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5. The Role of Non-State Actors in the Prevention of Hate Speech
An effective community response to the problem of hate speech must involve non-state actors and must include alternatives to censorship. However, the short time frame within which I have been asked to prepare this report has prevented me from exploring in any detail non-legal responses to hate speech on the Internet. In this section I will briefly outline two ways in which non-state actors may play a role in the fight against hate speech. I have not addressed education, even though I recognize that it must remain the most important defence against the spread of hatred.
(a) Internet Service Providers
Internet service providers, as common carriers, are exempted from the application of section 13.84 Section 13(3) provides:
(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.
Most ISPs, however, require their subscribers to adhere to an acceptable use policy (AUP) that establishes standards for online behaviour. AUPs often provide that the ISP may take action, including termination of service, if a subscriber posts offensive or illegal content.85 Nevertheless ISPs have often been reluctant to take action against hate sites hosted on their systems without a court or tribunal order. This is in sharp contrast to their response to child pornography, which the ISPs have been willing to remove at the request of the police, without any adjudicative decision.86 The claim is made that child pornography is different because it is easier to identify than hate speech and because it is unlawful in Canada not only to post child pornography on the web but also to access it. I suspect, however, that the ISPs are more willing to intervene in the case of child pornography because the public’s revulsion to this material is so strong.
Unilateral action by a common carrier to censor material is not something to be encouraged (and, I should add, is not something in which ISPs wish to engage). At the same time, it seems regrettable that hate speech sites may remain in operation until a determination is made by either a court or a tribunal. Both the criminal and CHRA processes are onerous and time consuming. The problem of hate sites remaining active pending an adjudicative decision may be alleviated to some extent if the CHRC investigation process is expedited and if the CHRC routinely applies for an interim injunction against a site prior to adjudication by the CHRT.87 Section 320.1 of the Criminal Code, which has so far been under-utilized, may also provide a way to shut down sites more quickly.
The challenge is to define a role for ISPs in the prevention of unlawful hate speech that enables them to take quick and effective action but does not put them in the position of making (or give then the power to make) discretionary censorship decisions. A possible solution to this dilemma is the establishment of an advisory body that, while created by the ISPs, operates at arm’s length and gives its opinion as to whether a particular website or posting on a site hosted by an ISP breaches either section 13 of the CHRA or section 319(2) of the Criminal Code. This body might be composed of retired judges or lawyers with relevant knowledge and experience. When an ISP receives a complaint that does not appear to be frivolous, it would be refer the complaint to this advisory body for its opinion. If the body finds that the complaint is well-founded, and that the site includes material that breaches either section 13 or section 319(2), the ISP would then shut down the site, based on its user agreement. This process will only be effective if the ISPs establish and publicize a joint complaint line. Initially the process should be confined to hate speech that is hosted by a Canadian ISP. The use of this process to block hate speech that originates outside Canada is an issue that should be studied once the process is in operation.88
Because hate speech laws focus on extreme speech, they leave untouched expression that employs stereotypes, or makes misleading or unfair claims, about the members of an identifiable group. This speech may be insulting and offensive to minority communities and may affect their position or treatment within the larger community. It may also provide the foundation for more extreme "hate speech," particularly when it appears in the mainstream media. The familiar refrain of those who oppose the censorship of hate speech or group defamation is that the answer to bad speech should be "more speech" – hate speech should be answered, not censored. But if we are serious about the "more speech" answer, then we must think about the real opportunities individuals and groups have to participate in public discourse and respond to speech that is unfair and discriminatory. I heard from several groups that they did not wish to censor speech of this kind. Instead what they wanted was an avenue for complaint, and an opportunity to respond, when unfair and discriminatory claims were made, particularly in the mainstream media. Groups within the community should have a real opportunity to respond to expression that is not so extreme that it violates criminal or human rights laws but may nevertheless affect their position within the larger community.
To advance this end, all major print publications should belong to a provincial or regional press council that has the authority to receive a complaint that the publication has depicted an identifiable group in an unfair or discriminatory manner and, if it decides that the complaint is well-founded, to order the publication to print its decision.89 A decision by the council that its code of conduct has been breached results not in censorship but in "more speech" – the publication of a statement that the newspaper breached the code and, more particularly in this context, that it published material that unfairly represented the members of an identifiable group.
If the major publications in the country are not all willing to join a press council, then the establishment of a national press council with statutory authority and compulsory membership should once again be given serious consideration. A newspaper is not simply a private participant in public discourse; it is an important part of the public sphere where discussion about the affairs of the community takes place. As such, it carries a responsibility not to defame or stereotype identifiable groups within the Canadian community.90
6. Conclusion
I have taken the position in this report that the censorship of hate speech should be limited to speech that explicitly or implicitly threatens, justifies or advocates violence against the members of an identifiable group. However, the prohibition of this narrow category of extreme expression fits awkwardly in a human rights law that is concerned with the eradication of discrimination through education and conciliation. It is for this reason that my principal recommendation is that section 13 of the CHRA be repealed. The Criminal Code hate speech provisions, and in particular section 319(2) and section 320.1, offer an effective response to hate speech while respecting the public and constitutional commitment to freedom of expression. If section 13 is retained, however, I have proposed a series of amendments to the scope of the section, and the related complaint process, which are intended to make the hate speech ban fairer and more efficient. Censorship of expression that stereotypes or defames the members of an identifiable group is not a practical option and so we must, as a community, develop other ways to respond to this expression.
