Perceptual Differences in Approaches to Censorship: Information Intermediaries and the Implementation of Law

Abstract

Censorship exists wherever there is preselection of information made available to a particular group of potential users-that is, wherever there is an information intermediary between the information source and the user. Therefore, one cannot ask whether or not there should be censorship. Nor is it realistic to declare that freedom of expression should override censorship. A more useful approach is to ask what checks and balances should be in place to ensure freedom of expression and other basic information rights in the face of the necessity and reality of the information selection process. Two forms of legal intervention have been used to create our current regime. This article first examines delegation of the censoring/selecting power to particular intermediaries in the information cycle. Historically, power to select appropriate information for dissemination was delegated to the ''censors,'' and examples of this approach continue in our law in such areas as access and copyright legislation and in unlegislated areas of the law such as confidential information. Second, the paper examines situations where the law regulates the censoring activity itself. In situations such as libel and obscenity, for example, our law preempts the intermediary by dictating the decision itself. The law, however, does not necessarily mirror actual decisions being made by information intermediaries. Empirical evidence suggests that selection/censorship decisions, which the current law might have been expected to affect, may be being made by other intermediaries and on other criteria than theoretical examination of the law would lead one to expect. These ''extralegal'' forms of censorship can be very effective, but are we content to leave those decisions without legal control? The article concludes that more strategic empirical analysis of our current legal attempts to create effective checks and balances on the censoring decisions made by intermediaries will assist us in further law reform attempts.