A report commissioned for the Canadian Human Rights Commission says that agency should get out of the business of policing online hate and make leave it up to the criminal justice system.
However, Richard Moon, a constitutional law expert and the report's author, also recommends that media accountability be improved.
(Moon) recommends Section 13 of the Canadian Human Rights Act be repealed. The controversial section prohibits telephone or Internet communications that are deemed likely to expose members of an identifiable group to hatred or contempt.
Critics say Section 13 violates the Constitution's freedom of speech provisions. They also complain that it can cost thousands of dollars to defend against complaints -- even if an accusation proves to be unfounded.
"Censorship of expression that stereotypes or defames 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," Moon says.
He suggests the Criminal Code already contains adequate provisions to prohibit the most egregious hate speech and to empower a judge to order Internet service providers to remove hate propaganda from their systems.
Should Section 13 not be repealed, Moon says it should at least be amended to prohibit only the most extreme instances of hate messages that advocate, justify or threaten violence against members of an identifiable group.
Here is what Moon said about the media:
Moon also says mainstream newspapers and news magazines should revive moribund regional press councils where readers can pursue complaints about articles that allegedly promote hatred. If necessary, he says, government should consider creating a national press council with mandatory membership.
Debate has been raging over the authority of human rights tribunals to police hate speech since complaints were lodged against journalists Mark Steyn and Ezra Levant for allegedly exposing Muslims to hatred and contempt.
Here's the full report.
Here's the text of what Moon has to say about press councils, taken from his section on The role of non-state actors in preventing hate speech:
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
I think we could all agree that defamation and stereotyping of identifiable groups are bad things, but what objective tests of those two categories does Moon propose?
How woud this practically work? If 10 Muslims in Toronto are arrested on suspicion of plotting a terrorist act and there are 100,000 Muslims in T.O., would one be obligated to report every time that 99,990 Toronto Muslims were not charged in the investigation?
If something is factually true and important on a public policy basis but paints a given identifiable group in a less than favourable light, should it still be published?
What is a right of fair response? The Muslim complaints involved in the Maclean's imbroglio wanted a 5,000-word right of reply in the magazine plus control of the cover.
I would have been more sympathetic had they published that reply on the Canadian Islamic Congress website first. They still haven't done so (they did publish an undated paper titled Macleans Magazine: A media-propogated study of Islamphobia).
I responded at length to that paper in this Jan. 23 post: 'Attacking human rights commissions attacks us all'
Here's my concluding thoughts. I find they are still a valid distillation of my thoughts on this subject:
If someone rights truly hateful things about Muslims (or others) and veers into criminal behaviour while doing so, charge them.
If someone discriminates against a person because of their faith, that clearly is a violation of their human rights. They deserve redress.
But if someone writes something that's goofily alarmist, should that really be considered a human rights violation in a secular, democratic society where free expression is considered a fundamental freedom? I don't think so.