Tuesday, February 23, 2010

NATIONAL POST: Internet rendered hate law 'outdated'


Internet rendered hate law 'outdated'

Section 13 Review
Joseph Brean,  National Post 

The 20-year-old legal reasoning behind Canada's human rights hate speech law is now "utterly outdated" because of the "interactive, dynamic and democratizing" effects of the Internet, according to arguments in Federal Court.

Section 13 of the Canadian Human Rights Act, which prohibits online messages that expose identifiable groups to hatred or contempt, was designed in the 1970s for telephone hate hotlines. In 1990, the Supreme Court of Canada ruled it a justifiable limit on freedom of expression, in part because a telephone hate message "gives the listener the impression of direct, personal, almost private, contact by the speaker, provides no realistic means of questioning the information or views presented and is subject to no counter-argument within that particular communications context."

The Internet "radically changed" that context, by allowing for instant rebuttal and discussion, according to lawyer Barbara Kulaszka.

Parliament's decision in 2001 to expand Section 13 to include the Internet -- and therefore almost every word published in Canada, whether by a blogger or a media conglomerate -- is "such a fundamental change" that Federal Court is "not only justified but required" to revisit the question of Section 13's constitutionality, especially because it does not allow for the traditional legal defenses of truth or fair comment.

The Internet "provides every means of questioning information and of counter-arguing, the two vital factors missing in the telephone message context," Ms. Kulaszka wrote in her legal submissions for Marc Lemire, webmaster of freedomsite.org. The memorandum gives a glimpse of the battlefield terrain for the upcoming Federal Court review of Mr. Lemire's acquittal last year on hate speech allegations at the Canadian Human Rights Tribunal.

CHRT chairman Athanasios Hadjis brought Canada's perennial hate speech debate to a crisis by ruling that Mr. Lemire had, in fact, violated Section 13 in a single instance out of many alleged, but that the law itself was unconstitutional. He found that a 1998 amendment to add the possibility of a $10,000 punitive fine created a conflict with Section 13's supposedly remedial and conciliatory purpose.

Ms. Kulaszka describes that one violation -- for posting an anti-black and anti-gay article called AIDS Secrets, written by an U.S. neo-Nazi -- as "a discussion of matters of public interest on AIDS which should not have been subject to censorship."

In a hate speech debate that has many threads -- from Muslim integration and the "gay agenda" to neo-Nazism and the Danish cartoons -- the case against Mr. Lemire is the main event, a politically toxic, eight-year human rights slugfest that began on an obscure, far-right Internet chatroom sometime in 2002, and now seems likely to set a new Canadian direction on hate speech.

The CHRC is expected to argue that, by severing the penalty provision, Section 13 can be saved.

Ms. Kulaszka argues in her brief this cannot be the case, because the penalty and victim compensation provisions "reflect the intent and objective of Parliament to chill, punish, and deter expression as set out in [Section 13]. They are the pith and substance of what Parliament wanted to attain in the legislative scheme around [Section 13]."

She argues even human right tribunals do not see Section 13 as purely remedial, citing decisions that describe "cease and desist" orders against hate speech respondents as having "symbolic" value as a "public denunciation."

"This imports the moral condemnation and stigma which [the Supreme Court of Canada] believed was absent from human rights legislation," she writes.

Her brief also argues that the Canadian Human Rights Commission, which acts as a gatekeeper for the tribunal, did not take the remedial and conciliatory approach described in law, but rather refused repeated attempts at mediation, even though Mr. Lemire's alleged hate messages had been removed from the Web.

She argues the word "hate" is "meaningless" because of its unpredictable and "limitless" application, including "jokes, books, essays, historical commentary, message board postings, cartoons and poems."

"Any word that requires the services of an expert and a lawyer sitting by the computer is not a definable word."

She describes CHRC hate speech investigators as having "regularly communicated with police forces about respondents," obtaining information such as "Crown briefs setting out the most personal information," telephone records searches, motor vehicle records, police surveillance, witness statements, evidence seized under warrant, and information from the Canadian Police Information Centre.

She mentions the possibility of agreements between the federal government and provinces to share personal information, which "means Canadians subject to a [Section 13] complaint may have any information they provide to the CHRC sent to police forces across the country without their knowledge or consent or any warnings whatsoever."

She also criticizes the extrajudicial pressure that can be put on Internet service providers to take action against information on their servers that could be said to violate Section 13 .

"The use of censorship to stop psychological harm is a blunt instrument" that in fact has the opposite effect, she wrote, because it "leads to division, not harmony, as each strongly self-identified groups starts using complaints to assert its interests."

"Canada has a general population that deals well with expression, values the right to expression and does not experience the harm that is said to justify [Section 13]. Canadians overwhelmingly prefer open debate, not censorship," Ms. Kulaszka wrote.