the news media actually fell for the hoax, which was widely reported in the Canadian media as a hoax:
- “Canada is ‘red-faced’!” (Globe and Mail)
- “Copenhagen spoof shames Canada!” (Guardian)
- “Hoax slices through Canadian spin on warming!” (The Toronto Star)
The Yes Men have created similar parodies and spoofs in the past as a form of civil disobedience. They are known for the 2002 Dow Chemical “apology “for the Bhopal disaster and the 2005 Exxon “commitment” to helping people in the Katrina disaster area. Both were later described as “elaborate hoaxes.”
Like other hoax web sites, the Yes Men made it appear as if the government of Canada had changed its policy on climate when in fact it had not.
Unlike other Yes Men parodies, official reaction was censorious.
Why the Takedown?
Environment Canada said it ordered the takedowns (through the CCIRC) for two reasons: infringement and phishing.
Under the infringement theory, permission to reproduce logos and other government materials is controlled by the Canadian government. Environment Canada gives blanket permission for non-commercial use of its materials under Crown Copyright, provided that:
The reproduction is not represented as an official version of the materials reproduced, nor as having been made in affiliation with or with the endorsement of Environment Canada.
Ordinarily in Canada, deception or confusion of brand names is dealt with by CIRA, the Canadian Internet Registration Authority http://www.cira.ca/cdrp
For example, this year the University of Toronto asked CIRA to shut down utorontohousing.ca and, after a judicial hearing, the site was shut down.
To shut down a confusingly similar web site, a complainant has to show why a registrant’s dot-ca domain name should be considered as:
(1) Confusingly Similar to a Mark in which the Complainant had Rights prior to the date of registration of the domain name and continues to have such Rights;
(2) why the Registrant should be considered as having no legitimate interest in the domain name as described in paragraph 3.6 of the Policy; and
(3) why the Registrant should be considered as having registered the domain name in bad faith as described in paragraph 3.7 of the Policy
Environment Canada could have gone to the courts for an emergency injunction and then to CIRA, at which point the Yes Men would also have been entitled to representation. This is called due process, and a discussion concerning the boundaries of political speech could have ensued.
However, Environment Canada also told Serverloft that Yes Men were “phishing.” This would mean that they were attempting illegal identity theft, a charge that triggers immediate takedowns. So instead of taking Yes Men to court and asking for an immediate injunction, Environment Canada opted for quick action and prior restraint under the phishing charge.
Were the Yes Men were phishing?
The Environment Canada spoof site had no login information at all. “It does not require a password, so it hardly qualifies as phishing,” Tange said.
A related web site COP-15 has a non-functioning login-space, but it does not ask for existing passwords for other sites.
Parody and hoax web sites are not unusual in the US, and while news hoaxes are contrary to broadcast regulations, the First Amendment protects parody in print and web media in the US.
The porn and politics site Whitehouse.com was a thorn in the side of several administrations, for instance. And there is a long legal history of forbidding the use of copyright law to suppress political speech or criticism of public figures. ( Time Inc. v. Bernard Geiss, 1968; Rosemont Enterprises v. Random House, 1966; Mitchell estate case involving The Wind Done Gone, 2001; Sapient v. Geller, 2008)
However, Canada and Commonwealth nations have historically been able to use copyright law to punish unpopular speech, according to law professor David Vaver of York University. One Canadian case involved cabinet documents and prison manuals: A.-G. (Ont.) v. Gowling & Henderson (1984); another in the UK for defence ministry documents relating to cruise missiles: Secretary of State for Defence v. Guardian Newspapers Ltd [1984]; in Australia for foreign policy documents relating to Indonesia’s takeover of East Timor: Australia v. John Fairfax & Sons Ltd (1980).
But ALL of these cases occurred long before the development of the “instant take down” capabilities of the internet, and would presumably not have involved government prior restraint without a court hearing.
Other cases in commonwealth nations raise troubling issues. For example in Australia the government has proposed mandatory national Internet filters with a secret blacklist.
So the question in this case seems to be whether the phishing charge was justified, and under what standard it is supported. Was there some kind of clear and present danger?
Another question is whether Environment Canada was precipitous in its use of copyright law without asking for a legal hearing, even if they were on potentially solid ground with the Crown Copyright issue.
The implications of the case — that any government can order a takedown under any circumstances, without due process, without access to courts, without any route of appeal – are serious and troubling.
For more information:
The original web site (now taken down)
The Yes Men take on the controversy
The Seattle Times article on the controversy
The Straight’s article on the controversy
For background: David Vaver’s article on Copyright in Canada
Article 10 of the European Convention on Human Rights