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Let's say an online service makes an unpopular business decision, and people are coming up with ways to protest the change. If I tell someone to download LOIC (a network stress testing tool that is often used in denial-of-service attacks) and DDoS (distributed denial-of-service) the company's website, and someone actually does, then I would likely end up in hot water because DDOS attacks are very illegal.

But suppose I said something like this instead: "Protest however you want to. Just don't download LOIC and DDoS the company's website, because that's illegal. Which is unfortunate because a DDoS would send a very strong message."

And let's say someone or some people decide to participate in a DDoS attack because they saw my message. Would I still get in trouble in this scenario?

I do know some businesses sold "grapes bricks" during Prohibition and provided information on how not to make wine. To my knowledge, no one was ever convicted for doing this. However, that was a hundred years ago, so it wouldn't surprise me if relevant laws have changed since then.

Danny
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In Canada, "incitement" refers to a particular hate-related offence. I think you're referring to what in Canada is called "counselling" of an offence, criminalized at s. 22 of the Criminal Code.

Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence...

Even if the offence is not ultimately committed, so there is no offence to become a party to, the counselling itself is an independent, standalone offence, created at s. 464 of the Criminal Code:

every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable

To prove someone guilty through counselling, the Crown must prove:

  • that the statement alleged to be "counselling" actually would persuade or induce the commission of the offence
  • that the accused intended the statement to have that effect, or knew of the risk that it would bring about the commission of the offence.

Without many more facts, we cannot know whether the circumstances you describe would constitute counselling.

Jen
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