Copyright (c) 1997 - Ingrid A. Rimland
"I attended parts of the recent "International Symposium on Hate on The Internet", sponsored by B'nai Brith Canada (BBC), as a representative of EFC.
Here are some reflections on what occurred at the Symposium. I did not take copious notes, so some of these are transcribed from my (often faulty) memory. I apologize in advance for any errors and for the disorganized presentation of these notes. I am happy to make corrections when notified.
On Sunday, September 7, 1997 the symposium opened at the BBC National Office in North York. The symposium opened with a round-table discussion entitled "The Problem and What Should We Do About It".
The moderator was Mark Webber of York University Copyright (not to be confused with a Holocaust-denier with a similar name).
The panel included
Nadine Strossen, president of the ACLU
Sigurd Werner, State Police of Baden-Wurttemburg, Germany
Irwin Cotler, McGill Univeristy
Alan Borovoy, CCLA
Jeremy Jones, Executive council of Australian Jewry
Not surprisingly, Strossen and Borovoy came down on the side of not regulating hate speech, while the others were in favor.
I am not positive of the order of speakers, but what follows is according to my memory.
Strossen spoke first and was very effective, I thought. She mentioned some of the following points:
1. Restrictions against hate speech are invariably used by governments against the people they are intended to protect: minorities without political power. This is why some prominent members of some minority groups are against these laws. She referred in particular to an essay of Henry Louis Gates, Jr., in a book she helped edit: _Speaking of Race, Speaking of Sex_.
2. Restrictions against hate speech make martyrs out of people who would not gain attention with prosecutions.
3. Restrictions against hate speech are fundamentally anti-democratic, because they deny to the citizen the ability to decide the truth for himself.
She also spoke about the CDA in the US and how powerful and important the US Supreme Court decision was. (Unfortunately, as is usually the case in Canada, any mention of US legal precedents caused the eyes of the most of the audience to glaze over.)
Sigurd Werner spoke next. His accent was rather thick and hard to understand, and his command of grammar was poor. Basically, he argued that Germany had an obligation to stem the tide of neo-Nazi violence and hate speech laws were one method of doing so.
Alan Borovoy of the CCLA was next. His comments were basically similar to Strossen's. He did concede the constitutionality of a hate speech law that was much more narrowly tailored than the current one (Section 319 of the Criminal Code) -- one that would criminalize only speech that advocated immediate harm to an individual based on his race or religion, for example. He also made the point that Weimar Gemerany had hate speech laws, but they did nothing to prevent the Holocaust.
Borovoy also pointed out that free speech was responsible for much of the success of the US civil rights movement, despite it being led by "vulnerable minorities" who supposedly need government aid to protect them from attacks.
Borovoy also pointed out that the original Keegstra decision, which affirmed the constitutionality of the hate speech law, was decided only 5-4.
Irwin Cotler was next. He, like Borovoy, pointed out that he knew little about the Internet. He made a big deal of the fact that the Internet made hate speech accessible to millions today and might make it available to hundreds of millions worldwide in a few years. (I thought this was misleading, since the fact that hundreds of millions may have access to a few dozen hate sites does not mean that even 1% will be visiting those sites, and I pointed this out during my reply.) He argued that society has a responsibility to protect powerless minorities, and that hate laws were one way of doing so. He also argued that the minorities themselves demanded such laws. He talked about the need for "balancing" the right to speak with other rights. (The trouble with balancing, Nat Hentoff has remarked, is that free speech usually gets balanced to the back of the bus.)
Cotler pointed out that while it was true that Keegstra was decided 5-4, in Keegstra II it was revisited and reaffirmed by a vote of 9-0. He poked a little fun at Borovoy -- it was clear these two men knew each other for many years.
Finally, Jeremy Jones spoke. He was good-humored, but like many participants of the conference, misleadingly conflated "hate speech" with "hate crime". I think these two should be kept separate. A "hate crime" is a criminal act, such as assault or destruction of property, motivated by some identifying characteristic such as race, religion, etc. "Hate speech", however, does not involve a physical act other than speaking, writing, etc. It is clear that one can criminalize hate crimes without necessarily criminalizing hate speech. Similarly, he conflated harassment (threatening e-mail, for example) with other forms of expression. Not surprisingly, he came down on the side of regulation.
There was a brief question-and-answer period. I asked whether the de facto right-to-reply on the Internet made it different from other media. Nadine Strossen agreed that it did, and hence that it deserved more protection.
Ken McVay of Nizkor asked the German prosecutor if, by having links to many hate group sites, he would be liable under German law. I don't think the prosecutor understood the question, and I didn't understand his action.
Jeremy Jones addressed my question about right-to-reply with an emotional response that I thought missed the point. He said, "What about the right-to-reply of Holocaust survivors who receive anonymous threatening e-mail?" Had I been allowed to respond, I would have pointed out again the conflation of threats with ordinary hate speech.
That evening there was a presentation by Ken McVay about the variety of hate group sites on the Internet, and what Nizkor is doing to combat them, but I did not attend.
The next day I attended the Plenary session entitled "Regulating the Internet: Should We? Could We?"
The moderator was David Matas, legal counsel for BBC. (He also prepared a paper entitled "Countering Hate on the Internet: Recommendations for Action" that was distributed to all participants. More on this below.) The other speakers were
Michael Bernstein, Deputy Director (Prosecutors), Crown Law Office - Criminal, Ministry of the Attorney General for Ontario Jim Mercer, Network Architect, Reptilian Research
William Pentney, General Counsel, Canadian Human Rights Commission
Richard Rosenberg, Vice President, EFC
I think the order was Mercer, Pentney, Rosenberg, Bernstein.
Mercer argued that regulation of the Internet was technically impossible.
Pentney was soft-spoken, but rather chilling. Not surprisingly, as General Counsel for the CHRC, he was strongly in favor of regulation, especially the application of Section 12 and 13 of the Canadian Human Rights Act to the Internet. He argued this was society's duty to protect vulnerable minority groups.
Richard Rosenberg of EFC was next. His presentation, on slides, was a little rushed for the small amount of time he had been allocated. He also argued that regulation was impossible, pointing to the ease with which sites can be mirrored world-wide. He said that defending free speech nowadays (as contrasted with defending it years ago, when one defended the speech of people who attacked the government) involved mostly defending pornographers and racists, but that was no reason to shirk one's duty. He referred favorably to Judge Dalzell's decision in the CDA case, holding that the Internet, as a world-wide conversation, deserves the highest protection from governmental intrusion.
Finally, Michael Bernstein spoke. Like other speakers, he disparaged the use of US cases as meaningful for Canada. He pointed out that hate speech was against the law in Canada, and this applied to the Internet. He also made the single most chilling comment I heard during the symposium: he said that expressions of hate in e-mail might not be protected speech because "the Internet is not secure and one cannot be sure of the confidentiality of e-mail communication". I took this to mean as his asserting that there is no "reasonable expectation of privacy" for e-mail, which he later confirmed to me personally. His view is apparently based on a recent decision of the Supreme Court of Newfoundland (I do not know the citation) which held that expressions of hate via mail were not protected speech because there is no reasonable expectation of privacy in ordinary mail! This is astounding. It seems to imply that the "private conversation" of Section 319 (2) of the Criminal Code does not apply to Canada Post or e-mail.
Bernstein also raised the possibility that under various interpretations of conspiracy statutes, one would be liable if one aided others in constructing hate web sites outside the jurisdiction of Canada. He implied that the fact that content outside Canada could break Canadian laws was just a technicality, and that there were various means of getting around this technicality. This led to Rich Graves' question, below.
Questions were solicited from the audience, but because the time was so short, they were only asked and not answered! Answers were said to occur during the follow-up workshops.
Rich Graves asked whether he would be liable for prosecution, since he instructs activists against government repression (giving as examples both Canadian neo-Nazis and Burmese democrats) how to distribute their material over the Internet.
The group split up into workshops. I attended the workshop entitled "Legal/Legislative Issues". The speakers were
Eddie Taylor, Legal Advisor, Canadian Human Rights Commission Marvin Kurz, National Legal Counsel, League for Human Rights
Taylor spoke first, and at great length. He discussed the application of the Canadian Human Rights Act to the Internet, particularly with reference to the upcoming Zundel case, which is due to start hearing testimony beginning in mid-October. He spoke a bit about the jurisdictional issue in that case -- which is complicated by the fact that Zundel's web site is actually in California. He seemed to think this was not a problem for the CHRC's case, since earlier in the Liberty Net case, when racists moved their telephone hot line from Vancouver to Bellingham, Washington (together with a phone message on their Vancouver line directing them to call Washington) they were held in contempt of court for violating the original court order to shut down the Vancouver line. He seemed to think this sort of reasoning could apply to the Internet. In particular, in response to a question by me, he confirmed that *merely having a link on one's web page on a computer in Canada to computers outside Canada that deliver hate propaganda, could make one liable under the Human Rights Act*. However, he stated that the CHRC is sensible and only goes after the "bad guys", and so he would never move against Ken McVay, for example. He pointed out that there have been only a dozen prosecutions under the Human Rights Act. However reassuring this was intended to be, I can only say that *I* found it chilling. A law that depends on such arbitrary judgments of prosecutors is a law that can be, in future times, selectively used against anyone the State deems a menace. He also pointed out that Keegstra II affirmed the constitutionality of hate speech regulation by a 9-0 vote.
Kurz spoke. He drew an analogy between an old tuxedo and existing laws, stating that one can use existing laws to prosecute hate on the Internet, but like an old tuxedo, these laws (designed for other media of communication) don't fit well. Perhaps, he stated, we need new laws that fit better.
He mentioned that Canada, as a signatory to the International Convention on Human Rights, is obligated by international treaty organizations to take action against hate speech.
He mentioned five legal ways to go after hate speech in addition to the Criminal Code:
1. The Customs Tariff. It governs importation of material into Canada. He mentioned preventing the Turner diaries from entering Canada as one of the "successes" of this approach. (During a follow-up question I stated that I did not view this as a success, since it is my view that in order to understand what led to the Oklahoma City bombing, for example, one should read this book. Unfortunately, I cannot, since it is not legal to import into Canada.)
2. The Postal Act. Using the mails to communicate hate could get your postal privileges revoked. This has only been invoked once, in a Zundel case.
3. The CRTC Act. Under the Broadcasting Act there can be actual prosecutions for hate speech. There has only been one -- a Niagara Falls radio station that broadcast disparaging items about Indians. Other methods under this act include licence renewal and complaints about the conduct of broadcasters.
4. Group libel laws in Manitoba and BC.
5. Provincial human rights codes. These are not effective, and the Internet is NOT in the jurisdiction of these. (One of the few pleasant interpretations of the law I heard.) Kurz complained that these human rights codes are therefore not effective against hate on the Internet.
In response to a question, the new anti-gang legislation was brought up. It was stated that this new section of the Criminal Code made it illegal to participate in a crime as part of a criminal organization, where criminal organization was defined as a group that consistently engages in indictable offences over a period of time. This was advocated as a new weapon against neo-Nazi groups. (The law was intended to be used against Montreal motorcycle gangs.)
The Symposium also passed out various documents, such as
David Matas, Countering Hate on the Internet: Recommendations for Action
-- this paper suggests fourteen "remedies" for hate speech on the Internet:
1. Posting (what Ken McVay does).
2. Making anti-hate computer games (presumably for consumption by kids)
3. Service providers can withdraw services.
4. Telephone companies to withdraw services.
5. Service providers should have codes of conduct stating they will deny services to hate promoters.
6. Pressure can be put on phone companies and service providers to withdraw services
7. Better parental supervision, including blocking programs 8. Institutional supervision, including universities blocking certain newsgroups
9. Access provider limitations, such as not carrying all newsgroups
10. Blocking programs, such as NetNanny
11. User agreements
12. Access provider agreements
13. Address prerequisites (by InterNIC, etc.)
14. International convention
While recommendations 1 and 2 are certainly acceptable to EFC, and I personally view 3, 4, 5 as the right of any business, and I personally view 6 as acceptable (analogous to boycotting to achieve political goals), the other suggestions are an excellent way to chill speech on *any* controversial topic, not just hate speech. Some of these suggestions, such as universities blocking newsgroups, are truly Orwellian.
In contrast to Matas' recipe for censorship, another document, entitled
The Web of Hate: Extremists Exploit the Internet
by the Anti-Defamation League, was much more sensible. This document recommends that "People of goodwill must continuously monitor the Internet, especially the World Wide Web, to counter messages of hate with information that challenges bigotry, exposes the bigots, and promotes tolerance, decency, and truth." Now that's a recommendation that EFC can live with.
Conclusions.
Not surprisingly, the voices against regulation at this Symposium (CCLA, ACLU, EFC, Rich Graves, Ken McVay) were significantly outnumbered by the voices in favor. Unfortunately, anti-hate laws have been passed and upheld by the Canadian Supreme Court as a valid restriction on freedom of speech.
Not content with these dubious triumphs, many called for additional regulation of the Internet, using both existing laws (such as Section 319 of the Criminal Code and the Human Rights Act) and new ones. Prosecutors hinted that they would not be bound by the extra-territoriality of offences, saying that, for example, service providers could potentially be held liable for importation of hate propaganda, as could those who merely provide links to hate propaganda sites located elsewhere. Even conspiring to make this material available might be an offence.
I conclude that we will hear more and more about initiatives to regulate the Internet in the future, and we must be vigilant, complaining loudly to our MP's, MPP's, and MLA's about any new proposed changes to the law that would negatively affect electronic speech, and working when possible to repeal existing laws that cast a shadow on freedom of speech in Canada.
Jeffrey Shallit