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Journalism Ethics and the Internet: Ethical Implications of Online Defiance of a Canadian Publication Ban
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The Electronic Journal of Communication / La Revue Electronique de Communication
***** EASTON ****** EJC/REC Vol. 7, No. 4, 1997 ************


JOURNALISM ETHICS AND THE INTERNET:
ETHICAL IMPLICATIONS OF ONLINE DEFIANCE
OF A CANADIAN PUBLICATION BAN


Eric B. Easton
University of Baltimore School of Law


        Abstract.  This paper tracks the reaction to a
     publication ban imposed by a Canadian court in
     a sensational serial murder case, focusing on the
     use of computer-mediated communications to defy
     the court order.  The "cybercasters" who engaged
     in that defiance also violated many of the ethical
     conventions of contemporary journalism.  Accuracy,
     objectivity, taste, and accountability were among
     the principles that seemed to be missing or at
     least distorted.  This paper examines these values
     as manifested in the new medium's "coverage" of
     this grisly story and considers the implications
     for journalism ethics generally.

        It concludes that (1) the evolving ethics of
     the new medium derive naturally from its
     technology; (2) these "online" ethics legitimately
     descend from American although not Canadian free
     press traditions; and (3) the existence of this
     new medium with its participatory, libertarian
     ethic provides a healthy counterpoint to the
     paternalism and defensiveness of mainstream
     journalism.


Introduction

     On June 29, 1991, the body of a young girl, dismembered
and encased in seven blocks of concrete, was discovered by
fishermen at the bottom of Lake Gibson, near Thorold,
Ontario.  It would be more than a week before Niagara
Regional Police could identify the body as that of Leslie
Erin Mahaffy, a Burlington teenager who had disappeared two
weeks earlier.[1]

     The following spring, fifteen-year-old Kristen Dawn
French was forced into a car in mid-afternoon not far from
her home in the north end of St.  Catharines.[2] Two weeks
later, on April 30, 1992, her naked body was found in the
brush off a side road in north Burlington.[3]

     As a bizarre story of kidnapping, sexual torture and
murder unfolded, horrifying and fascinating the Golden
Horseshoe area of southern Ontario, local press coverage was
intense, unrelenting, and sensational.[4] But the story
scarcely registered with the great U. S. media machine to
the south.[5]

     On May 18, 1993, Paul Bernardo and Karla Homolka,
husband and wife, were formally charged with both crimes.[6]
On July 6, Homolka entered a plea in a St.  Catharines
courtroom to the two manslaughter charges laid against
her.[7] She was convicted the same day by Justice Francis
Kovacs, who sentenced her to twelve years in prison.[8]

     What might have remained merely grist for the tabloids
attracted international media scrutiny when Kovacs put the
story off limits to Canadian and foreign reporters.[9]
Overnight, the story drew the attention of editors and
publishers, lawyers and legal scholars, college students and
computer hackers throughout Canada and the United States.

     At the time of Homolka's conviction, Paul Bernardo
faced two first-degree murder charges in connection with
deaths of Mahaffy and French, as well as fifty-three other
related and unrelated charges.  His trial had not yet been
scheduled, however, and Kovacs feared that details of the
case against Homolka and her plea would jeopardize the
integrity of Bernardo's trial.

     Over the objection of Bernardo's own defense team,
Kovacs closed Homolka's trial to all but accredited Canadian
journalists, families of the victims and accused, and a
handful of court officials.  He also prohibited publication,
until after Bernardo's trial, of all aspects of Homolka's
trial except for the barest description of Homolka's indict-
ments and sentence.[10]

     While the mainstream Canadian media universally
complied with Kovacs's order, even as they challenged it in
court, information and speculation about the Homolka trial
and the events leading up to it began flowing over the
Internet within weeks.  For a handful of activists with
access to this vast international network of networks,
defying the publication ban began as something of a sport.
Later, it would become a serious protest and the occasion
for vigorous debate about Canadian constitutional values.

     Meanwhile, the combination of a sensational murder
mystery, government censorship of the press, and a
convenient source of information and rumor, proved too much
for the American media to resist.  Soon Canadians without
access to the Internet were learning the proscribed details
from U.S. television, newspapers, and magazines that leaked
through the barricades erected by the Ontario government.

     This paper regards the use of computer-mediated
communications to defy the Canadian court order as a
journalistic enterprise.  The medium delivers news, opinion,
and entertainment to a potential if unrealized audience of
millions.  Its forms include electronic newsletters
available by "subscription" and public forums self-styled as
"newsgroups."  And some of its practitioners view themselves
as twenty-first century political pamphleteers in the grand
tradition of Tom Paine.

     In addition to defying the law that would silence them,
these cybercasters are evolving practices that violate many
of the ethical conventions of contemporary journalism.
Accuracy, objectivity, taste, and accountability are among
the principles that seem to be missing or at least
distorted.  This paper examines these values as manifested
in the new medium's "coverage" of this grisly story and
considers the implications for journalism ethics generally.

     It concludes that (1) the evolving ethics of the new
medium derive naturally from its technology; (2) these
"online" ethics legitimately descend from American although
not Canadian free press traditions; and (3) the existence of
this new medium with its participatory, libertarian ethic
provides a healthy counterpoint to the paternalism and
defensiveness of mainstream journalism.

           I. Trial Coverage and Publication Ban

     From the day after Paul Bernardo's arrest, the Canadian
press was all over the story.  Homolka's role in the
investigation, her potential testimony against Bernardo, and
her own culpability were also subjects of press specula-
tion.[11] The publicity was so pervasive that even the
Canadian press began to question whether Bernardo could get
a fair trial.

     To answer that question, The _Toronto Star_ interviewed
both legal and media professionals, and, as might be
expected, the responses differed.  Defense attorney Earl
Levy, for example, acknowledged that there were some legal
safeguards, including voir dire and change of venue, but
doubted they would do much good.  Peter Desbarats, dean of
journalism at the University of Western Ontario, said that
"[h]aving the process public and transparent is not just so
that the media can have exciting newscasts and newspaper
play but it's also an important part of the justice
system."[12]

     The irony of that statement would soon become apparent.
On May 18, police formally charged Paul Bernardo with first-
degree murder in the Mahaffy and French killings.  But what
really captured the media's attention were the manslaughter
charges laid against Karla Homolka, his estranged wife, the
"second suspect" police had repeatedly discussed but never
identified.[13]

     When court convened on July 5 for Homolka's trial,
Canadian and American media lawyers were in attendance, as
well as attorneys for the Crown, Homolka, and Bernardo.
Justice Francis Kovacs announced his intention to consider
the Crown's application for a "time-limited ban" on the
publication of the proceedings in the trial of Karla Homolka
until the completion of Paul Bernardo's trial.  Following an
exhaustive legal analysis, Kovacs pronounced himself
satisfied that there were exceptional and extraordinarily
compelling circumstances in this case that required him to
impose a temporary and partial ban on publication of the
trial proceedings.  "I believe that the considerations for a
fair trial outweigh the right to freedom of the press in
these exceptional circumstances," he said.[14]

     Of particular concern to Justice Kovacs, not
unjustified it turns out, was the interest and proximity of
the American media, who would not be subject to any order of
his court unless they voluntarily submitted to its
jurisdiction.  Comparing the different legal traditions of
the United States and Canada, Kovacs found there would be
little or no efficacy in any publication ban if the
courtroom were open to American reporters.  He also found
that nothing could prevent the American media from having a
"source" in the courtroom, Canadian or otherwise, if the
general public had access.[15]

     Accordingly, Kovacs admitted only accredited Canadian
journalists, the families of victims and the accused,
counsel for Bernardo, three police officers and his law
clerk.  Foreign media were excluded from the courtroom, and
no one was permitted to publish the circumstances of any
deaths mentioned during the trial.[16]

     Kovacs said the press could publish the content of the
indictment; whether there was a joint submission as to
sentence; whether a conviction was registered, but not the
plea; and the sentence imposed.  It could also report that
part of the court's reasoning that pertained to
prosecutorial discretion in sentencing only, the principles
of sentencing applied, and remarks of the court in passing
sentence on the issue of whether Homolka was a danger to the
public, although none of the psychiatric evidence on the
latter point.  The publication ban was to be in force only
until completion of Bernardo's trial on the two first-degree
murder counts.[17]

     The following day, Homolka pleaded guilty to the
charges, although the _Star_ refrained from publishing that
fact in compliance with the judicial ban.[18] For twenty-
five minutes following the plea, Crown Attorney Murray Segal
read a statement of the facts in the two murders.[19] The
_Star_ did not report even that fact, but referred to "what
was said in court yesterday about the role Homolka played in
the killing" as "shocking revelations" that visibly moved
even reporters and some court officials to tears.[20] The
_Buffalo News_ quoted Canadian reporters calling the litany
"gruesome," "gut-wrenching," and "devastating."[21] Kovacs
imposed the 12-year sentence recommended by the Crown and
Homolka's counsel.[22]

          II.  Reaction, Defiance, and Enforcement

     Public reaction to the gag order was mixed.  The _Star_
interviewed a number of St.  Catharines residents, who
variously expressed outrage and suspicion or understanding
and support.[23] Reaction among Ontario lawyers interviewed
by the _Star_ was also divided, with one calling it
"completely unfounded and disturbing," another "drastic
[but] not surprising."[24]

     Interviews with the American media, while uniformly
negative toward the gag order, revealed mixed attitudes
toward compliance.  A _Buffalo News_ reporter said his paper
would try to cover the proceedings as well as it could, as
did one television reporter.  Other broadcasters said they
had intended to comply with any restrictions on publication
to be a "good neighbor," said one but could not be sure how
they would play the story in light of the ban.[25]

     The Canadian media were also divided.  Toronto Globe
and Mail editor-in-chief William Thorsell said his paper
would appeal the ruling, while _Toronto Star_ editor John
Honderich said his paper would live with it.  Ian Donaldson,
general news editor at the Canadian Press wire service, was
quoted as saying, "The way I feel, no matter how
well-intentioned the judge may be.  . . every time Canadian
courts make a ruling like this it has the appearance of
chipping away at [respect for] our own court system."[26]

     On July 9, the _Star_ told its readers that it would
appeal the publication ban after all.  The paper changed its
position, an editorial said, because Bernardo's lawyer
opposed the ban, because the ban would be impossible to
police or guarantee, and because the publication ban
precludes public debate of what went on at the trial.[27]
The _Star_ also confirmed that the U.S. tabloid television
program "A Current Affair" was pursuing the story.[28] That
program would air on October 28, and its transcript would
later become one of the documents widely circulated over the
Internet.

     But the real threat to the publication ban was not
coming from the traditional media at all, but from that
international family of computer-mediated communications
networks.  Purported details of the Homolka-Bernardo murders
most allegedly revealed at Homolka's trial, many probably
made up out of whole cloth were making their way into
"cyberspace" through the efforts of experienced
navigators.[29] According to the _Star_, a number of
"Bernardo Billboards," electronic bulletin board systems,
were started in mid-February following Bernardo's arrest.
Many of those who participated in the electronic debates
opposed the publication ban.[30]

     Of all the computer communications traffic concerning
the Homolka-Bernardo affair, the most important was a Usenet
newsgroup called "alt.fan.karla-homolka."[31] The group was
created July 14 by Justin Wells and Ken Chasse at Chasse's
Sonic Interzone BBS, a public access bulletin board in
Toronto, and was placed in the "alt.fan" hierarchy as an
ironic comment.  Among the earliest postings were rumors
collected by Neal Parsons of Waterloo, known to the
newsgroup as "Neal the Trial Ban Breaker."  Parsons' rumors,
some with general descriptions of sources, included
allegations that Homolka knew Kristen French slightly and
had lured French into Bernardo's car; that Homolka
videotaped Bernardo's sexual torture of French; that Homolka
supplied the chloroform used to drug her own sister and
videotaped and participated in her sexual abuse; that a
Waterloo woman had already been selected as Paul Bernardo's
next victim; that Bernardo had scrubbed down his house with
an acid solution; and that police confiscated video and
physical evidence of bestiality at the house.[32]

     Additional rumors were posted by "Abdul, The Electronic
Gordon Domm,"[33] including more details of alleged sexual
torture and necrophilic acts, and by "Lt.  Starbuck,"
linking Bernardo with other missing young women.  Other
postings, variously attributed to friends of friends who had
friends with access to the courtroom or the investigation,
purported to link Bernardo to a Japanese "snuff" video
market and claimed that Bernardo cut the tendons of both
Kristen French and Leslie Mahaffy.[34]

     Enforcing the ban, police had begun investigating
various possible violations of the publication ban at the
request of the Ontario Attorney General's office,[35] and
one of the early targets was the Sept. 19 issue of the
British Sunday Mirror, which printed information that
allegedly violated the ban.[36] When the Ontario Attorney
General ordered the Mirror kept off newsstands, the company
decided to destroy nearly 1,000 copies.[37]

     Attention turned next to the planned airing of "A
Current Affair" with a segment purporting to carry details
that were revealed at trial.  Attorney General Boyd let it
be known that any Canadian cable operator who carried a
program revealing such details would be subject to
penalties.[38]

     Broadcast October 28 in the U.S., the program itself
featured little information about the Mahaffy and French
murders that had not been publicly known before Homolka's
trial, but it did offer details of Tammy Homolka's death
that paralleled those reported on the Internet by Neal
Parsons.[39] The following day, Attorney General Boyd warned
that contempt charges could be laid against any Canadians
who were found to have helped "A Current Affair" break the
ban, including anyone circulating bootleg copies of the
videotape.

     The reference was to a retired Ontario Provincial
Police officer named Gordon Domm, a resident of Guelph, and
self-styled head of a "Citizen's Coalition Favoring More
Effective Criminal Sentences."[40] Domm began his personal
war against the publication ban by circulating 50 copies of
a bootleg videotape of the American version of "A Current
Affair."[41] Domm was arrested on Nov. 19,[42] but was
released without charges while the Crown tried to figure out
if he had broken the law.[43] Domm was charged with two
counts of contempt on Dec. 2.[44]

     Even before Domm was charged, however, his story was
eclipsed by the _Washington Post_'s decision to carry a
major story on the Homolka-Bernardo affair by Toronto-based
correspondent Anne Swardson.  Of all the media covering the
story to this point, the _Post_ was by far the most
prestigious.  The story dominated the _Post_ "Style" section
on Nov. 23 under the banner headline "Unspeakable Crimes,"
subtitled "This Story Can't Be Told in Canada.  And So All
Canada Is Talking About It."  The story carried a detailed
account of Tammy Homolka's death and Karla Homolka's
participation in Kristen French's kidnapping.[45]

     Within days, the _Star_ was reporting that the _Buffalo
News_[46] and the _Detroit News_[47] were considering
reprinting the _Post_ article.  The combined _Detroit Sunday
News and Free Press_, which carried the story on its front
page Nov. 28, did offer the offending edition in Canada, but
Canadian distributors refused to sell them or removed the
front section to avoid arrest.[48] The Buffalo paper also
printed the story in its Sunday issue but not in the 4,000
copies usually distributed in Canada.[49]

     As a consequence, many Canadians crossed the border
that Sunday to buy some 3,000 unexpurgated copies of the
Buffalo News from newsstands and convenience stores in
Buffalo, Niagara Falls and Lewiston.  On their return,
Niagara Region police officers and Canadian customs
inspectors detained anyone carrying more than one copy and
confiscated the excess; by the end of the day, 61 people had
been arrested or "spoken to" and 187 newspapers seized.[50]

     With the reprinting of the _Post_ article by the
Buffalo and Detroit papers, and the spectacle of Canadians
being arrested at the border and their newspapers
confiscated, the U.S. media could hardly ignore the story
any longer.  Over the next few days, stories on the
publication ban appeared in newspapers all over the
country,[51]and _Newsweek_ magazine devoted a full page to
"The Barbie-Ken Murders" in all except its Canadian
edition.[52] Cable News Network's "Larry King Live" featured
a panel discussion on the case Nov. 29, using a tape delay
to allow Canadian carriers to delete audio portions of the
program that might violate the ban.[53] And U.S.
broadcasters, including ABC and NBC network news programs,
began reporting details that had Canadian cable companies
scurrying to block them out,[54]despite concern that such
action might violate Canadian broadcast regulations.[55]

     Incidents of defiance and enforcement became
increasingly bizarre.  A Buffalo disc jockey stood on the
American side of the Peace Bridge using a loudspeaker to
read details from the _Washington Post_ story.[56] Ontario
Attorney General Boyd said she was taking "very seriously" a
potential breach by the _Toronto Star_ when it carried a
photograph of the _Buffalo News_ on its front page.[57] And
some unknown ban-breaker placed photocopied newspaper
articles on the case on car windshields in downtown
Edmonton, Alberta.[58]

     On the Internet, enforcement was all too real, as
university computer systems were purged of references to the
Homolka trial.  On Nov. 30, for example, Roger Watt of the
University of Waterloo's Computing Services posted the
following message:

     [Provost] Dr.  Jim Kalbfleisch has ordered the
     removal of material about the trial of Karla Teale
     from the University's computer systems because the
     University is not prepared to risk being charged
     with contempt of court for violating the court
     order issued by Justice Francis Kovacs.
     Consequently the alt.fan.karla- homolka newsgroup
     is being suspended until further notice.[59]

     The computer network was not the only target of
University officials.  An article later reprinted on the
Internet revealed that Kalbfleisch's memo had also ordered
university librarian Murray Shepherd to remove newspapers
containing the offending material from its shelves.[60]

     On Jan. 30, 1994, a Carleton University student named
Shawn W. Yerxa posted the following:

     I need some help.  As most probably know, much of
     the material about the Homolka/Teale case is being
     suppressed in Canada under court order.  I have a
     few questions about how far this can go.  The
     university (Carleton) has been deleting E- mail
     and files in directories which have (it seems)
     references to the case.  The deletions are
     arbitrary and not restricted to banned material.
     For instance, I sent a copy of the court order
     (Kovacs) to a friend and it was immediately
     vapourized.[61]

     At least one of the activists was also caught in the
government's dragnet.  When Abdul inadvertently sent a copy
of the FAQ to the Ontario Attorney General's ministry, he
inadvertently compromised Lt.  Starbuck's true e-mail
address at the University of Western Ontario.  In a message
to Abdul, Reg Quinton, Western's "sysadmin," wrote:

     "The user [Lt.  Starbuck, Abdul says] had his
     account seized at the request of the LPD and has
     cooperated fully with their investigation.  The
     user's account has since been restored but he has
     been advised by both the police and the chair of
     his department that he had better behave if he
     expects to keep his account and not be
     charged."[62]

     By the end of 1993, the publication ban had transformed
the Homolka-Bernardo affair from a sensational, but purely
local, crime story to an international cause celebre.
Newspapers all over the world carried the outlawed
details,[63] The _New York Times_ and The _Washington Post_
editorialized against the publication ban,[64] and the
Ontario Prime Minister railed against the "disrespectful"
American press.[65] Canadians themselves were sharply
divided on whether the ban should have been imposed, whether
it had been effective, and whether the U.S. news media were
justified in defying it.[66] The Crown continued to defend
the ban[67]and to deny the media's standing to challenge
it.[68] The next step would be a hearing before the Ontario
Court of Appeal that began on January 31, 1994.[69]

     When Dagenais v. Canadian Broadcasting Corp.[70] was
published on Dec. 8, 1994, it did far more than settle
procedural questions.  For the first time in Canadian
jurisprudence, the Supreme Court gave equal weight to the
constitutional values of free press and fair trial.  It also
ordered judges to balance the deleterious effects on free
expression of a proposed publication ban, not merely against
the objective of preserving a fair trial, but also against
the effectiveness of the ban in achieving that objective.

     The Dagenais decision claimed for the Supreme Court of
Canada exclusive jurisdiction to hear appeals from
publication bans imposed by superior court judges like
Justice Kovacs.  So the action before the Court of Appeal
was dismissed for lack of jurisdiction.[71] On May 4, 1995,
the Supreme Court of Canada, without opinion, refused to
hear their challenge, presumably because the Kovacs gag
order would expire by its own terms before the Court could
hear the case.[72]

     Indeed, Paul Bernardo's trial would begin in earnest
two weeks later, with prosecutors revealing all of the
details of the kidnappings, rapes, tortures, and murders
that previously could not have been reported.[73] On
September 1, 1995, after a 15-week trial featuring
videotapes of his sexual abuse and the testimony of Karla
Homolka, Bernardo was convicted and sentenced to life in
prison.[74] In November, Justice Patrick LeSage ruled that
Bernardo was a "dangerous offender," virtually assuring that
he would not be paroled even after serving the mandatory 25
years.[75]

                   III.  Ethical Analysis

     Both the publication ban surrounding the Homolka trial
and the response of Canadian cybercasters posed a number of
legal and ethical questions for Canadian and American
journalists.  Was the publication ban constitutional under
Canadian law and should it be obeyed by Canadian
journalists?  Did the ban represent a human rights violation
that transcended national laws, justifying defiance by
American journalists?  And how were the answers to these
questions affected by the presence of a pervasive new medium
that enabled its users to flout not only Canadian law, but
also the ethical norms of traditional journalism?  Indeed,
are mainstream journalistic conventions of accuracy,
objectivity, taste, and accountability -- not to mention
respect for the law -- corrupted or rendered obsolete by the
new communications technology?

     Dagenais answered the first question, and Canadian
journalists generally respected the publication ban.[76]
Absolutists who see the American notion of free speech and
press as a transcendent human right would do well to examine
article 10 of the Convention for the Protection of Human
Rights and Freedoms, which closely tracks section 1 of the
Canadian Charter of Rights and Freedoms.[77] The questions
regarding the role of the press in the age of the Internet
are more difficult, and it is on those questions that the
rest of this section focuses.

     The impulse of journalists, professional or amateur, to
defy governmental restrictions on what they can publish is
as old as the restrictions themselves.  The first great
censor of the English-speaking world, Henry VIII, issued a
proclamation in 1544 "calling in and prohibiting certain
books printed of news of the success of the king's armies in
Scotland."[78]

     Today's professional journalist is far more likely to
challenge access or publication restrictions in court or in
the legislature, rather than baldly defy the law.  Excep-
tions -- refusing to reveal a source or disregarding a
court- ordered prior restraint -- are so rare they make
national news.[79] The mainstream Canadian press
scrupulously complied with the Justice Kovacs's order, and
even some American journalists opted to respect the Canadian
ban.[80]

     No such inhibitions were evident in the Internet
newsgroups and discussion lists dealing with the Homolka
trial.  While it may be debated whether these highly
speculative electronic exchanges technically violated the
publication ban, Ontario authorities treated them as illegal
and the perpetrators took commensurate defensive
measures.[81] Overriding all other considerations was their
conviction that information should be unqualifiedly
free.[82]

     Such absolute freedom is alien to the Canadian
journalistic culture,[83] and even among American
journalists, it is more a remote ideal than a practical
reality.  Moreover, professionals on both sides of the
border would agree that such freedom as does exist carries
with it at least some moral obligations.[84] As embodied in
various codes of ethics, these obligations may differ at the
margins, but many key values are nearly universal.  Among
these values are accuracy, objectivity, taste, and
accountability -- all of which were either missing or
distorted in the online "journalism" that emerged from this
case.

     A dedication to accuracy is the very essence of ethical
journalism today.  "Truth is our ultimate goal," declares
the Code of Ethics of the Society of Professional
Journalists.  "There is no excuse for inaccuracies...."[85]
Yet much of the information available over the Internet on
the Mahaffy-French murders and the Homolka-Bernardo
relationship was anything but factual, and professional
Canadian journalists knew it:

     Well, there's some horrific rumors going around
     about this case now, and the trouble is people are
     going to hear these rumors, and they're going to
     cement that in their brain, that for instance,
     that he's done some really awful things.  I don't
     know if I can get into it, but they're just wild
     rumors.  I've heard some real dillies, and the
     trouble is that a lot of people are believing
     these rumors because they don't know
     otherwise.[86]

     The frustration in _Toronto Star_ reporter Nick Pron's
words were clearly directed at the publication ban that
prevented him from fulfilling his perceived obligation to
accuracy, but may also reflect some resentment toward a
medium that so glibly scorned his profession's condemnation
of rumor and gossip.[87] It is a given, in both American and
Canadian journalism, that unsubstantiated allegations are
not to be published.[88] "To be as accurate as possible
requires reporting as facts only information for which there
is good and sufficient evidence, and no reasonable doubt
about the preponderance of the evidence."[89]

     There is no need here to discuss how often the
mainstream media fail to attain that standard,[90] although
that is clearly one source of public cynicism about media
ethics; the fact is that unsubstantiated allegations often
appear in the mainstream media with less candor as to
sources and reliability than one found in the Internet
coverage of the Mahaffy-French murders.  Most of the
purported evidence in the Homolka case presented in the
alt.fan.karla-homolka FAQ, for example, was clearly labeled
as rumor and sourced, not only to the persons who posted the
rumors, but also to their own sources.[91] Anonymity was
preserved, of course, but some guidance was provided for the
reader to use in gauging reliability.

     There was yet another safeguard for the electronic
audience.  Everyone who read this material had the ability
to reply, either privately to individual contributors or
publicly to the entire audience.[92] Posted information was
subject to intense scrutiny by readers who could freely and
vigorously express their skepticism to every other member of
the audience; everything was open to debate and argument,
and known falsehoods were mercilessly attacked.  In some
ways, cyberspace had become the very battlefield that Milton
envisioned.[93]

     This is not to say that the "truth" that emerged from
this process was as accurate or as reliable as the
professional reporting that would have occurred absent a
publication ban.  Nor does it measure the potential effect
that those purported facts might have had on Bernardo's
right to a fair trial.  That has nothing to do with
accuracy, of course; the ban was designed to suppress
truthful details.  But it does suggest a philosophical
commitment to providing the audience with as much
information as could be collected and letting them sort it
out.  It harkens back to what Conrad Fink has called a
"libertarian" philosophy concerning the press and its place
in society, a philosophy that dominated journalism ethics
until the early twentieth century saw the beginnings of
"social responsibility" journalism.[94]

     After accuracy, objectivity has become the sine qua non
of this now-prevailing journalistic ethic.  No such
constraints burdened the cybercasters studied here, and
Bernardo's guilt was overwhelmingly presumed.  On other
issues, however, a natural objectivity emerged from the
multiplicity of voices and opinions, particularly concerning
the propriety of Homolka's sentence and the publication ban
itself.  Item-by-item objectivity seems no more necessary
(or even desirable) in this context than in letters to the
editor columns, talk radio, or television town meetings.

     Taste is another mainstream ethical norm that was
challenged in this corner of cyberspace.  While the SPJ Code
calls for journalists to avoid pandering to "morbid
curiosity about details of vice and crime,"[95] the
newsgroup alt.fan.karla-homolka was arguably created to do
precisely that.  Posted rumors about evidence presented at
trial, or otherwise discovered in the investigation, were
replete with the most graphic descriptions of sexual abuse,
torture, and murder, including details that would make a
tabloid publisher blush.[96]

     Much of the graphic sex and violence associated with
the Homolka story found its way into alt.fan.karla-homolka
during the early months of the newsgroup.  Later discussions
increasingly focused on the publication ban itself and
attempts to enforce it.  The newsgroup's FAQ offered a
detailed rationale for opposing the ban, and the debates
were usually earnest and often well informed.  Anyone
looking for titillation would be better served by reading
Lethal Marriage by mainstream _Toronto Star_ journalist Nick
Pron, who serves up more than 400 pages of unrelenting
sleaze.[97]

     Finally, where the SPJ Code calls on journalists to be
"accountable to the public for their reports,"[98] the most
influential contributors to the Internet dialog on the
Homolka trial used pseudonyms like "Abdul" and "Lt.
Starbuck."  Many participants posted messages through remote
computers equipped with software that rendered them
untraceable.

     Like partisanship and sensationalism, anonymous and
pseudonymous journalism has a distinguished past.  From Cato
to James Alexander,[99] journalists have hidden from hostile
authorities.  Similar precautions were understandable here,
with police threatening to shut down computer systems that
facilitated publication ban violations.[100] But the
presence of these defensive measures did not negate
accountability, any more than they did in the eighteenth
century.  Consider the whole of the SPJ admonition:

     Journalists should be accountable to the public for
their reports and the public should be encouraged to voice
its grievances against the media.  Open dialogue with our
readers, viewers, and listeners should be fostered.[101]

     Nowhere has that notion of accountability been more
literally fulfilled than on the Internet.

                         Conclusion

     It is possible to distill from the foregoing discussion
certain norms that evolving from the use of the Internet as
a new journalistic medium in its own right (as opposed to an
electronic transmission system for print journalism).  Those
norms include notions of truth and objectivity that entail
the sifting through fact, opinion and rumor, not by a small
editorial elite for a largely passive audience, but by an
active, informed, and empowered audience, each member of
which can contribute to the product.  And they include
concepts of taste and accountability that combine
unqualified freedom for the contributor with immediate and
public reaction from the audience.

     What these principles share is that they flow from the
technology itself, naturally, almost unconsciously.  These
are not notions of right and wrong transplanted by
journalists from the "real world," but the evolutionary
norms of a new and growing communications community the
"virtual community" whose medium is the Internet.  When one
considers that the Internet was expressly designed to be a
decentralized communications medium, lacking any command and
control center,[102] these norms seem far more appropriate
than any that might be imported from conventional
journalism.

     But should this new communications be called
journalism, or should that word simply be reserved for the
more established model of professional and disinterested
reporters addressing an interested, but passive audience?
The answer lies in both the past and the present.  American
journalists proudly trace their history back to a time when
the printing press was a new technology, when ethical
principles for its use were only beginning to evolve, and
when many of the characteristics of today's cybercasters
were prevalent among printers and pamphleteers.  To deny the
appellation "journalist" to the contemporary version of
these pioneers is to deny the profession's heritage.  Today,
some of the most influential journalism being practiced --
by Rush Limbaughs and Ted Koppels alike -- is in the same
kind of interactive mode that characterizes the Internet
dialog.

     And what of the future?  Is this new journalism
destined to corrupt or even destroy the ethical structure
that journalists and their audiences have come to rely on?
Conrad Fink sees contemporary journalism ethics evolving
again from a "social responsibility" model to an "ethical-
reactive" stage characterized by defensiveness, hesitation,
and issue-straddling.  "Ethical-reactive journalism," he
says, "cannot be permitted to overpower the historic
responsibility of doing on the front page and in the 6 p.m.
news what, in the judgment of professional journalists, must
be done."[103]

     Perhaps that partly explains the mainstream press's
timorous response to the publication ban in the Homolka
trial.  If so, then the new communications paradigm
established on the Internet -- and the vitality it brings to
a repressed libertarian tradition -- may become a force for
renewal of mainstream journalism itself.  Publishers and
broadcasters do not need to share the same ethical standards
as the new medium to benefit from its spirit.

     Two recent examples may best demonstrate this legacy of
the Canadian ban-breakers.  On Feb. 28, 1997, _The Dallas
Morning News_ posted to its Web site a story asserting that
Timothy McVeigh, then awaiting trial for murder in the
bombing of the Murrah federal office building in Oklahoma
City, had confessed to defense attorneys.[104] The story was
sourced to confidential defense documents that the newspaper
claimed it obtained lawfully, but the nature and timing of
the story, as well as its unique delivery method, prompted
more than a little soul-searching within the journalism
community.[105]

     Breaking the story online enabled the _Morning News_
not only to scoop its competition (including its own print
edition), but also to avoid any possible injunction.[106]
_The Morning News_ may have been the first major newspaper
to use the Internet in this way;[107] surely, it will not be
the last.

     In an even closer parallel, Chile's largest newspaper,
_La Tercera_, recently circumvented a judge's gag order by
publishing its coverage of a sensational trial on the
Internet.[108] Judge Beatriz Pedrals imposed a news blackout
on the trial of Mario Silva Leiva, accused of operating a
multimillion-dollar drug trafficking and money laundering
ring, but only after top court officials were implicated in
the case.[109] With the assistance of a U.S.- based
intermediary, _La Tercera_ continued reporting on the case
via the World Wide Web, recording as many as 45,000 hits a
day.[110]

     _La Tercera_ told its readers that the Web site would
carry "all the news from Chile that currently is somewhat
difficult to get"[111] and characterized its coverage of the
trial as a "journalistic coup."[112] Editor Fernando Paulsen
claimed victory when the ban was lifted in late June:

     Chileans can keep up with a case that has had a
     tremendous impact down here.  In American terms,
     this would be equivalent to having set up a [Web]
     server in London to publish the Pentagon Papers.

     Opined media critic Howard Kurtz, "The Internet seems
to be making foreign censorship laws all but obsolete."[113]

                           Notes

     [1].  Cal Millar & Bruce Campion-Smith, Body in
Concrete Identified as Girl, 14, from Burlington, Toronto
Star, July 11, 1991, at A1.

     [2].  Nick Pron & John Duncanson, Police Link
Kidnapping; Friends on Alert After St.  Kitts Teen
Disappears, Toronto Star, April 19, 1992, at A1.

     [3].  Donovan Vincent, Slain Girl, 15, Discovered
Beside Road in Burlington, Toronto Star, May 1, 1992, at A1.

     [4].  This article will track the Homolka-Bernardo
story largely through the pages of The Toronto Star, partly
because of the thorough coverage it gave to this story from
July 1991 on and partly because of its accessibility through
NEXIS.  Toronto Sun reporters Alan Cairnes and Scott
Burnside also covered the story from the beginning, as did
St.  Catharines Standard reporter Ann Marie Owens.  Other
papers covering the story were the Toronto Globe and Mail
and the Kingston Whig-Standard.  Several competing books and
screenplays by reporters and others were said to be under
contract very early on.  Susan Walker, Bernardo Arrest
Sparks TV, Film and Book War, Toronto Star, April 24, 1993,
at A1.

     [5].  The Buffalo News, for example, did not begin
covering the story until December 1992.  Janice L. Habuda,
Police Find 911 Caller in Teen Slaying, Buffalo News, Dec.
4, 1992.  Of the NEXIS "Major Newspaper Files," only the St.
Petersburg Times carried brief items on the story in 1992,
and they were buried in larger multi-subject features.  Jim
Fox, Ontario May Allow Gambling, St.  Petersburg Times,
April 26, 1992, at 22A; Jim Fox, Ontario Hit with Tax Hikes,
St.  Petersburg Times, May 3, 1992, at 30A.  The arrest of
Paul Bernardo in February brought additional coverage from
Newsday and the Orlando Sentinel Tribune.  Sex Crimes
Suspect, Newsday, Feb. 19, 1993, at 14; Second Suspect in
Deaths Being Watched in Canada, Orlando Sentinel Tribune,
Feb. 21, 1993, at A18.

     [6].  Cal Millar & Nick Pron, Bernardo and Wife Charged
in Slayings of 2 Teens, Toronto Star, May 19, 1993, at A1.
Paul Bernardo legally changed his name to Paul Jason Teale
on Feb. 13, 1993, allegedly because of a family rift, but
this article will generally refer to him as Bernardo and to
his wife as Homolka to avoid confusion.  Suspect Changed
Name a Week Before His Arrest, Toronto Star, Feb. 26, 1993,
at A4.

     [7].  John Duncanson & Nick Pron, Homolka Enters Plea;
Families of Slain Girls in Tears, Toronto Star, July 6,
1993, at A1.

     [8].  Nick Pron & John Duncanson, Homolka Gets 12
Years, Toronto Star, July 7, 1993, at A1.

     [9].  See, e.g.,Canada Bans U.S.  Media from
Manslaughter Trial, Wall St.  J., July 6, 1993, at B2; Anne
Swardson, Canada Bars U.S.  Media from Trial; Judge Fears
Publicized Evidence Would Prejudice Related Case, Wash.
Post, July 7, 1993, at A25.


     [10].  R. v. Bernardo, O.J.  No. 2047, Action No.
125/93 (1993).

     [11].  See, e.g., Accountant, 28, Arrested in Mahaffy,
French Killings; Suspect Faces 42 Charges in Scarborough
Assaults, Toronto Star, Feb. 18, 1993, at A1; Philip
Mascoll, Handcuffed Suspect Smiles in Court, Toronto Star,
Feb. 18, 1993, at A1; Dale Brazao & John Duncanson,
Schoolmates Show 'Relief, Shock, Anger,' Toronto Star, Feb.
18, 1993, at A1; Moira Welsh & Kellie Hudson, Kristen's
Mother 'Relieved' by Arrest, Toronto Star, Feb. 18, 1993, at
A2; Theresa Boyle, Arrest Shocks Guildwood Neighbors - 'If
You Knew This Guy, It Just Doesn't Make Sense,' Resident
Says, Toronto Star, Feb. 18, 1993, at A3; Theresa Boyle &
Joseph Hall, Bernardo:  A Man of Many Faces, Toronto Star,
Feb. 19, 1993, at A1; Dale Brazao, Passionate Love Led to
Storybook Wedding, Toronto Star, Feb. 19, 1993, at A6;
Philip Mascoll, Suspect's Dad Awaits Sex Assault Sentencing,
Toronto Star, Feb. 20, 1993, at A15; Sally Ritchie, Camp
Leader Recalls 'Charming' Bernardo, Toronto Star, Feb. 20,
1993, at A15; Mother Lauds Police, Blasts Media, Toronto
Star, Feb. 21, 1993, at A1.  See also John Duncanson & Nick
Pron, Bernardo's Wife in Talks with Crown, Toronto Star,
Feb. 20, 1993, at A1.  See also, Jim Rankin, Suspect's Wife
a 'Victim,' Boss Says, Toronto Star, Feb. 22, 1993, at A1;
Michael Tenszen, Wife Can Testify Against Spouse If She
Wishes To, Lawyer Says, Toronto Star, Feb. 23, 1993, at A12.

     [12].  Catherine Dunphy, Can Paul Bernardo Get a Fair
Trial, Toronto Star, Feb. 20, 1993, at D1.

     [13].  Cal Millar & Nick Pron, Bernardo and Wife
Charged in Slayings; Homolka Accused of Manslaughter in
Mahaffy, French Cases, Toronto Star, May 19, 1993, at A1.

     [14].  R. v. Bernardo, O.J.  No. 2047, Action No.
125/93 (1993).  Media companies represented were The Toronto
Star, Thompson Publications, the Canadian Broadcasting
Company, The Toronto Sun, and the Buffalo News, as well as
independent author Stephen Williams.  The "special
circumstances" cited by Kovacs included:  (1) widespread,
massive, and repetitive publicity that will no doubt
continue, possibly reaching the "dew point" of whether an
impartial jury can be selected; (2) the evidence read in at
the Homolka trial is not evidence against Bernardo, but
arises from the same factual situation, and should not be
publicized; (3) inferences may be drawn improperly from the
fact that Homolka and Bernardo lived together as man and
wife; (4) the court has no jurisdiction over the American
media, which has given broad coverage to the trial; and (5)
the charges against Bernardo are extraordinarily serious and
numerous.

     [15].  Id.  Kovacs noted the case of R. v. Banville, 69
C.C.C.2d 520, appeal dismissed, 3 C.C.C.3d 312 (N.B.Q.B.
1983), involving a reporter for the Bangor (Me.)  Daily News
whose beat included the border communities of Edmunston,
N.B., and Madawaska, Me. The accused reported news, contrary
to a publication ban, which was subsequently distributed in
Canada.  At the contempt trial of the accused, who attorned
to the jurisdiction, the court held that it had both
personal and subject matter jurisdiction, notwithstanding
the fact that story was written in Maine and the newspaper
published in Maine.  He also quoted extensively from Re
Global Communications Ltd. and the Attorney General for
Canada, 10 C.C.C.3d 97, 110 (O.C.R. 1984).  In that
decision, Thorson, J., points out that the process of jury
selection in Canada is neither as prolonged nor as
exhaustive as in the United States and that sequestration is
exceptional in Canada.  "The strong bias of our system is to
prevent the dissemination before the conclusion of the trial
of media publicity that might be prejudicial to the
accused's fair trial."

     [16].  R. v. Bernardo, O.J.  No. 2047, Action No.
125/93 (1993).

     17.Id.

     [18].  John Duncanson & Nick Pron, Homolka Enters Plea:
Families of Slain Girls in Tears, Toronto Star, July 6,
1993, at A1.

     [19].  Anne Swardson, Unspeakable Crimes:  This Story
Can't Be Told in Canada.  And So All Canada is Talking About
It, The Washington Post, Nov. 23, 1993, at B1.

     [20].  Joseph Hall, Affluent Appearance Hid Face of a
Killer, Toronto Star, July 7, 1993, at A18.

     [21].  Tom Buckham, Karla Teale Sent to Prison for 12
Years in Slaying of 2 Ontario Teen-Age Girls, The Buffalo
News, July 7, 1993, at 1.

     [22].  Nick Pron & John Duncanson, Homolka Gets 12
Years, Toronto Star, July 7, 1993, at A1.

     [23].  Jim Rankin, Residents Angry at Lockout of
Public, Toronto Star, July 6, 1993, at A9.  "Like, how many
people charged with manslaughter get the kind of treatment
[Homolka] is getting?  She's not taken into court in a
regular manner; she's not brought in handcuffs.  The
community wants to know why," said one interviewee.  "I
think it's excellent.  We don't need to hear the details.  I
think everybody's aware of what's happened.  It's just a
matter of what's printed or not," said another.

     [24].  Tracey Tyler, Lawyers Divided over Sweeping
Publication Ban, Toronto Star, July 6, 1993, at A8.

     [25].  Antonia Zerbisias, Buffalo Media 'Perplexed' by
Ruling, Toronto Star, July 6, 1993, at A8.

     "We're a little shocked," said WIVB news director
     Kirk Varner, adding he was "perplexed at this
     belief that Americans can't be trusted."
                          . . . .
     "My impression is that the judge saw us as
     potentially being in the wrong because we could be
     there, listen to the testimony, drive across the
     border and report it freely," said Varner, who
     wasn't sure last night how WIVB would play the
     story from now on.  He did say the station had
     every intention of acting like "a good neighbor."
     But, he added, he's heard "speculation that some
     media organizations - not this one - might try to
     talk to people inside the courtroom and report it
     as 'sources in the court said blah-blah-blah.'"
                          . . . .
     WKBW's news director Steve VanVliet presented an
     affidavit to the judge yesterday morning promising
     to respect a publicity ban.  But later, VanVliet
     refused to tell reporters outside the court
     whether he would keep his word.  "Anything's a
     possibility," he said.

     Id.

     [26].  Id.

     The Globe and Mail will appeal the ruling, said William
Thorsell, editor-in-chief.  "We've taken the view over the
last several years that bans on coverage are not in the
interests of justice," he said last night.  Thorsell said in
the view of his newspaper, Canadians can have a fair-minded
approach to the trial despite the intense publicity that has
preceded it.  Toronto Star editor John Honderich said he was
not surprised by the ruling but said the paper won't appeal
the decision.  "The important principle was to make sure the
Canadian media was present for the entire trial.  That has
been achieved," he said.  The Star is going to be restricted
in what "we can say but the limitations will allow us to
outline the bare details," Honderich said.  "I would have
preferred open reporting but the important principle is we
will be there and can tell the full story at a later point."

     Id.

     [27].  Why The Star Will Appeal, Toronto Star, July 9,
1993, at A26.

     [28].  Antonia Zerbisias, No Spilling of Beans to
Barred U.S.  Media, Toronto Star, July 9, 1993, at A25.  In
fact, The Buffalo News provided relatively little coverage
of the story immediately following the Homolka trial.  A
July 11 story, Rumors Fly in Wake of Gag Order in Teale
Trial; Reports Claim Efforts to Circumvent News Ban, was
based largely on Canadian news reports, including the one
cited in this note.  The paper also carried stories on Paul
Bernardo's prison treatment (July 18) and the exhumation of
Karla's sister Tammy Homolka's body (July 21).  Tammy died
on Dec. 24, 1990, following a party at her parents' home; at
the time, a coroner found the death was accidental.  On May
10, 1994, Bernardo was formally charged with manslaughter
and aggravated sexual assault in connection with her death.
Nick Pron & John Duncanson, Bernardo Charged in Tammy's
Death, Toronto Star, May 11, 1993, at A1.

     [29].  John Duncanson & Nick Pron, Computer Links Break
Trial Ban, Toronto Star, July 31, 1993, at A1.  The term
"cyberspace" and the navigator metaphor are usually credited
to novelist William Gibson, whose now-classic Neuromancer
(1984) envisioned the evolution of internetworked
information transmission systems into something akin to a
parallel universe.

     [30].  John Duncanson & Nick Pron, Computer Links Break
Trial Ban, Toronto Star, July 31, 1993, at A1.

     [31].  A Usenet newsgroup is, in effect, a community of
Internet users who share an interest in a particular
subject.  Anyone can join the community and converse with
other interested users by posting and reading messages in
the form of text files.  Newsgroups are similar to
discussion groups and bulletin boards available on
commercial computer networks.  The Internet is an umbrella
network of local and regional networks worldwide linked
together via telecommunications and accessible to anyone
with a computer and modem.  Although it originated within
the U. S. government, principally the Department of Defense
and the National Science Foundation, the Internet has grown
far beyond those origins.  Most important, it is largely
self-regulated.  While any constituent network or point of
entry computer may establish its own rules, e.g., determine
what newsgroups may be carried, use of the Internet as a
whole is governed more by a community ethic than by detailed
regulations.  Because there are approximately 6,000
newsgroups on the Internet, each one is named hierarchically
for convenient browsing.  The first element in a newsgroup
name reflects the broadest interest category.  A newsgroup
beginning with "comp," for example, deals with computer
science and related matters.  A newsgroup that begins with
"alt" will carry discussions from an "alternative" point of
view.  There are many newsgroups that begin with "alt.fan,"
from "alt.fan.beatles" to "alt.fan.frank-zappa."  For
additional details, see, e.g., Ed Krol, The Whole Internet;
User's Guide & Catalog (1992); Howard Rheingold, The Virtual
Community (1993).

     [32].  The Paul Teale/Karla Homolka Frequently Asked
Questions List (FAQ), Version 4.0, Jan. 12, 1995
[hereinafter FAQ 4.0].  As its name implies, a newsgroup FAQ
is a list of commonly asked questions and their answers that
is regularly updated by group regulars for new readers.
Their purpose is to bring a new reader up to speed on the
issues that have already been discussed at length and
preserve the active dialog capacity for new contributions.

     This FAQ first appeared in September 1993 and contained
a brief history of the case and a dozen rumors.  It was
extensively revised and expanded on Dec. 17, 1993 (Version
2.0), and updated and reedited on Feb. 1, 1994 (Version
2.1), March 30, 1994, (Version 2.2), and June 10, 1994
(Version 3.0).  The principal editor of the FAQ from
December 1993 to March 1994 was known by the pseudonym "Lt.
Starbuck" (the name of a character in a science fiction
television series called "Battlestar Galactica").  The last
editor was "Abdul, the Electronic Gordon Domm."

     To preserve their anonymity, Lt.  Starbuck and others
who posted to alt.fan.karla-homolka used cutouts,
specifically a computer based in Finland (anon.penet.fi)
that stripped their postings of all identifying code before
retransmitting it to the newsgroup.  See Finish Television
.  Later, Abdul
communicated through another site, Illuminati Online, based
in Austin, Texas.

     While the information contained in the FAQ pertaining
to the murders and the Homolka trial is of questionable
reliability, there is little reason to doubt its description
of communication process.  As of July 1997, the FAQ and many
other documents cited in this article remained available on
the World Wide Web at
.

     [33].  The real Gordon Domm, a retired Ontario
Provincial Police officer, was arrested for violating the
publication ban.

     [34].  FAQ 4.0.

     [35].  Police Probe Stories About Homolka Trial,
Toronto Star, Aug. 11, 1993, at A4.

     [36].  David Israelson, U.K.  Newspaper Snubs Ban on
Homolka, Toronto Star, Sept. 20, 1993, at A2.

     [37].  Article on Karla to be Shredded, Toronto Star,
Sept. 23, 1993, at A5.  See also Tom Buckham, April 5
Hearing Date Set for Teale in Two Slayings, Buffalo News,
Sept. 29, 1993, at 16.

     [38].  Leslie Papp & Nick Pron, Homolka Trial TV Show
Draws Boyd's Objections, Toronto Star, Oct. 19, 1993, at A9.

     [39].  Transcript.  "A Current Affair" attributed those
details to an anonymous telephone caller.

     [40].  Nick Pron, Possible Breach of Homolka Ban
Probed, Toronto Star, Oct. 30, 1993, at A2.

     [41].  Mark Bellis, Former Officer Defies Order, Sends
Out Tape of TV Show, Toronto Star, Nov. 3, 1993, at A4.

     [42].  Mark Bellis, Trial Ban Fighter Arrested; Retired
Officer Battled Gag Order in Homolka Case, Toronto Star, at
A17.

     [43].  Province Investigating Attempt to Distribute
Homolka Article, Toronto Star, Nov. 23, 1993, at A11.

     [44].  CP, Library Defies Homolka Ban; Retired Guelph
Police Officer Keeps Up Fight, Toronto Star, Dec. 18, 1993,
at A24, and Homolka Trial, Ban, A Running Story, Toronto
Star, Dec. 26, 1993, at F5.

     [45].  Anne Swardson, Unspeakable Crimes, Wash.  Post,
Nov. 23, 1993, at B1.  This article, too, has been archived
in .

     [46].  Paper Ready To Run Homolka Trial Story, Toronto
Star, Nov. 25, 1993, at A32.

     [47].  U.S.  Papers to Run Story on Homolka, Toronto
Star, Nov. 27, 1993, at A13.

     [48].  Sunday's Paper Kept from Canadian Outlets,
Detroit Free Press, Nov. 29, 1993, at 5B; Peter Simon,
Canadians Flock to U.S. for Details of Slayings; Ontario
Officials Warn News to Respect Ban, Buffalo News, Nov. 29,
1993, at 1; and Nicholaas van Rijn, U.S.  Papers Seized Over
Homolka Ban, Toronto Star, Nov. 29, 1993, at A1.

     [49].  Theresa Boyle, U.S.  Paper Changes Homolka
Edition, Toronto Star, Nov. 28, 1993, at A5, and Peter
Simon, Canadians Flock to U.S. for Details of Slayings;
Ontario Officials Warn News to Respect Ban, Buffalo News,
Nov. 29, 1993, at 1.

     [50].  Peter Simon, Canadians Flock to U.S. for Details
of Slayings; Ontario Officials Warn News to Respect Ban,
Buffalo News, Nov. 29, 1993, at 1. The News carried this
description of one detention:

     Sheila MacDonald of Fort Erie, whose picture was
     in Sunday's News as her company's employee of the
     year, said authorities at the Peace Bridge
     confiscated three papers she and her sister, Lisa
     Pell, purchased in Buffalo.  She said she was
     unaware of the ban until then.  "We went over to
     buy the paper because we couldn't get any over
     here," she said.  "They put us in a room and a cop
     came in and arrested us.  He put his hand on my
     shoulder and told me to shut up, and then he put
     his hand on my sister's shoulder and read us our
     rights.  He took our names and our driver's
     licenses and took our papers.  He let us keep my
     picture and the TV Topics.  When he let us go, he
     said [the arrest] would show on the computer, but
     not as an indictable offense.  It won't show up
     when we cross the border, but it would if we got
     pulled over in Fort Erie."

     Id.

     [51].  See, e.g., Canada Bans U.S.  Papers Over Story,
Newsday, Nov. 29, 1993, at 19; U.S.  Newspapers Restricted
by Canada's Ban on Trial, Orlando Sentinel, Nov. 29, 1993,
at A6; Papers Not Sold in Canada, Sacramento Bee, Nov. 29,
1993, at A12; Canadian Ban Restricts U.S.  Papers, St.
Petersburg Times, Nov. 29, 1993, at 5A; Carol J. Castaneda,
Canadian Trial Spawns Black Market for News, USA Today
(except in Canada), Nov. 30, 1993, at 9A; Police Confiscate
Newspapers at the Border, Wash.  Post, Nov. 30, 1993, at C3;
Canadian Ban Order Sparks U.S.  Media Feeding Frenzy,
Phoenix Gazette, Dec. 1, 1993, at B1; Storer H. Rowley,
Angry Canada Blocking Unabridged U.S.  News, Chi.  Trib.,
Dec. 2, 1993, at 1; Court Muzzle Ends at Border, Clev.
Plain Dealer, Dec. 3, 1993, at 3C; Suzanne McGee, U.S.  News
Media Scramble to Comply with Order in Canadian Murder Case,
Wall St.  J., Dec. 3, 1993, at A5A.  The New York Times
covered the story on four consecutive days, from Nov. 30
through Dec. 2, when it reported that trucks carrying the
previous day's Times were turned back at the border near
Buffalo.  Six hundred copies bound for Ottawa were sent back
to the U.S., the Times said, although 1,100 were allowed to
enter near Montreal.  Copies of the national edition, which
did not contain the offending story, were flown to Toronto.
Officials Stop Trucks Loaded with The Times, N.Y.  Times,
Dec. 2, 1993, at B6.

     [52].  Russell Watson & Linda Kay, The Barbie-Ken
Murders, Newsweek, Dec. 6, 1993, at 36.  While excluded from
the Canadian edition of the magazine, it quickly became a
staple on the Internet and is among the documents archived
under .

     [53].  Tom Buckham, Publication Ban in Gruesome Murder
Case is a Bitter Pill for Canadian Journalists, Buffalo
News, Nov. 30, 1993, at 1.

     [54].  Id.  See also Charles Trueheart, Murder Story
Goes Over the Border, Wash.  Post, Dec. 3, 1993, at G4, and
Donovan Vincent, Cable Services Block U.S.  Items on Homolka
Case, Toronto Star, Nov. 30, 1993, at A8.  The Star reported
that Maclean-Hunter and Rogers Cablevision, two of Canada's
largest cable companies, were continuously monitoring border
stations and replacing anything related to the trial with a
message saying the program was unavailable due to the
publication ban.  Canadians could still receive the U.S.
broadcasts by antenna or satellite.

     [55].  Barry Brown, Blackouts of TV Spur Warning;
Action May Conflict with Canadian Rule, Buffalo News, Dec.
5, 1993, at 3. The News quoted Bill Allen, spokesman for the
Canadian Radio, Television and Telecommunications
Commission:  "Unless [the cable companies] have the
commission's prior authorization, cable companies cannot
alter or curtail signals they distribute."  Don Hinds, a
Maclean-Hunter vice president, said his firm would "sooner
obey the Ontario law and take our chances with the
commission."

     [56].  Nicholas Pron, Lid Blown Off Ban, Toronto Star,
Dec. 1, 1993, at A1.  "'Hear ye, hear ye,' screamed Darren
McKee, of WGRF.  'Let freedom ring out for all our brothers
and sisters to the north.'"

     [57].  William Walker, Star Probed in Homolka Court
Ban, Toronto Star, Dec. 1, 1993, at A1.

     [58].  Homolka Articles Left on Windshields, Dec. 23,
1993, at A10.

     [59].  Roger Watt (Nov. 30, 1993).  Karla Teale Trial
Court Order (article 10473 of uw.general) [Discussion],
[Online].  On file with author.

     [60].  Homolka Material Removed from Library,
Computers.  On file with author.  This article was posted
anonymously and retrieved Jan. 23, 1994.  The original
source is unknown, but was probably a Waterloo newspaper.

     [61].  Shawn W. Yerxa (Jan. 30, 1994).  Canadian
University Deleting Files.  [Discussion], [Online].  On file
with author.

     [62].  FAQ 4.0.

     [63].  See, e.g., Jim Wilkes, Paper Carrying Homolka
Details Pulled from Stands, Toronto Star, Dec. 3, 1993, at
A1 (trial details carried in the Independent of London) and
Stan Josey, 2 Israeli Papers Publish Details of Karla
Homolka, Toronto Star, Dec. 19, 1993, at A6 (trial details
carried in U.S. editions of Hebrew language Israeli
newspapers Maariv and Yediot Achronot sold in Canada).
Yediot Achronot later denied the story as to its coverage.
Israeli Newspaper Won't Defy Ban; Correction, Toronto Star,
Dec. 21, 1993.

     [64].  A Bad Gag Order in Canada, N.Y.  Times, Dec. 4,
1993, at 14.  "With due respect to Canada's sovereign power
and the judge's sincerity, his action is both futile and
wrong in principle."  Canada:  Crime and Censorship, Wash.
Post, Dec. 4, 1993, at A18.  "It's a bad idea to give judges
anywhere the power to pick and choose which facts can be the
subject of commentary and which cannot.  And when that edict
seeks to keep information from crossing a border between
people most of whom speak the same language and have access
to the same media, the policy is foolhardy as well."

     [65].  William Walker, Rae Slams 'Disrespectful' U.S.
Media, Toronto Star, Dec. 1, 1993, at A1.  "'I would hope
one would see a greater deal of respect from our [American]
neighbors for a decision that has been taken by a judge,'
[Ontario Premier Bob] Rae told reporters at Queen's Park.
'It has not been lightly taken.  It is not a political
decision.  This is not a decision of government, but of an
Ontario Court judge,' Rae said."

     [66].  Stephen Bindman, Poll Casts Doubt on Gag Order;
26% in Ontario Say They've Beaten Homolka Ban, Toronto Star,
Dec. 29, 1993, at A2.  An Angus Reid-Southam News telephone
poll of 1,510 Canadian adults conducted Dec. 15-20 found
that 33 percent of respondents disagreed with imposition of
the publication ban, while 28 percent supported the order.
The remaining 35 percent were unaware of the case.  Forty
percent said trial details had become public in spite of the
ban, while 21 percent thought the gag order had been
effective.  Thirty-four percent believed U.S. news media
were justified in carrying those details; 27 percent
disagreed.  The poll is considered accurate nationally
within 2.5 percentage points 19 times out of 20.  In Ontario
alone, 26 percent claimed to know banned details, prompting
Angus Reid pollster John Wright to suggest that a
"significant number" of Ontarians either actively sought or
at least received information that they deem to be in
violation.  Carleton University media law professor Klaus
Pohle said the results of the poll "seem to support those
who contended all along that the ban has not worked; that it
has, in fact, been counterproductive."  Id.

     [67].  William Walker, Homolka Ban is Working, Boyd
Claims 'I Don't Believe Everybody Knows' Trial Details,
Toronto Star, Nov. 30, 1993, at A8.  "'I don't believe
almost everybody knows - not at all.  There may be many
people who know.  Whether there is a general enough
knowledge to disrupt the court process or not, I do not
believe that is the case,' [Ontario Attorney General Marion]
Boyd told reporters."

     [68].  Nick Pron, Don't Hear Media Claim, Court Urged,
Toronto Star, Dec. 1, 1993, at A4.  A brief filed by the
Attorney General's ministry on Nov. 30 said the court had no
jurisdiction to hear the media appeals to quash the gag
order because civil applications cannot be brought in
criminal trials.  Moreover, the publication ban orders were
not "government orders," the 32-page brief stated, so the
Charter of Rights and Freedoms does not apply.

     [69].  Nick Pron, Bernardo Lawyers Join Appeal to End
Ban, Dec. 11, 1993, at A7.  On Dec. 10, the Ontario Court of
Appeal granted a motion filed by Paul Bernardo's defense
team filed to intervene in the media's challenge of the
publication ban.  Id.

     [70].  [1994] 3 S.C.R. 835, 120 D.L.R.4th 12, 94
C.C.C.3d 289.

     [71].  Thomson Newspapers Ltd. v. The Queen, 121
D.L.R.4th 42 (1994).  See also John Duncanson, Appeal of
Homolka Ban May Go Right to Top Court; Move by Media Outlets
Follows Recent Ruling, Toronto Star, Dec. 20, 1994, at A5.

     [72].  Top Court Won't Hear Challenge to Homolka Gag,
Montreal Gazette, May 5, 1995, at A8.

     [73].  Sarah Davison, Canada Lifts Veil of Silence on
Gruesome Murder, Reuters World Service, May 18, 1995.  The
trial judge, Justice Patrick LeSage, had previously barred
the media from publishing information about the impact of
the murders on the victims' families, but he rejected the
Crown's petition to prohibit journalists from reporting
anything that happened during pretrial phase of Bernardo
case until a jury was selected.  R. v. Bernardo, 1995 Ont.
C.J.  LEXIS 517.  See also Judge Rejects Total Gag in
Bernardo Case, Canadian Press, Feb. 11, 1995.  When the
trial began, Justice LeSage refused to allow the CBC to
televise it, and his order allowing the press and public to
hear, but not watch, Bernardo's gruesome videotapes was
allowed to stand by the Supreme Court of Canada.  Judge
Rejects CBC Bid for TV Hearing, Canadian Press, March 9,
1995; Stephen Bindman, Court Quashes Bid to Silence Videos,
The Edmonton Journal, June 16, 1995, at A11.

     [74].  Fred Langan, 25 Years for Rapist Who Murdered
Two Schoolgirls, Daily Telegraph, Sept. 2, 1995, at 10;
Canadian Sex Killer Jailed for Life, The Independent, Sept.
2, 1995, at 12.

     [75].  Canadian Murderer Gets Life in Prison, Reuters
World Service, Nov. 3, 1995.

     [76].  In his book, Nick Pron notes that, throughout
the ordeal, "the mainstream Canadian media outlets remained
silent.

     Many reporters believed what the courts were doing
     was wrong and some talked about defying the gag
     order and the wishes of their bosses.  But none
     did - at least, not in print.

     Word got out nonetheless.  One reporter held a
     press conference for everyone in the newsroom,
     although Justice Kovacs had warned journalists
     that they could discuss the information only with
     their immediate superiors.  Other journalists had
     told spouses, partners, relatives, friends, and
     parents.  One reporter recounted the banned
     information to his barber, who in turn passed it
     on to his customers.

Nick Pron, Lethal Marriage 403-04 New York: Ballantine
Books, 1995.

     [77].  See, for example, the discussion of art. 10 of
the Convention for the Protection of Human Rights and
Fundamental Freedoms (1953) in The Sunday Times v. United
Kingdom, 2 EHRR 245 (1979).  In that case, the newspaper was
enjoined from publishing an article regarding the testing,
manufacture, and marketing of the mutagenic drug thalidomide
while civil litigation was pending.  When the House of Lords
upheld the injunction, the newspaper filed an application
with the European Court of Human Rights claiming that the
injunction infringed on their right to freedom of expression
under art. 10.  Art. 10 allows for the restriction of
freedom of expression where the restriction is "prescribed
by law and ... necessary in a democratic society."  In
interpreting the word "necessary," the court found that,
while "not synonymous with 'indispensable', neither has it
the flexibility of such expressions as 'admissible',
'ordinary', 'useful', 'reasonable' or 'desirable', and that
it implied the existence of a 'pressing social need'."  The
similarity between art. 10, so explicated, and 1 of the
Canadian Charter of Rights and Freedoms, allowing reasonable
restrictions on free expression, where "prescribed by law"
and "demonstrably justified in a free and democratic
society," is striking.  Scholars have found it "unlikely"
that the two formulations are "appreciably different in
impact."  Maxwell Cohen & Anne F. Bayefsky, The Canadian
Charter of Rights and Freedoms and Public International Law,
61 Canadian Bar Rev.  -, 308 (1983).  And one human rights
practitioner insists that every international human rights
instrument, whether or not Canada has signed it, can be used
as an interpretive tool.  David Matas, Domestic
Implementation of International Human Rights Agreements,
Canadian Human Rights Yearbook (William Pentney & Daniel
Proulx, eds.  Toronto, The Carswell Co., Ltd. 1987).

     [78].  Frederick S. Seibert, Freedom of the Press in
England, 1476-1776 50 (1965).

     [79].  See, e.g., R.W.  Howe, Reveal the Name or Go To
Jail, Wash.  Journ.  Rev., Jan.-Feb. 1991, at 29; CNN
Accused of Criminal Contempt of Court, Wash.  Post, May 30,
1994.  But see Jailing of Reporter Barely Creates Ripple,
The News Media & The Law, Winter 1994, at 2.

     [80].  Significantly, the CNN program "Reliable
Sources" introduced a telecast on the publication ban
entitled "Gagging a Free Press" with the following
disclaimer:  "Because of the ban imposed on the media in
this case and since 'Reliable Sources' airs in Canada and
CNN is abiding by the judge's gag ruling, we won't be able
to discuss the details of the crime.  But despite these
restrictions, we've chosen to do our program on this topic
because we feel the general issues involved are important
and relevant to journalism."  Transcript #94, Dec. 12, 1994,
at 1.

     [81].  There is at least some question as to whether
maintaining or posting to an electronic bulletin board
constituted publication for purposes of the publication ban;
or whether the ban could be enforced against anyone who was
not in the courtroom during Homolka's trial or whose
information originated elsewhere.

     [82].  This idea was also manifest in the archiving of
copyright-protected print materials such as The Washington
Post and Newsweek articles.  The relationship between
intellectual property law and computer-mediated
communications has been (and continues to be) the subject of
numerous studies and lies far beyond the scope of this one.
For an early exposition, see Ithiel de Sola Pool,
Technologies of Freedom 214, Cambridge:  Harvard University
Press (1984).

[83].  Since the Americans separated from
       Britain by violent means, they were
       unwilling to allow many of the measures
       adopted in Great Britain to remain as
       law.  One of the early resolves was to
       maintain freedom of speech, religion and
       the press which were ultimately
       guaranteed through amendments to the
       Constitution.

         Since Canada did not separate from
     Great Britain by violent means, this
     desire to sever British traditions and
     laws was not present.  As a result,
     Canadian law evolved much in the same
     manner as did the later British law.
     The most sever repression of the press
     however, never existed here because by
     the time Canada was settled such
     repression had decreased in Britain.

     Clare F. Beckton, The Law and the Media in Canada 68
Toronto:  The Carswell Co., Ltd.  (1982).

     [84].  Stephen Klaidman and Tom L. Beauchamp, The
Virtuous Journalist 12 New York:  Oxford University Press
(1987).

     [85].  Society of Professional Journalists, Code of
Ethics (1987), reprinted in Jay Black et al., Doing Ethics
in Journalism 4-6, Greencastle, IN:  Sigma Delta Chi
Foundation (1993).

     [86].  Nick Pron, speaking on CNN's "Reliable Sources."
Transcript #94 (Dec. 12, 1993).

     [87].  Pron would later give the cybercasters one
grudging paragraph in his 400-plus-page book on the subject,
noting that they "tried to separate the truth from the
rumors, and often succeeded."  Nick Pron, Lethal Marriage
403 (1995).

     [88].  Jay Black et al., Doing Ethics in Journalism 43,
Greencastle, IN:  Sigma Delta Chi Foundation (1993).

     [89].  Stephen Klaidman and Tom L. Beauchamp, The
Virtuous Journalist 50 (1987).  They go on to say, however,
that, "If doubt remains about the accuracy of a purported
fact, the doubt should be incorporated into the story."

     [90].  Premature reporting of false evidence in the
contemporaneous O.J.  Simpson murder case was also the
subject of considerable media criticism and self-scrutiny.
See, e.g., M.L. Stein, Can O.J.  Get a Fair Trial?, Editor &
Publisher, July 9, 1994, at 9; Viewpoint:  O.J. and the
Media, ABC News Nightline, July 22, 1994.

     [91].  Each set of rumors was attributed to the person
who contributed them (e.g., "The following statements were
made by Lt.  Starbuck.") and many contained further sourcing
(e.g., "Rumours heard via the Kitchener-Waterloo fire
department...," "My sources in the pathologist's office,
corroborated by a nurse at one of the larger Southern
Ontario hospitals...," "This info comes from a friend who
'talked to a cop in the investigation.'  Hearsay, I guess,
so take it for what it's worth.")  FAQ 4.0.

     [92].  Howard Rheingold, The Virtual Community 130
Reading, MA:  Addison Wesley (1993).  "In television,
newspapers, magazines, films, and radio, a small number of
people have the power to determine which information should
be made available to the mass audience.  In Usenet, every
member of the audience is also a potential publisher."  Id.

     [93].  "Though all the winds of doctrine were let loose
to play upon the earth, so truth be in the field, we do
injuriously by licensing and prohibiting to misdoubt her
strength.  Let her and falsehood grapple; who ever knew
truth put to the worse, in a free and open encounter."  John
Milton, Areopagitica (1644).

     [94].  "[Libertarian philosophy] placed great faith in
the ability of the people to make rational, intelligent
decisions, to find truth if sufficient information were
available through a free press in a free society that
protected free expression....  The sense of freedom extended
even to freedom from any responsibility to the public...."
Conrad C. Fink, Media Ethics 8-9 (1988).

     [95].  Society of Professional Journalists, Code of
Ethics (1987), reprinted in Jay Black et al., Doing Ethics
in Journalism 4-6 (1993).

     [96].  See FAQ 4.0.

     [97].  Nick Pron, Fatal Marriage (1995).

     [98].  Society of Professional Journalists, Code of
Ethics (1987), reprinted in Jay Black et al., Doing Ethics
in Journalism 4-6 (1993).

     [99].  Cato was the pseudonym of John Trenchard and
Thomas Gordon, who wrote 138 letters on freedom of speech
and other liberties that were published in the London
Journal between 1720 and 1723.  The letters were collected
and published in four volumes that had a substantial
influence on American libertarian thinking.  Alexander was
the New York attorney whose scathing - and anonymous -
indictments of the royal governor landed his printer, John
Peter Zenger, in jail.  Zenger's acquittal for Alexander's
seditious libel by jury nullification is legendary in
American journalism.  Michael Emery and Edwin Emery, The
Press and America 14-15, 38-44 (1988).

     [100].  See note 62 and accompanying text.

     [101].  Society of Professional Journalists, Code of
Ethics (1987), reprinted in Jay Black et al., Doing Ethics
in Journalism 4-6 (1993).

     [102].  Howard Rheingold, The Virtual Community 74
(1993).  As early as the 1950s, RAND Corp. analysts
recognized that the conventional communications
infrastructure would be a vulnerable target in a nuclear
war.  RAND's Paul Baran proposed eliminating any command
center for communications and replacing it with
decentralized nodes that were each capable of communicating
with all of the others.  Messages would be chopped into
small packets of data that would travel through the network
by the most expeditious routes.  Packets would be routed
around any nodes that were destroyed and reassembled at the
destination node.  Baran's idea was adapted for ARPANET, the
precursor of today's Internet.  Id.

     [103].  Conrad C. Fink, Media Ethics xx-xxiii (1988).

     [104].  McVeigh Took Responsibility for Bombing,
Reports Say, The Dallas Morning News, Feb. 28,
1997.  See also Pete
Slover, McVeigh Admitted Bombing, Memos Say; His Attorney
Disputes Documents' Credibility, The Dallas Morning News,
March 1, 1997, at 1A.

     [105].  See, e.g., The McVeigh Dilemma, Quill, April
1997, at 17.

     [106].  Editors may have been thinking back to the 1995
injunction that kept Business Week from publishing a major
scoop for three weeks.  Keith H. Hammonds and Catherine
Yang, Business Week vs.  The Judge, Bus.  Wk., Oct. 16,
1995, at 114.

     [107].  The McVeigh Dilemma, Quill, April 1997, at 17.

     [108].  See Se Levant Prohibicion de Informar, La
Tercera (online), June 27,
1997.

     [109].  Chile Paper Skirts Gag Rule on Web, Chi.
Trib., June 22, 1997, at 1-7.

     [110].  Howard Kurtz, Media Notes, Wash.  Post, June
30, 1997, at C-1.

     [111].  Id.

     [112].  Chile Paper Skirts Gag Rule on Web, Chi.
Trib., June 22, 1997, at 1-7.

     [113].  Howard Kurtz, Media Notes, Wash.  Post, June
30, 1997, at C-1.
***********************************************************

Author Information:  Eric B. Easton
                     University of Baltimore School of Law
                     1420 North Charles Street
                     Baltimore, Maryland 21201
                     eeaston@ubmail.ubalt.edu

                     (410) 837-4874 (phone)
                     (410) 837-4560 (fax)

     This article is updated from a paper presented at the
Association for Education in Journalism & Mass Communication
Annual Convention, Atlanta, August 1994.  It is part of a
more comprehensive work that will be published in 1997 in
the _Seattle University Law Review_.  Another paper based on
the larger work was presented at Communication and Culture:
China and the World Entering the 21st Century, Beijing,
August 1996, published in Chinese in _Journalism &
Communication_, the quarterly journal of the Institute of
Journalism of the Chinese Academy of Social Sciences.
************************************************************
                       Copyright 1997
  Communication Institute for Online Scholarship, Inc.

     This file may not be publicly distributed or reproduced
without written permission of the Communication Institute
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12150 USA (phone:  518-887-2443).