The International Business Services (iBLS) did an excellent summary this week on Online Hate and the Law.
They explain how freedom of expression, though necessary to health democracies, do have some limits, as detailed below.
Thanks to Gary Wise of the Wise Law Blog for the heads up.
Freedom of expression is central to a healthy democracy. Accordingly, although racist and hateful comments are offensive to the vast majority of Canadians, they are not necessarily illegal.
The following section surveys the federal laws that prohibit some forms of hate speech.
Sections 318 and 319 of the Criminal Code make it a criminal offence to:
- advocate genocide
- publicly incite hatred
- wilfully promote hatred against an “identifiable group.”
An identifiable group is defined as any section of the public distinguished by:
colour
race
religion
ethnic origin
Hatred directed against others groups (such as women, or gays and lesbians) is not punishable under sections 318 and 319.
The Criminal Code provisions are intended to prohibit the public distribution of hate propaganda. Private speech is not covered by the provisions.
For example, “advocating genocide” includes publicly arguing that members of an identifiable group should be killed. Wilfully promoting hatred can only be committed by communicating statements other than in a private conversation. And inciting hatred is only prohibited if statements are communicated in a public place.
Online communications that advocate genocide or wilfully promote or incite hatred are likely to fall within the provisions because the Internet is a public network.
Under section 320.1 of the Criminal Code, a judge has the authority to order the removal of hate propaganda from a computer system that is available to the public. Such authority extends to all computer systems located within Canada.
Canadian Charter of Rights and Freedoms
Section 2 of the Canadian Charter of Rights and Freedoms guarantees freedom of thought, belief, opinion and expression to all Canadians. However, all Charter rights are subject to reasonable limits that can be demonstrably justified in a free and democratic society.
In 1990, the Supreme Court of Canada considered whether or not section 319(2) of the Criminal Code (the crime of wilfully promoting hatred) violates our constitutional right to freedom of expression, in the Keegstra case. James Keegstra was an Alberta high-school teacher who taught his students that the Holocaust did not occur and was part of a Jewish conspiracy. The Court held that, although section 319(2) does limit free speech, it is a reasonable limit consistent with a democratic society, and is therefore constitutional.
Section 13 of the Canadian Human Rights Act prohibits the communication by means of a telecommunication undertaking (including the Internet) of messages that are likely to expose a person to hatred or contempt on the basis of:
race
national or ethnic origin
colour
religion
age
sex
sexual orientation
marital status
family status
disability
conviction for which a pardon has been granted
In January 2002, the Canadian Human Rights Tribunal ordered Ernst Zundel to cease and desist from publishing hate messages on the Zundelsite because his writings violate section 13. However, the Zundelsite continues to post hateful messages because it is located in the United States and is, therefore, outside the jurisdiction of the Canadian tribunal.Regulations under the Broadcasting Act prohibit any licensee from broadcasting or distributing programming that contains abusive comments about individuals or groups – comments that would expose an individual, group, or class of individuals to hatred or contempt on discriminatory grounds.
These regulations apply to radio, specialty services, broadcast television and pay television. However, as it now stands, Internet-based communications do not readily fit the definition of “broadcasting.”
Under the Immigration Act, customs officials have the authority to stop hate material from entering Canada, and to refuse entry to individual hate-mongers.
