18 Jul 2013 | Americas, Canada, Politics and Society
This year has seen significant developments in Canada’s hate speech legislation, say attorneys Ryder Gilliland and Adam Lazier.
(Wikipedia)
Bill Whatcott is a conservative Christian campaigner who was fined $17,500 dollars in 2005 for distributing hate materials. His case rumbled through the courts until February, when the Supreme Court ruled against him.
In June, however, Parliament voted to repeal a hate speech provision in the federal human rights legislation. This is a significant legislative change, but whether provincial legislatures and courts will follow suit is very much an open question.
The regulation of hate speech in Canada
Hate speech in Canada is regulated in two ways. Section 319 of the Criminal Code makes it an offence to wilfully promote or publicly incite hatred. A violation of Section 319 carries serious consequences, including imprisonment for up to two years. Someone charged criminally under Section 319 has a number of defences available, including “truth”, and that the statements were in the public interest and the accused reasonably believed them to be true.
Hate speech is also prohibited by human rights legislation at both the federal and provincial levels. Human rights legislation carries less serious consequences than the criminal law provisions, but a respondent to a human rights claim has far fewer defences available. Human rights complaints are decided by administrative tribunals rather than courts.
Both types of hate speech legislation have been challenged in court as violations of Canada’s constitutional protection for freedom of expression. These challenges have not met with much success. Although the Supreme Court struck down an antiquated “false news” law used to prosecute holocaust denier Ernst Zundel (R. v. Zundel, [1992] 2 S.C.R. 731), it has upheld the constitutionality of the criminal offence of wilfully promoting hatred (R. v. Keegstra, [1990] 3 S.C.R. 697).
In Whatcott, the Supreme Court largely upheld a hate-speech prohibition in Saskatchewan’s human rights legislation, despite that the provision does not even allow a defence of truth (2013 SCC 11).
The repeal of section 13 of the Canadian Human Rights Act
Just four months after the Whatcott decision parliament voted to repeal section 13 of the Canadian Human Rights Act (the “CHRA”), the federal equivalent to the Saskatchewan law at issue in Whatcott. The repeal comes into effect after one year.
Section 13, which was upheld by the Supreme Court of Canada in 1990, prohibits anyone from repeatedly communicating hate speech over the telephone or internet. The Tribunal can punish contraventions by ordering that the speaker financially compensate the victim. (A provision allowing the Tribunal to also order a $10,000 “penalty” as well was struck down by a 2012 Federal Court decision).
Human Rights Laws: A blunt instrument for regulating speech
Canada’s criminal hate speech laws arguably have a minimal impact on freedom of expression rights, as there is a high burden of proof and there are numerous defences available, including the defence of “truth”. It seems unlikely that mainstream media will be prosecuted, much less prosecuted successfully, under Section 319 of the Criminal Code.
Human rights hate speech laws are different. There are far fewer protections for respondents in human rights cases and the mainstream media has recently had to defend against human rights complaints. Thus, they appear to be a potentially dangerous incursion into free speech territory.
Hate speech laws in human rights legislation rest on a tenuous and sometimes artificial distinction between hate speech and other speech. In the context of libel law, for instance, a speaker has a constitutional right to defences for truth, fair comment, and responsible communication in the public interest. Once statements are classified as “hate speech” in the context of a human rights complaint, however, they lose that protection – a human rights tribunal may order compensation even if the statement is true, and even if it was made in good faith on a matter of public interest.
The line between hate speech and the merely offensive is slippery at best. Whatcott and earlier Supreme Court decisions define hate speech as statements that tend to expose people to “unusually strong and deep-felt emotions of detestation and vilification” on the basis of a prohibited ground of discrimination, which includes things like race, religion, and sexual orientation. However, human rights legislation doesn’t require that anyone prove the statements at issue actually caused hatred. This leaves tribunals and courts guessing about whether the statements at issue could have that effect, or whether they are just “offensive comments or expressions of dislike”.
This combination of strict laws with a slippery definition of hate speech puts everyone’s expression at risk, not just that of extremists. In a recent British Columbia case, the Human Rights Tribunal found that a stand-up comic had engaged in “discriminatory” speech by insulting audience members based on their sexual orientation. The decision was recently upheld by on judicial review (Ismail v. British Columbia (Human Rights Tribunal), 2013 BCSC 1079).
Media organisations have successfully defended against hate speech complaints brought before human rights tribunals, but have incurred significant legal expenses along the way. The imprecise definition of hate speech makes it difficult for the media to assess its risk before publication, and therefore risks chilling debate.
More broadly, freedom of expression relies on courts and legislatures accepting the importance of the “marketplace of ideas”; the notion that society is best served when ideas, even hateful ideas, are disproven through public debate. The “marketplace of ideas” concept formed part of the reasoning behind the Supreme Court’s decision to recognize the responsible communication defence in libel law in 2009 (Grant v. Torstar Corp, 2009 SCC 61). “In the course of debate,” the Court wrote then, “misconceptions and errors are exposed. What withstands testing emerges as truth”.
Hate speech laws in the human rights context, and court decisions that uphold them, are inconsistent with concept of a marketplace of ideas. They threaten free speech. It is encouraging to see parliament repealing section 13 of the CHRA. The question now is who will follow.
Ryder Gilliland is a Toronto-based attorney at Blake, Cassels & Graydon LLP and an executive member of Ad IDEM, the Canadian Media Lawyers Association.
Adam Lazier is an attorney with Blake, Cassels & Graydon LLP.
18 Jul 2013 | In the News
INDEX EVENTS
18 July New World (Dis)Order: What do Turkey, Russia and Brazil tell us about freedom and rights?
Index, in partnership with the European Council on Foreign Relations, is holding a timely debate on the shifting world order and its impact on rights and freedoms. The event will also launch the latest issue of Index on Censorship magazine, including a special report on the multipolar world.
(More information)
19 July: What surveillance means to YOU
Join us 19 July for a live Google hangout with Index on Censorship as Trevor Timm of the Electronic Frontier Foundation and Rebecca Mckinnon of Gloval Voices discuss what mass surveillance means to all of us as individuals. Hosted by Padraig Reidy of Index, the hour-long event will delve in the issues around government surveillance of innocent civilians.
(More information)
ASIA
Internet Censorship is Taking Root in Southeast Asia
Every time Le Anh Hung starts to write he thinks of his three young children. The 38-year-old has already been imprisoned twice for blogging about human rights and corruption from his home in Hanoi and lives half-expecting another fateful knock at the door. And yet “I’m not scared,” he says, “I know what I choose to do is risky but I accept the fight.”
(Time)
BRAZIL
Brazil protesters hope for Pope’s backing during visit
Young Brazilians who marched in June to demand more funding for health and education are hoping Pope Francis will back their cause when he visits Rio next week. But organizers ruled out a resumption of the street protests during the pontiff’s week-long stay to attend World Youth Day (WYD), a major Catholic gathering expected to draw 1.5 million people.
(AFP)
CHINA
China says it’ll relax film, TV censorship; directors unimpressed
Chinese authorities said Wednesday they would relax some restrictions on film, TV and radio productions, though the immediate impact of the changes was unclear and several prominent movie directors said they did not believe the reforms were game-changers.
(Los Angeles Times)
ISRAEL
Israel’s Plague of Self-Censorship
The affair surrounding Edward Snowden, former employee of the United States National Security Agency (NSA) who leaked information about NSA surveillance programs, reminded me of a personal story from more than 30 years ago.
(The Times)
LIBERIA
Newspaper Slapped With U.S $1.5 Million Libel Ruling
Liberia’s Supreme Court has ruled that a $1.5 million verdict against the FrontPage Africa newspaper should be enforced.
(All Africa)
UNITED KINGDOM
An unpleasant odour is rising from Northern Ireland’s libel law
The recently passed Defamation Act 2013 will introduce much-needed reform of an area of the law that has become an anachronistic, obscure and unjustifiable fetter on freedom of speech. It comes into force later this year. But not in Northern Ireland. The reluctance of Northern Ireland politicians to adopt the 2013 Act will, as a libel lawyer would say, lower them in the estimation of right-thinking people.
(The Times)
UNITED STATES
Federal Campus Sexual Harassment Policy Draws Free Speech Concerns
The federal government is facing pressure from civil-liberties advocates to back down from a policy meant to curb sexual harassment at colleges and universities — just as sexual-assault survivors demanded in a protest this week that the Education Department do more to punish colleges that fail to address campus assaults.
(Huffington Post)
Student Who Disagrees With Homosexuality Wins Free Speech Lawsuit Against Teacher
A federal district judge ruled in favor of a Michigan student who was removed from the classroom by his teacher for expressing his religious beliefs against homosexuality. The judge said punishing the student for his freedom of expression violated his First Amendment rights.
(Christian Post)
The Attack on Free Speech and the Press
Over the past three years, we have seen an assault on free speech and freedom of the press by those in power. Campaign finance laws have always been used less as a restriction on money in politics and more as a restriction of freedom of speech.
(Texas GOP Vote)
Previous Free Expression in the News posts
July 17 | July 16 | July 15 | July 12 | July 11 | July 10 | July 9 | July 8 | July 5 | July 4
17 Jul 2013 | In the News
INDEX EVENTS
18 July New World (Dis)Order: What do Turkey, Russia and Brazil tell us about freedom and rights?
Index, in partnership with the European Council on Foreign Relations, is holding a timely debate on the shifting world order and its impact on rights and freedoms. The event will also launch the latest issue of Index on Censorship magazine, including a special report on the multipolar world.
(More information)
19 July: What surveillance means to YOU
Join us 19 July for a live Google hangout with Index on Censorship as Trevor Timm of the Electronic Frontier Foundation and Rebecca Mckinnon of Gloval Voices discuss what mass surveillance means to all of us as individuals. Hosted by Padraig Reidy of Index, the hour-long event will delve in the issues around government surveillance of innocent civilians.
(More information)
BURKINA FASO
Burkina Faso state media journalists protest censorship
In Burkina Faso, tens of journalists from state media today held a sit-in in front of the Ministry of Communications in the capital Ouagadougou to protest what they deem to be excessive government censorship of news coverage.
(CPJ Blog)
CHINA
Censorship in China is Deeper and More Insidious Than You Think
Despite a free-wheeling micro-blogging scene, traditional media sources still operate under heavy government constraints.
(The Atlantic)
JAPAN
Former premier sues Shinzo Abe for libel over Fukushima disaster
Prime minister says Kan’s instructions to dampen nuclear emergency were ‘made up’
(South China Morning Post)
LIBYA
Libya moves a step closer to new post-Gaddafi constitution
Libya’s national assembly passed a law on Tuesday providing for the election of a committee to draft a new constitution following the overthrow of dictator Muammar Gaddafi in 2011.
(Reuters)
RUSSIA
Russian senator officially demands ‘measures’ against ‘flagrant’, ‘privacy-breaching’ Google
A high-profile Russian lawmaker has lodged an official request with the general prosecutor to investigate Google’s activities in Russia, saying the web services company’s privacy policy “gravely violates the Russian constitution.”
(RT)
SRI LANKA
Sri Lankan film ban halts French festival, sparks anger
The Sri Lankan government’s decision to ban the acclaimed film, “Flying Fish” and halt the French film festival, where it was screened has sparked outrage in a country that’s no stranger to threats to free speech.
(France 24)
TURKEY
Turkey regulator to appoint two board members to Turkcell
Turkey’s Capital Markets Board will appoint two board members to Turkcell Iletisim Hizmetleri AS soon, Chairman Vahdettin Ertas told Turkish TV channel CNBCe Tuesday, after a series of failed annual shareholder meetings amid the long-running dispute over control of Turkcell.
(Total Telecom)
UNITED STATES
Emails show ex-Gov. Daniels sought to quash political opposition in Ind. schools
Former Indiana Gov. Mitch Daniels pledged to promote academic freedom, not stifle it, when he became president at Purdue University in January.
(AP via Daily Reporter)
Advice column is free speech; Ky. psychology board overreaches
What do the Westboro Baptist Church, Larry Flynt and John Rosemond have in common? All have turned to federal courts to protect their First Amendment rights. Westboro and Flynt prevailed at the Supreme Court which ruled that, no matter how noxious or crude, protests at military funerals and Hustler satire are constitutionally protected forms of expression.
(Lexington Herald-Leader)
Terror Supporter May Have Free Speech Case
A man convicted of aiding al-Qaida can pursue claims that Uncle Sam has cut off his speech in prison, but he’ll face a heavy burden of proof, a federal judge ruled.
(Courthouse News)
‘Veterans’ Free Speech Trial Ends in Guilty Verdict, Followed by Dismissal of Charges
Judge Robert Mandelbaum covered all his bases with his verdict July 12 in the case of 12veterans and their allies arrested last Oct. 7 at New York City’s Vietnam Veterans Memorial Plaza.
(The Indypendent)
‘US citizen has no right to free speech?’ State Dept spokesperson
During a daily press briefing State Department spokeswoman, Jen Psaki was given a thorough grilling on the Snowden affair by journalists, including AP’s Matthew Lee and CNN’s Elise Labott and was left lost for words at almost every turn.
(RT)
Previous Free Expression in the News posts
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