Brent Bambury: The legality of blood and gore websites

If you follow exclusively mainstream media, the shocking story of a gruesome killing in Montreal began this week with the delivery of a severed limb to the headquarters of a political party.

But consumers of a different kind of media may have witnessed the horror days earlier, on a Canadian website called Best Gore.

On May 25, four days before a severed foot arrived by Canada Post at Conservative Party headquarters in Ottawa, a video was posted on Best Gore that may be an actual depiction of a killing. It goes beyond that. If the video is realand police say it isits a catalogue of degradation: killing, dismemberment and perversions.

The discussion among members of the online community who frequent sites like Best Gore was widespread: Was the killing real? Dozens more commented simply on how they felt, or didnt feel, about the mayhem theyd just seen. Said one: "Completely desensitized to this type of videos and stuff."

That a fringe online community witnessed and commentedsome callouslyon an actual killing is unsettling enough. But astonishingly, some commentators on the site identified the perpetrator in the video as the man police now name as the suspect, Luka Rocco Magnotta.

The Edmonton-based operator of Best Gore says its proof his clients are not sick voyeurs.

Mark Marek places their actions and the role of his website firmly within the public good.

"Members of Best Gore identified the perpetrator four days before the discovery of the torso in Montreal and the foot in Ottawa," Marek toldCBC's Day 6via email.

"Had the police not ignored the reports made at the time, they would have likely caught the perpetrator red-handed, while still in the apartment."

But it's clear Marek is speaking for a minority. Among those calling for the abolition of sites like Best Gore this week was Canada's minister of public safety.

"There are laws on the books against that kind of website," Vic Toews said, "and I expect police would look into those things and take the appropriate action."

I asked David Fraser, aprivacy, internet and media lawyerwithMcInnes Cooperin Halifax, what that action might be.

"We have Criminal Code provisions dealing with obscenity and it deals with the combination of horrific violence, degradation, dehumanization with a sexual component," Fraser says.

But then theres the matter of the Charter of Rights and Freedoms. Would pressing charges pass Charter scrutiny?

"Everybody has the right of freedom of expression, not just the conventional media." Fraser says. "Everybody. And there is also a 'public good' defence thats built into the Criminal Code."

Marek told Day 6 Best Gore is a "reality news website" and he reports on real-life events.

His site publishes a mission statement that argues: "Through uncensored reporting, people can learn the truth about criminals who could be operating out of their neighbourhoods, about how safe or dangerous countries your teenager is about to visit really are, or about what human beings are truly capable of doing to one another."

All of this makes the public good argument a possible defence.

I asked Fraser if people viewing the video of a suspected killing have a legal obligation to report it. They dont, he said. Bystanders have no obligation under Canadian law, and the person who posted the video likewise has no special legal burden to report the contents to police.

But that person may be accountable on another front: he could be compelled to reveal the source of the video, the person who gave it to him, which Marek has said he won't do.

"The video, from all appearances, is a document of a horrific crime in progress," Fraser says. "The video itself would be evidence of a crime. Police would be able to go to court to get a legal process that would compel the operator of the website to hand over that information."

And then there's the victim, identified Friday as a 33-year-old student from China named Jun Lin.

Contrast this widely searched internet video with the closely guarded evidence the Crown held in the Paul Bernardo trial in recognition of the rights of his murder victims and their families.

What are Jun Lin's rights in this terrible story as the victim of a crime now viewed by hundreds of thousands of people?

It seems they are limited.

"It's an uphill battle to get an order to prevent the publication of this video," says Fraser. "Its already out there."

So does the content of this one depraved video and the ease with which it was viewed call for more legislation to make it easier to shut down sites like Best Gore and its many competitors?

"Trying to draft a piece of law that would focus on this particular video would be difficult," says Fraser, "without significant collateral damage.

"If you look at some of the news reporting and journalism that comes out of places like Iraq, youre looking at journalistic depictions of pretty gory stuff. Theres a compelling journalistic public interest purpose in letting people know the violent stuff that goes on in society. You need to be very careful about how this is balanced."

Police have said theyve tried to shut down Marek's website, but as of Friday, though slowed by heavier traffic, it remained online and active.