When regulating the Internet, Canada struggles with it being borderless and how to uphold freedom of expression.
In the past months, we have seen increased concern about hate speech and racial discrimination on social media in Canada and around the world. There are renewed calls for increased regulation of illegal content. In fact, a recent poll commissioned by the Canadian Race Relations Foundation shows 75% of Canadians are concerned about the rise of “right-wing extremism and terrorism”. They also want the Canadian government to increase regulation of hate speech on Twitter and Facebook. The federal government has been holding House of Commons heritage committee hearings on the relationship between the government and Facebook. Facebook officials say they would welcome guidelines. The federal government hopes to introduce legislation on posting hate speech, child sexual abuse material and other illegal content on social media platforms in the first quarter of 2021.
Perhaps ironically, 25 years ago in a LawNow article, I asserted it would be very difficult, if not impossible, for the government to regulate the Internet for a number of reasons. My (perhaps idealistic) conclusion was:
However, if they develop a code of ethics and practices which reflect community standards, systems operators could provide a valuable service in preventing or eliminating offensive materials.
Canada continues to struggle with the borderless aspects of the Internet when seeking to regulate it. There have been many instances of hurtful, harmful and dangerous communication on social media. How does Canada effectively address it, and, at the same time, uphold freedom of expression?
Many civil libertarians believe that freedom of expression, the cornerstone of democracy, should be very carefully limited. The Canadian Civil Liberties Association’s view on Freedom of Expression is:
When government actors are allowed to decide which opinions can be expressed and which cannot, an open, vibrant and diverse society quickly breaks down. Similarly, when our court system is used to silence those with unpopular views or those who oppose powerful actors, we all lose the opportunity to hear all sides of an issue and come to our own conclusions. Freedom of expression is the right to speak, but also the right to hear. Informed political debate requires that this right be strongly protected, and it is only through free expression that individuals can take action to ensure that our governing institutions are held accountable.
Likewise, the British Columbia Civil Liberties Association (BCCLA) has taken a traditional civil libertarian approach. This approach supports freedom of expression, despite the message being offensive. In 2019 they stated:
The BCCLA strongly believes that a broad range of perspectives must be welcome in our public sphere. …We continue to hold that the best remedy for bad speech is not censorship, but better speech and more compelling arguments.
At the same time, they stated:
We are unequivocally opposed to antisemitism and all forms of racism. We absolutely and fully support provincial initiatives to combat all forms of systemic racism, racial profiling, and racial targeting, including antisemitism, Islamophobia, anti-Palestinian racism, anti-Black racism, anti-Indigenous racism, anti-Asian racism, casteism, and more.
How can governments (and social media platforms) effectively address the effects of racism, hate and other “dangerous” speech?
There is existing legislation in Canada aimed at this challenge.
Governments in Canada are subject to the Canadian Charter of Rights and Freedoms (Charter). The Charter reads at s 2(b):
Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
The Supreme Court of Canada (SCC) has given broad interpretation to “freedom of expression”. The SCC has also made it clear that freedom of expression may be restricted under s 1 of the Charter. Section 1 says the rights and freedoms guaranteed in the Charter are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” For example, some public expression may incite hatred and deliberately attack the basic human dignity of a person because they belong to, or are perceived to belong to, an identifiable target group. This is known as “hate expression”, “hate propaganda”, or “hate speech”.
“The right conferred by s 2(b) of the Charter embraces a continuum of intellectual and expressive freedoms—’freedom of thought, belief, opinion and expression’.” Above all, the purpose of s 2(b) is to permit free expression with the goal of promoting truth, political or social participation and self-fulfillment. That purpose extends to protect minority beliefs that the majority regards as wrong or false. Expression taking the form of violence or terror, or directed towards violence or terror, is unlikely to find shelter in Charter guarantees. However, freedom of expression arguments most often involve a tension between the majoritarian view of what is true or right and an unpopular minority view. To this end, we see the tension between individual freedom of expression and the right to be free from discrimination play out in court cases involving minority legal issues.
Some provincial human rights codes prohibit publication of material that promotes hatred. They protect a wide range of minority groups and offer different remedies, from monetary remedies to an apology.
In addition, Canadian Parliament and provincial legislatures have implemented controls on hate expression under the Criminal Code’s hate propaganda provisions at s 318 to s 320. In 1984, the Supreme Court of Canada held in R v Keegstra that, while section 319(2) of Criminal Code infringes freedom of expression provisions of the Charter by prohibiting willful promotion of hatred, it is a justified limitation.
There is a high threshold to charge someone under the hate propaganda provisions of the Criminal Code. According to s 319(1) of the Criminal Code, a person can be sentenced to up to two years in prison for making statements in a public space that incite hatred against any identifiable group. Those statements must be likely to lead to a breach of the public peace and order. Under s 318(4), “identifiable group” includes “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability”. Also, a person can be sentenced to up to two years in prison for making statements that willfully promote hatred against any identifiable group, other than in private conversation. The statements covered by the prohibition against hate expression are not limited to language alone. They may include spoken, written or recorded words, as well as gestures, signs or other visual representations (s 319(7)). Also, “public place” can include any place where allowing expression is supported by the historical or actual function of the place, and whether allowing expression in the place would undermine the values of free expression. The ‘values’ of free expression include self-fulfillment, political discourse, and truth-seeking.
Even if this high threshold is met, there are several defenses to the crime of willfully promoting hatred under Criminal Code s 319(3). No one will be convicted if:
- the accused establishes that the statements communicated were true;
- the accused in good faith expressed an opinion on a religious subject or an opinion based on a belief in a religious text;
- the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds the accused believed them to be true; or
- the accused in good faith intended to point out, for the purpose of removal, matters producing feelings of hatred toward an identifiable group in Canada.
The Criminal Code may seem to conflict with freedom of expression guarantees in the Charter. However, the SCC said in Keegstra the infringement of individual freedom of expression can serve an important anti-discrimination objective. The Court further found that the limitation of individual freedom of expression is to be balanced with the objective of anti-discrimination, so the limitation of hate expression was not excessive. Despite these thoughtful principles, there have been very few successful prosecutions under existing Criminal Code anti-hate provisions.
Likewise, provincial anti-discrimination codes are not usually used to address hate speech. For an example, see the 2013 Supreme Court of Canada case Saskatchewan (Human Rights Commission) v Whatcott.
While existing laws and cases try to negotiate the delicate balance between freedom of expression and anti-discrimination, this remains a highly debated area of law. At the same time, most Canadians want stronger regulations. It is going to be very difficult for the government to establish a set of guidelines that will effectively encourage civil discourse in light of these challenges.
AUTHOR’S NOTE | Sources consulted in preparing this article include:
- Alberta Civil Liberties Research Centre, Freedom of Expression and Its Limitations in Canada: Background Materials and Learning Activities (2004) at 69
- Linda McKay-Panos, The Internet Universe: Should It Be Regulated by Legislation [article] LawNow, 21(2) (October/November 1996) at 95
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The information in this article was correct at time of publishing. The law may have changed since then.
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