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Consequences of public speech real
Kashif Ahmed, Special to the StarPhoenix
Friday, November 14, 2008
The recent decision by the British Columbia Human Rights Tribunal to dismiss a complaint against Maclean’s magazine brings to light the issue of free speech striking at the core of Canadian social cohesion and political debate.
From a strict legal perspective, the tribunal was correct, as was the Ontario Human Rights Commission, to toss out the case against Maclean’s brought by a Muslim group over an article written by Mark Steyn. Yet, the B.C. tribunal was not alone in its recognition that Steyn’s piece was riddled with an anti-Muslim message.
The Ontario commission stated that, while freedom of expression was paramount, it was concerned about “the content of a number of articles concerning Muslims that have been published by Maclean’s magazine and other media outlets. This type of media coverage has been identified as contributing to Islamophobia and promoting societal intolerance towards Muslim, Arab and South Asian Canadians.”
Although the commission did not have jurisdiction over the complaint, and even if we question its suitability to make public commentary, it still raised an important point. It was not simply one article written by Steyn. Rather, it was a series of pieces in Maclean’s that appeared to promote one single theme: Muslims are a dangerous group of aliens in western and Canadian society who cannot coexist peacefully with their fellow citizens.
It’s not the B.C. tribunal that wrongly questioned the professionalism and judgment of Maclean’s, as a recent Calgary Herald editorial suggested. Rather, the decision to publish those articles without including a legitimate discourse that entertained the views of Canadian Muslims is why the record of the national magazine is tarnished.
It is also of concern that Maclean’s chose to publish Steyn, who is unapologetic about his history of using xenophobic epithets such as “gooks,” “Chinks,” and “Japs.” (For the record, Steyn was not a respondent in the human rights complaint).
And yet some important questions are not being asked. What useful social function in Canada is served by repeatedly demonizing a minority community and making wild claims about it in the name of free speech? Does it strengthen the social fabric of Canada and bring communities together? The only result, in this case, is to increase public misunderstanding and misinformation.
The recent United States presidential race was a further example of what can occur when bigotry is not challenged. Since 9/11, years of Islamophobic rhetoric adopted by certain extreme American political elements led to “Muslim” or “Arab” becoming smear terms in the campaign. So much so, that in a response to a supporter’s false claim about now president-elect Barack Obama, Republican contender John McCain denied that Obama was an Arab or Muslim, and then said the Democrat was a “decent family man,” as if Muslims or Arabs could not possibly be decent family men.
American Muslims watched with shock as their identity was denigrated and reduced to a political slur. The smearing was finally challenged when Republican and former secretary of state Colin Powell denounced the campaign’s bigotry on NBC’s Meet The Press.
Is this a road that we, as a Canadian collective, want to go down as well? There are real consequences that result from free speech that is divisive and vitriolic, yet is not deemed by law to be hateful. Hence the apparent pontificating from the B.C. and Ontario human rights bodies on the Maclean’s case. There certainly is not an epidemic of Islamophobia in Canada, but the Muslim community and its representatives remain concerned.
Perhaps the human rights commissions should not be in the business of determining what constitutes hate speech. Many people think taxpayers’ money and human rights bodies that were created to deal largely with employment discrimination should not be used to adjudicate issues already covered by the Criminal Code — as demonstrated by the criminal trial of David Ahenakew over his alleged promotion of hatred against Jews.
Undoubtedly, freedom of expression must be closely guarded in Canada. Our treasured Charter of Rights and Freedoms and we, the Canadian public, demand no less. Yet, the debate should not overshadow the crux of the matter at hand: Our social cohesion and relations are severely undermined when us-versus-them attitudes and messages creep into the mainstream and try to divide us along ethnic and religious lines.
Indeed, our shared Canadian successes depend on our mutual willingness to reject such attempts at discord and division in the 21st century and our desire to rise above the sordid political game of suspicion.
A New Media Defence
Canadian journalists may just breathe a little easier now. A November 2007 major ruling of the Ontario Court of Appeal broke new ground in the area of defamation law when it comes to the news media in Canada.
In essence, the Ontario court decision in Cusson v. Ottawa Citizen gives the media another line of defence when it comes to defamation lawsuits and provides more freedom for the media to publish stories that they would be otherwise hesitant to publicize. The court coined what it called a “new and distinct” term — the ‘public interest responsible journalism defence.’
Canada’s age-old judicial approach to defamation suits has been to mainly look out for the reputation of the individual versus public interest debate on the issues. The new ruling is in line with those of other Commonwealth countries such as England and New Zealand — a clear support for the uninhibited exchange of information in the public’s interest.
In particular, the court’s decision follows the recent footsteps of the British House of Lords in England, where the public interest responsible journalism defence was given life in the 2007 case of Jameel v. Wall Street Journal Europe.
The Ontario court decision makes the public interest responsible journalism defence a new addition to the group of defamation defences in Canada, which includes truth, fair comment, qualified privilege and consent.
Justice Robert Sharpe of the appeal court wrote that, “The defence is plainly intended to shift the law of defamation away from its rigid reputation-protection stance to freer and more open discussion on matters of public interest and should be interpreted accordingly.”
For example, if a media outlet publishes a story and makes every reasonable effort to ensure the accuracy and truth of its contents, the public interest responsible journalism defence would protect them in the face of a libel lawsuit, even if some of the facts of the story were incorrect.
Prior to the appeal court ruling, the qualified privilege defence was the only real plausible defence for media outlets in defamation cases. Under qualified privilege, the media in Canada is permitted to publish defamatory material within the overall framework of reasonable and accurate news of proceedings in places like provincial legislatures, Parliament, and the courts. Conversely, truth and fair comment were the only other applicable defences in all other areas of news coverage.
The reaction of the Canadian news media to the new ruling was very receptive and amenable to the legal change. Daniel Henry, of the Canadian Broadcasting Corporation (CBC), said: “There is every reason to believe that this new decision will be considered carefully and followed in Canada’s other common law provinces.”
However, Henry also noted that “if a media organization publishes information on any matter of public interest, it can succeed [in a defamation defense claim] even if the information turns out to be defamatory and untrue, if it can convince the court, on a balance of probabilities, that the steps it took in gathering and publishing were responsible and fair.”
In all, there still remains a measured burden of responsibility on journalists and media outlets to ensure that the collection and dissemination of news information is done fairly and within reasonable journalistic practices and standards.
The decision can be read here: http://www.ontariocourts.on.ca/decisions/2007/november/2007ONCA0771en.pdf
First published in 2007 for the Public Legal Education Association (PLEA) of Saskatchewan.
Closure to the Free Speech Debate?
We are fairly confident that many of our readers are well aware that the CIC v. Maclean’s case has been officially closed (at least at this point in time; an appeal is still a legal possibility).
Just in case you didn’t hear - Maclean’s won!
A Political No-Brainer
Does this come as a surprise? It all depends from which perspective you view the matter.
From an administrative law standpoint, there was strong precedent, sufficient evidence, requisite expert testimony, a clear mandate and policy rationale, statutory power, and overall a compelling case to be made in favour of the Complainants. Perhaps the only militating factor against the CIC’s claim was that the Canadian Human Rights Commission recently decided against them.
From a political standpoint it was a no-brainer.
Unsurprisingly, all the major newsprint and most journalists officially endorsed the Respondents, politicians were bombarded with letter and email campaigns resulting in vocal pronouncements for a review of human rights commissions (HRCs) and their provisions, and several civil liberty groups and recognizable figures such as Alan Borovoy provided unwavering support and reprimanded the use of HRCs for censuring our God given right (sic) to express ourselves.
Undoubtedly it was the politics of the day under the auspices of the national media that drove this decision.
The Currie 2-Part Test
This notion is not just sour grapes in light of our seeming support for my fellow legal peers. In fact it was Maclean’s supporters who first delineated this point in their characteristically witty and sarcastic prose.
Mark Steyn opined on the decision almost immediately. In one of his responses he reproduced this quote by fellow free speech advocate and popular blogger Jay Currie:
The way I read this decision is that it imposes a two part test:
a) are your words offensive and hurtful?
b) are you a major media organization with deep pockets represented by serious lawyers.
If “a” and not “b” you are a hate monger; if “a” and “b” you are engaged in political debate.
More importantly and telling is the wording and position of the judgment itself.
About the Decision
The Tribunal goes a long way out by prefacing their analysis by first explaining the Tribunal process. Specifically, it revisits the transformation undertaken over 5 years ago in 2003 which made the BC Human Rights Tribunal (BCHRT) the first “direct access” tribunal in Canada.
Further, it explains that to bypass the screening process there is a low threshold requiring more substance than mere conjecture and speculation, yet less taxing than requiring actual proof; the requirement is that the complaint alleges facts that, if proven, could contravene the Code. Both points justifying and explaining why the complaint made it directly to the hearing process.
Moreover, not only does the decision use legislative requirements to reinforce its undertaking of a hearing, it goes on to highlight Maclean’s failure to legally apply for a dismissal which (by the tone of decision writer) probably would have effectively ended the matter at that juncture.
Lastly, according to this excerpt in the National Post, counsel for the Complainants Faisal Joseph suggests that the tribunal “unilaterally changed the [legal] test” for establishing hatred and contempt, preferring a purely objective test over an earlier, more subjective one that focused on how the alleged hate message was understood by recipients.
What Next?
Moving beyond the decision, questions of what happens next are floating around in the ether.
Has the BCHRT quelled the surge for the abolishment of human rights commission and/or certain provisions by stealthily releasing the painstakingly anticipated decision to the most contentious Canadian debate of 2008 on the eve of a holiday weekend preceding a Federal election?
Or will the self-proclaimed free speech advocates revive this issue to the point where it will be incumbent upon our political representatives to officially confront the matter head on?
This is not the first time that HRCs and their respective provisions have been scrutinized by the media and it won’t be the last. And although this time around the media conglomerates flexed their muscles with overzealous force and coordinated cooperation it appears as if this war in the battle against HRCs has come to a close.
That is not to say that the legislators won’t have their final word through future amendments, but without further action taken in the form of an appeal or some drastic change in public sentiment through the release of a best-selling book, government and the legislature will let the dust settle before weighing in.
Pearl Eliadis Defends Human Rights Commissions
With the recent decision of the British Columbia Human Rights Tribunal in the popularly known Maclean’s Magazine case looming in the midst, and with its final pronouncement sure to rehash frenzied and vociferous chatter over human rights commissions and free speech, a legally grounded deconstruction of the dominating media themes is not superfluous.
In fact, much of the rhetoric from Complainants and supporters of the Canadian Islamic Congress (CIC) and Co. has been disregarded as hogwash as a result of heightened sensitivities and ‘leftist-theorizing’. To add some much needed weight on the other side of the fulcrum, Pearl Eliadis, a practicing human rights lawyer has written a timely piece delineating seven misconceptions about these administrative law decision-makers.
A Quick Recap
Before we get there, a quick recap to date.
The now ‘Osgoode Three’, through the CIC, filed three human rights complaints against Maclean’s Magazine focusing on an excerpt published from Mark Steyn’s book America Alone.
All three of the complaints have been heard and decided. The Ontario Human Rights Commission condemned the writings in Maclean’s but failed to give a decision due to lack of jurisdiction. The Canadian Human Rights Commission ruled that the complaint did not reach the level of hatred and contempt contemplated by the Act. And the British Columbia Human Rights Tribunal dismissed the complaint.
Since the BC hearing in June, two of the loudest advocates, Steyn and Levant, have put their blogs on hiatus and correspondingly the blogospheric debates have quelled and media coverage has attenuated through attrition. Now that they are both blogging again, the Eliadis article is a timely counterpoint:
Media Propagated Myths
In what is termed “Seven False Statements about Free Speech and Human Rights”, the article does an excellent job of isolating the arguments and issues of debate and arguing against some of the popularly held views.
In order, she tackles the following media propagated allegations:
1) Free Speech is an Absolute Right
2) Human Rights Laws were not made to Restrict Free Speech
3) Human Rights Laws only apply to Discriminatory Conduct, not Discriminatory Speech
4) Human Rights Laws do not apply to the Media
5) Human Rights Commissions Dispense “Parallel Justice,” “Prosecuting” and “Convicting” People Outside of Normal Legal Channels
6) Human Rights Tribunals are Rabid, out of Control Bastions of Political Correctness with 100% Conviction Rates
7) Free Speech is under Attack by Frivolous, Expensive, Time Consuming Complaints
Accordingly, the answer to the first six statements is false with point number seven being partially true. In responding to the “False Statements” the article covers historical aspects of Anti-Racism laws and Human Rights Commissions and pertinent legislation. It also integrates legal theorizing, case law and discusses the distinction and rationale underpinning the field of administrative law in support of its conclusions.
It also provides a great overview beginning from the period prior to the filing of the complaints till the final hearing in BC. It is a well-reasoned and argued perspective from a former practitioner and student of the academic discipline free of palpably partisan logic (excluding the provocative cover art).
Editorial note: We have obtained a pdf copy of the article and will be posted it shortly, hopefully in conjunction with an interview with Pearl Eliadis.
May v. Duffy
It’s one of the few times when a title like that won’t be a legal case.
Elizabeth May, leader of the Green Party, took on television journalist Mike Duffy.
Duffy suggests that May can say whatever she wants because she would never be in power. Some Liberals envision a Dion cabinet with May as Minister of the Environment.
But May doesn’t take issue with that swipe and instead objects with Duffy’s characterization of her quote, questioning his journalistic integrity.
h/t Deb Prothero
Updates
Top Twelve Contemporary Hate-Mongers
Fairness and Accuracy in Reporting (FAIR) have released a report on the top twelve hate-mongers in the American media.
Given the substantial American media content in Canada, there is direct relevance to civil rights here (some of them are even Canadian).
Here’s the list, in no particular order:
- Sean Hannity
- Daniel Pipes
- Bill O’Reily
- David Horowitz
- Debbie Schlussel
- Pat Robertson
- Michael Savage
- Steven Emerson
- Michelle Malkin
- Glenn Beck
- Robert Spencer
- Mark Steyn
It’s a distinction of dubious quality, but one that will go down in history as voices of intolerance and hatred.
One of the report’s authors, Steve Rendell, said,
We found prominent right-wing pundits and activists using misinformation and innuendo to broadcast hate against an entire community… and major media have either fallen asleep at the wheel or, in many cases, have actively helped to spread the smears …We’re talking about double standards.
We’re not talking about people raving on a street corner downtown. These are people who either have a powerful platform at their disposal or are allowed unfettered access to powerful platforms by reporters and editors in what are considered mainstream publications…
Media need to step up and do their job of separating fact from innuendo and can tell the impartial experts apart from the smearcasters.
The entire report can be found here, with case studies available on the new FAIR site dedicated to the subject.
FAIR has made their email address available for comment.
CIRA Policy is Not the End of Web Annonymity
Michael Geist of the University of Ottawa law commented today on the new policies by the Canadian Internet Registration Authority (CIRA) regarding individual internet registrants.
He had previously come out in support of their position, but it appears as if CIRA is backtracking on some of their changes.
CIRA is attempting to create a balance between privacy concerns of members of the public registering domain names, and access by those requiring legitimate access to their identity.
As before, information can be provided to law enforcement, and with the spread of hate crimes, threats, fraud, and other abuse on the Internet, this access will likely be increasingly utilized.
But access is also provided to trademark, copyright and patent interests that believe their intellectual property rights have been infringed.
Geist argues that the trademark changes violate Canadian privacy law, and whistblowers setting up a site against their company would be unnecessarily exposed,
Under the new CIRA policy, if they use fake registrant information, they risk losing the domain. On the other hand, the back-door exception means that the trademark holder can easily uncover the identity of the registrant since CIRA will simply hand over this information.
It’s actually not that easy.
The only disputes that CIRA states they will even contemplate a disclosure are when the use:
- infringes Requestor’s Canadian: (i) registered trademark, (ii) registered copyright,
or (iii) issued patent; - infringes Requestor’s Canadian registered (Federal or Provincial) corporate,
business or trade name; or - is making use of the Requester’s personal information without their knowledge or
consent to commit a crime (such as fraud, theft or forgery), to procure money,
credit, loans, goods or services without authorization. (Identity Theft)
Maureen Cubberley, former chair of the CIRA board of directors, has explained that it’s intended for cybersquatting, resale of domain names for profit, and malicious registrations towards competitors,
It’s limited to ‘bad faith’ registrations…
What we’ve done is make an exhaustive list of where the policy would apply in these situations.
Even then, such disclosures would only be made after attempts to contact the individual and resolve the dispute in other ways has been ineffective. There is even a 60-day period where parties can challenge a ruling, and take it to the courts beyond that.
A more valid concern would be social justice advocates attacked for their work by the larger public or major corporations. But as long as a person does not misappropriate a trademark or name or misuse personal information, it’s unlikely that any form of widespread abuse would occur by CIRA.
One of Geist’s more credible issues would be the arbitration process, because panels with a single arbitrator chosen by the arbitrator are more likely to favour with the complainant - in 83% of the cases. A panel with several individuals chosen by both parties is more likely to have a balanced decision.
But that’s exactly the process that CIRA is adopting.
Although complete annonymity and the ability to whine on nearly any subject imaginable might be slightly curtailed, especially when posing as a corporate entity, web hosters would also have a greater sense of responsiblity more akin to the printed press.
They now know that if they abuse their priviledges they will eventually be called to task.
And we’re forgetting one thing.
The new policy would only apply to “.ca” domains, which are still barely used even among the Canadian public.
Geist did predict that if these trademark changes were not made they would,
…instantly catapult the dot-ca into a global leadership position. With more than a million Canadian domain name registrations, the resolution of the WHOIS issue ensures that the Canadian domain name space is set for continued growth as it now features a “privacy advantage” over other domains struggling to strike a similar compromise.
Tightening privacy issues may have promoted the use “.ca” on the Internet, but for now we’re in just about the same place as everyone else, which is probably exactly where we should be.
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