Internet Communication of Hate Messages

The Tribunal has recently issued an important decision regarding the application of subsection 13(1) of the CHRA to a website containing messages that allegedly exposed persons of Jewish faith and ethnic origin to hatred and contempt.¹¹⁸ Subsection 13(1) makes it a discriminatory practice "for a person or group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination."¹¹⁹The complaint before the Tribunal involved material posted on a Homepage (Zundelsite) and accessible on the World Wide Web that denounced in vitriolic terms the alleged fraud of the Holocaust, Jewish/Zionist/Marxist racketeers who allegedly mounted a Holocaust extortion scheme, the supposed Judaization and attendant mental and spiritual circumcision of Western civilization, a long list of supposed lies by the Jewish Lobby, and various con games, cheating and infamous acts said to have been committed by the Jews.¹²⁰

Before reaching the substantive issue of whether material available on the Zundelsite spread hatred or contempt, the Tribunal first dealt with two preliminary questions raised by the respondent (Ernst Zündel); namely, (i) who effectively exercised control over the Zundelsite and (ii) whether the material available on the website communicated telephonically. The respondent had maintained that the individual who owned and operated the website was an American citizen resident in the United States. In support of his contention, he pointed to a clause inserted at the end of the Zundelsite table of contents that specifically identified Dr. A Rimland as owner and operator of the site. However, there was also ample evidence before the Tribunal that Zundel was personally involved in the preparation, selection and editing of materials found on the site. The Tribunal pointed out that the CHRA does not require proof of legal ownership but rather sufficient evidence to establish that the respondent, acting alone or in concert, caused the offending documents to be communicated. In this regard, it concluded: "We are not persuaded that the inclusion of a single disclaimer found at the bottom of the Table of Contents on the Zundelsite is sufficient to displace the overwhelming evidence of control in the hands of Zundel. We would also note that the CHRA specifically contemplates that individuals might act in concert to communicate messages that contravene subsection 13(1). Even if Ms. Rimland maintained some level of control, the evidence supports the finding that, at all material times, she was acting in concert with the named Respondent."¹²¹

Having found that Zundel controlled the site and caused the materials in question to be communicated, the Tribunal turned to the question of whether such communication fell within the scope of the term "telephonic". While expert evidence heard by the Tribunal diverged regarding the descriptive terms best applied to Internet communication, the Tribunal found that in "Canada the network access points and the Internet all run over the same circuits or lines that are used for telephone activity. Like the commercial reality for users wishing to connect with their ISP [Internet Service Provider], the overwhelming proportion of links between an ISP and the Internet backbone, or transmissions among Internet backbone providers use circuits that are, and were, a part of the global telephone network."¹²² The factual relationship of Internet communications to telephone networks thus raised the question of whether the notion of "communicate telephonically" under subsection 13(1) of the CHRA should be construed to include transmission of information by means of a website.

As a point of departure, the Tribunal emphasized that the interpretation of human rights legislation must be undertaken within the context of its underlying purposes. It referred to the Supreme Court summary of the general purposes of the CHRA as being the promotion of equal opportunity unhindered by discriminatory practices. With respect to the specific harm to equality interests that subsection 13(1) was designed to alleviate, the Tribunal adopted the reasoning of the Supreme Court to the effect that "...messages of hate propaganda undermine the dignity and self-worth of target groups members and, more generally, contribute to disharmonious relations among various racial, cultural and religious groups, as a result eroding tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality."¹²³ The Tribunal also underscored that while the provisions of subsection 13(1) were intended to censure hate messages that could very well result in further acts of discrimination by those who listened to them (such as discriminatory denial of employment, housing or the provision of other services), they also sought to avoid independent harm to members of a vilified group that flowed directly from the communication. In the words of the Tribunal: "Equally important, there is an ‘intensely painful reaction’ experienced by individuals subjected to the expression of hatred. The mere fact that they are singled out for recurring, public vilification can erode an individual’s personal dignity and sense of self-worth."¹²⁴

In light of the above-mentioned legislative purposes, the Tribunal refused to construe the act of communicating telephonically as limited to traditional telephone hardware designed for voice transmission. It found that the adverb "telephonically" relates to the means by which communication is effected and not simply to the particular device that might be used: "Whether a message is communicated aurally, by voice, or visually, by text, has no effect on its capacity to influence the listener, or humiliate the subject. Nor does the specific device used to effect the communication alter the harmful character of the message conveyed. A telephone handset is not uniquely effective in the communication of hate messages...In our view, moreover, the interpretation we have adopted is the only form of analysis that can readily take into account advances in technology, and keep pace with those developments. A static interpretation of subsection 13(1), where telephonic communication is restricted to voice transmissions using a conventional telephone device, would dramatically reduce the effectiveness of the CHRA as an aid to the promotion of equality."¹²⁵ The Tribunal also noted that hate messages on the Internet represented a greater threat to equality goals than traditional telephone communications, due to the vast amount of information that can be transmitted and the ease with which it can be accessed and down loaded.¹²⁶

The last issue of statutory interpretation (before addressing the constitutional issues related to freedom of speech) concerned the substantive evaluation of the materials found on the Zundelsite. Were they likely to expose a person or persons to "hatred" or "contempt" within the meaning of subsection 13(1)? In conducting this evaluation, the Tribunal used the Supreme Court’s view that the type of communications caught by the terms of that section were those likely to arouse "unusually strong and deep-felt emotions of detestation, calumny or vilification"¹²⁷ against members of a group, as well as those communications that looked down on or treated members of a group as being inferior. It found that materials on the Zundelsite vilified Jews in the most "rabid and extreme manner...[characterizing them] as "liars, cheats, criminals and thugs’ who have deliberately engaged in a monumental fraud designed to extort funds..."¹²⁸ In short, the Tribunal concluded that readers of the materials in question would hold "Jews in very low regard, viewing them either with contempt, scorn and disdain, or hatred, loathing and revulsion."¹²⁹ It rejected the argument that Mr. Zundel was only engaging in an on-going historical debate about past events, pointing out that the manner in which his views were expressed was clearly inflammatory and tainted with animus towards all Jews. The Tribunal accepted that there must be ample room for legitimate debate and discussion regarding the events surrounding the Second World War: "If this truly were a neutrally worded, "academic" debate, our analysis might be quite different. The tone and extreme denigration of Jews, however, separates these documents from those that might be permissible. We have found that it is the linkage between the author’s view of these events and the extreme vilification of Jews as a consequence: it is their denunciation as liars, racketeers, extortionists and frauds that is likely to expose them to hatred and contempt."¹³⁰

The respondent also challenged he constitutional validity of subsection 13(1) of the CHRA, based on freedom of expression in section 2 of the Canadian Charter of Rights and Freedoms. Although the constitutional validity of subsection 13(1) had already been upheld by the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor¹³¹, the respondent took the position that any attempt to expand the scope of subsection 13(1) to include Internet communications would necessarily place in question the applicability of the previous Supreme Court decision. That decision, argued the respondent, should be read in light of its own particular facts, which involved the communication of a message through a telephone answering service. Seen in its factual context, the Taylor decision resulted in only a minimal impairment of freedom of speech. This would not be the case if the result in Taylor were applied to an interpretation of subsection 13(1) that included Internet communications within its scope. In the view of the respondent, any expansion of the scope of subsection 13(1) to include Internet communications required a new assessment of whether it constituted a reasonable limit on freedom of speech demonstrably justified in a free and democratic society (section one of the Charter). The respondent felt that such a reassessment would show that subsection 13(1) was no longer a reasonable limit.

The Tribunal reviewed in detail the reasoning the Supreme Court in Taylor, which had applied the legal principles inherent in any inquiry under section one of the Charter. It noted that the Supreme Court had addressed its mind to whether the legislative purpose underlying subsection 13(1) was sufficiently important to justify restricting freedom of expression. The promotion of equal opportunity and the avoidance of psychological harm to members of groups targeted by hate messages were found by the Court to be important objectives that justified reasonable limits being imposed on freedom of speech. Moreover, the specific measures found subsection 13(1) were seen to be proportionate to the objective being sought, in the sense they were not arbitrary, unfair or irrational; nor did they impair freedom of expression any more than necessary; nor did they produce effects so severe as to constitute an unacceptable abridgment of freedom of expression. The Court in Taylor also found that dispensing with the need to prove intent under subsection 13(1) did not run afoul of the proportionality test under section one of the Charter:

"Clearly an intention to expose others to hatred or contempt on the basis of race or religion is not required in subsection 13(1). As I have just explained, however, subsection 13(1) operates within the context of a Human Rights Statute. Accordingly, the importance of isolating effects (and hence ignoring intent) justifies this absence of a mens rea requirement. I also reiterate the point that the impact of the impugned section is less confrontational than would be the case with a criminal prohibition, the legislative framework encouraging a conciliatory settlement and forbidding the imposition of imprisonment unless an individual intentionally acts in a manner prohibited by an order registered with the Federal Court."¹³²

The Tribunal accepted that the facts in the Zundel case raised potential restrictions on freedom of expression that went beyond those considered in Taylor. It therefore felt bound to engage in an analysis under section one of the Charter to determine if subsection 13(1) still constituted a reasonable limit on freedom of expression¹³³. In so doing, it referred once again to the underlying purposes of the CHRA and, more specifically, subsection 13(1):

"In our opinion, changes in technology that alter and expand the means of telephonic communication cannot diminish the importance of the purpose found in subsection 13(1) to prevent messages of hatred and contempt directed at identifiable groups that undermine the dignity and self-worth of those individuals. The Internet, as a technology, is capable of purveying and transmitting the same kind of hate messages restrained under subsection 13(1) in Taylor. We conclude therefore that while the Internet introduces a different context from the traditional use of the telephone, the first branch of the Oakes test is satisfied. Parliament’s intent to prevent serious harms caused by hate propaganda remains a matter of pressing and substantial importance and this is so whether such messages are borne through the medium described in Taylor or through the Internet...We cannot read into Taylor an intention that the matter of pressing and substantial importance was to be confined narrowly to the facts in evidence in that case. We see no basis for such a restricted interpretation having in mind what the Court has said about the high purpose of the Canadian Human Rights Act."¹³⁴

The means chosen to achieve the purpose of suppressing hate propaganda were also found to satisfy the test of proportionality, despite the factual differences between the case at bar and the Taylor case. The Tribunal pointed out that the type of messages targeted by subsection 13(1) were distant from the core value of freedom of expression. The latter was therefore restrained in a minimal way and no more than necessary to achieve the important objective of the legislation. It concluded that it was eminently rational to interpret subsection 13(1) as including messages repeatedly transmitted on the Internet:

"As a society, our disapproval of hate messages does not depend narrowly on whether they are found on a telephone-answering device. Parliament has spoken. If the telephone is ideally suited to the effective transmission of prejudicial beliefs as part of a campaign to affect public beliefs and attitudes, how much more effective and ideally suited is the Internet to the efficient transmission of such detrimental beliefs...Since the focus of subsection 13(1) is on ‘repeated’ telephonic messages that are likely to expose persons to hatred or contempt, attention is directed to large scale, public schemes for the dissemination of hate propaganda. The structure of the Internet communications makes it especially susceptible to this analysis. It is difficult for us to see why the Internet, with its pervasive influence and accessibility, should be available to spread messages that are likely to expose persons to hatred or contempt. One can conceive that this new medium of the Internet is a much more effective and well-suited vehicle for the dissemination of hate propaganda."¹³⁵

The section one analysis conducted by the Tribunal regarding restrictions on freedom of expression was also applied to the respondent’s claim that his freedom of conscience and religion under the Charter had been unreasonably limited by subsection 13(1). It therefore concluded that any limitations imposed on the respondent’s freedom of conscience or religion were reasonable and justified in a free and democratic society within the meaning of section one of the Charter. The Tribunal also rejected the respondent’s argument that his rights under section 7 of the Charter to "life, liberty and security of the person" were breached by subsection 13(1), referring to the fact that any cease and desist order from the Tribunal regarding the material available on the Zundelsite did not in any way physically restrain the respondent (hence his liberty interest was not engaged), nor place in question his security of the person. Finally, the Tribunal dismissed arguments that amendments to the CHRA modifying the power of the Tribunal to issue remedies for any breach of subsection13(1) created a legislative framework that could no longer be considered compatible with Charter rights. First, these amendments did not apply to the case at bar as it concerned facts that predated the amendments in question. Second, the increased scope of penalties under the amendments could not be construed as transforming available remedies into criminal law sanctions. In this regard, the Tribunal relied on findings in Taylor that, "as an instrument designed to prevent the spread of prejudice and to foster tolerance and equality in the community, the CHRA is very different from the Criminal Code. The aim of human rights legislation, and of subsection 13(1) is not to bring the full force of the state’s power against a blameworthy individual for the purpose of imposing punishment. Instead, provisions found in human rights statutes generally operate in a less confrontational manner, allowing for a conciliatory settlement if possible and, where discrimination exists, gearing remedial responses more towards compensation of the victim."¹³⁶ Applying this reasoning to the matter before it, the Tribunal found that the amendments relevant to remedies did not change the remedial nature of the CHRA, nor place in question its constitutional validity.

In light of its findings, the Tribunal issued an order against Ernst Zundel and any other individuals acting in his name to cease the discriminatory practices related to the Zundlesite that were reflected in the material placed before the Tribunal, or reflected in any other material of a substantially similar form or content. In so doing, it recognized the limits of remedial power available in the case:

"There always exists the possibility that an individual, wholly unrelated to a named respondent, will engage in a similar discriminatory practise. The technology involved in the posting of material to the Internet, however, magnifies this problem and arguably makes it much easier to avoid the ultimate goal of eliminating the material from telephone communication. Nonetheless, as a Tribunal we are charged with the responsibility of determining the complaints referred to us, and then making an Order if we find that the Respondent has engaged in a discriminatory practise. We cannot be unduly influenced in this case by what others might do once we issue our Order. The Commission, or individual complainants, can elect to file other complaints, or respond in any other manner that they consider appropriate should they believe that there has been a further contravention of the Act."¹³⁷

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End Notes