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THE LAWYERS WEEKLY

October 28, 2011 | 5

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Opinions

The fight against online hatred

Nobody actually admits to hating human rights. But an ongoing campaign is continually chipping away at the ability of human rights commissions to combat hatred in Canada. On Sept. 30, MP Brian Storseth introduced a private members bill to remove ss. 13 and 54 of the Canadian Human Rights Act. These sections were amended in 2001 to address hateful messages over the Internet, where a largely unregulated environment allowed hatred to flourish. Section 13 suppresses the basic right to freedom of speech in our society that is guaranteed under the Charter of Rights & Freedoms, said Storseth. But as Canadian Human Rights Commission investigator Dean Steacy said, Freedom of speech is an American concept. Restrictions on freedom of expression are acceptable in Canadian law where reasonable goals toward promoting democracy are identified. In 2009, Tribunal Chair Athanasios Hadjis decided in Warman v. Lemire that the penalty provisions under s. 54 of the Act were unconstitutional and could not be saved by s. 1 of the Charter. Storseth and his supporters rely heavily on Lemire to demonstrate how the Act is antiquated and in need of reform. The conclusion that these provisions need to be

OPINION

OMAR HA-REDEYE

[T]ribunals still provide one of the best forms for amicably resolving hateful messages online.

repealed completely could only emerge from an oversimplification of Lemire, which dealt with hateful messages online, including the neo-Nazi site Stormfront. The tribunal found the wording used in s. 13 was not vague or imprecise, as pleaded by the respondent. And it was only the sentencing considerations under s. 54 that were found unconstitutional. One increasingly popular tactic in Canada has been to record videos of public protests and post them online, naming individuals identified in the crowd. The only purpose for doing so is to intentionally belittle the targets and try to attach their name to some form of racial contro-

versy for anyone who searches them online. They are not interested in promoting expression, but rather stifling public participation and speech through what can only be called an emerging form of cyber harassment. The most antagonistic writers are far less conciliatory than the respondent in Lemire, who was not even aware of all the offending material on his site and removed it as soon as he discovered the complaint. Advocates for repealing s. 13 often like to point out that today it might be their expression that is curtailed, but tomorrow it could be yours and mine. The same goes for being the target of hateful or malicious speech. Although vulnerable minority groups are usually the ones being picked on, some malcontent could just as easily decide to start a campaign against any of us in the future. Those who have not prepared for this inevitability by proactively creating a web presence will find it very difficult to recover their online reputation. In the 2006 expert report prepared for the Attorney General of Canada in Lemire, Professor Alexander Tsesis of the Chicago-Kent College of Law notes that many times the marketplace of ideas which freedom of expression legislation seeks to foster does not necessarily reach an objective

truth. Instead, it can result in violence and genocide. The Internet poses new challenge to egalitarianism, wrote Tsesis. Hate groups commonly use it for the worldwide circulation of messages intended to recruit and consolidate hate groups. Legal remedies create a more minimal impairment to expression than alternative technologies like Internet filters, which often cast a far broader net than intended. We have already seen several incidents this year that should shock the public conscience. Students on the Universit de Montral (U of M) campus were recently filmed dressed in blackface, completely oblivious to the hurtful stereotypes they depicted when waving Jamaican flags and shouting smoke some weed! in front of Anthony Morgan, a Jamaican-Canadian studying law at McGill University. Another U of M law student appeared at frosh activities wearing a costume emulating Nazi war criminal Dr. Josef Mengele. These incidents do not emerge in a vacuum and are only deemed acceptable in a culture that promotes ignorance and insensitivity. The more insidious results of hatred manifest themselves in subtle forms of discrimination and exclusion in the workplace and society well beyond either the makers or recipients of

hateful messages. Following the attacks by right-wing Norwegian terrorist Anders Breivik, we must also realize that law enforcement and intelligence have been largely inattentive to hate messaging toward minorities. Breivik developed his ideology through a long correspondence of hateful messages over the Internet. Online hatred can have very serious impacts on the public at large, not just the minority groups who are the initial targets. Human rights commissions have played a crucial role in ensuring that Canada is the beautifully multi-faceted and tolerant country it is today. The Act may require some changes to s. 54 in the manner in which sanctions are implemented. But hatred on the Internet is a very real problem and mechanisms to fight it, including s. 13, are still needed. Instead of criminalizing all speech or resorting to expensive and drawn-out civil defamation claims, tribunals still provide one of the best forms for amicably resolving hateful messages online. Omar Ha-Redeye is a Toronto lawyer and he dedicates a portion of his practice to online reputation management.

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