NOTE: As of today, 5 September 2012, Bill C 51 had not progressed beyond introduction and first reading in the House of Commons. The government has not reintroduced it.
Colleagues,
According to a ruling issued yesterday, the Supreme Court says it’s
okay to use footnotes, but not citations.
...yeah, maybe I should back up a little. Back in the last
session of the 40th Parliament (the one that ended on 26 March 2011), the
government introduced Bill C-51, entitled “An Act to amend the Criminal Code,
the Competition Act and the Mutual Legal Assistance in Criminal Matters Act”.
The short title of this bill was the “Investigative Powers for the 21st Century
Act”.[Note A] Obviously, it died on the order paper when Parliament was
dissolved.
One of the controversial aspects of the bill was that Clause 5 would
have altered the Section 319(7) of the Criminal Code. This part of the Criminal
Code deals with hate speech and hate propaganda. At present, Section
319(7) contains definitions applicable to this section of the Code, and
includes the following language:
“communicating”
« communiquer »
“communicating” includes
communicating by telephone, broadcasting or other audible or visible
means;[Note B]
Clause 5 of Bill C-51 proposed changing this definition to the
following:
5. The
definition “communicating” in subsection 319(7) of the Act is replaced by the
following:
“communicating”
means communicating by any means and includes making available;
[Note A]
This, I think you’ll agree, significantly alters the definition of “communication”
as it currently stands. The lawyers who prepared the legislative summary
of the Bill for the Library of Parliament thought so, too. In reviewing
the Bill, they had this to say about Clause 5:
Clause 5
of the bill provides that the offences of public incitement of hatred and
wilful promotion of hatred may be committed by any means of communication and
include making hate material available, by creating a hyperlink that directs
web surfers to a website where hate material is posted, for example. [Note C]
There is a significant difference between publishing hate speech in a
book or on a website, and merely calling attention to the existence of hate
speech through use of a footnote. Back in August, I wrote a letter
to the Minister of Justice - in my capacity as a private citizen,
naturally - to express my discomfort with legislation that equates
what amounts to a footnote with full-throated approval.
A hyperlink
is not approval, it is not “dissemination”, and it is most certainly not “making
something available”. It is a citation, pure and simple. Under the
proposed legislation, if I were to hyperlink to a website that does promote
hatred in order to indicate my disapproval thereof, I would be guilty
of an offence. More insidiously, if I were to link to a website that
someone were to subsequently object to for any reason whatsoever, I
would also be guilty of an offence.
Clause 5
proposed to update this definition to state that communicating means
communicating by any means and includes making available. While it is
true that providing a hyperlink would fall under this definition in certain
circumstances—as it would under the current definition of communicating in
subsection 319(7)—providing a hyperlink alone is not enough to commit
either of these two hate propaganda offences. As the previous paragraph
shows, many other elements must be proven before a person can be found
guilty. The amendment merely described the manner in which a prohibited
statement could have been made. It would not have determined whether a
statement was of a prohibited nature, or whether a communicator had the
necessary guilty mind to commit the offence. The necessity to prove
beyond a reasonable doubt the existence of a guilty mind for these crimes is an
important safeguard that protects freedom of expression. For example, in
the case of R. v. Keegstra, the Supreme Court of Canada held that the
crime of “wilfully” promoting hatred against an identifiable group means “intentionally”
promoting hatred. This excludes the reckless or negligent promotion of
hatred from the scope of this crime. These stringent requirements already
exist in the Criminal Code and would not have been changed by the
amendments proposed in former Bill C-51.
It is also
worth noting that the crime of wilfully promoting hatred against an
identifiable group contains several defences found in subsection 319(3) of
the Criminal Code, which further limit the scope of this crime.
For instance, the fact that a statement is true is a defence. So too is
the communication of statements that are relevant to any subject of public
interest, the discussion of which is for the public benefit, where the person
reasonably believed them to be true. None of the defences would have been
affected by the amendments proposed in former Bill C-51.
There are a number of things about this response that should ring alarm
bells. First, if the current definition of ‘communicating’ in subsection
319(7) would capture hyperlinks (presumably under the definition of ‘visible
means’), then why was it deemed necessary to update it at all? Second,
and more importantly, the legal defences against a charge of hate speech -
whether a statement was of a prohibited nature, whether it is true, and whether
a ‘communicator had the necessary guilty mind’ - are all matters that can only
be elicited in the course of a trial. In other words, the
presumption of the legislation is that the ‘truth will out’ during the
prosecutorial process, and that only someone who is proven beyond a reasonable
doubt to have “wilfully” or “intentionally” promoted hatred will be
convicted. Maybe that’s true – but it’s irrelevant. As folks like Ezra Levant and Mark Steyn can
attest, even if you are ultimately acquitted, the process is the
punishment. It cost Ezra more than $100,000 to be acquitted after having
been the subject of a frivolous and vexatious complaint of hate speech.
Consider openly anti-Semitic speech for a moment. What
is the substantive difference between a footnote citing Mein Kampf or the Koran, and a hyperlink that ‘makes
available’ the same grossly objectionable material? Both books are available in on-line text format from Project Gutenberg. From a pragmatic
perspective, providing a URL is certainly more convenient to the reader, as it allows
him to check references with the click of a mouse button rather than a trip to
the library. But neither a footnote nor a hyperlink necessarily
imputes approbation or even concurrence on the part of the author. Bill
C-51 would make it a crime, for example, to provide a hyperlink to
Deuteronomy 25:17-18, because the text incites the reader to violence against
an identifiable group, the Amalekites; it encourages the Israelites to “blot
out the remembrance of Amalek from under heaven.”[Note D] Is citing the Bible (or the Torah) really
hate speech? I use this example
deliberately, because “Amalekite” has resurfaced in the past century in some
extremist rhetoric in connection with everyone from Zionists to Nazis to
Palestinians, in circumstances that, under Canadian law, would doubtless be
considered hate speech – but does this mean we can’t cite the Bible?
Needless to say, an overly strict interpretation of what constitutes “publishing”
hate speech would be a problem for professional academics. How, for
example, could one of us write an analytical report on Islamic extremism if it
were an offence to footnote the source material necessary to provide scholarly
support to our analysis? How could we write about some of the more
pernicious aspects of Soviet Russia, or Nazi Germany, or Communist China, if we
had to worry about citing references that could potentially be deemed as being “hateful”
with respect to an “identifiable group”?
Well, this is where the Supreme Court comes in. Yesterday, the
SCC issued its decision in Crookes v.
Newton, a case that bears directly on the question of what references,
especially hyperlinks, are, and what their status is in legal
terms. Basically what happened is that the respondent, Newton, owned
a website that discussed, amongst other things, free speech and the
internet. On his website were a number of hyperlinks, including two that
linked to articles elsewhere on the internet that Crookes alleged were
defamatory. Crookes sued not the original author who wrote and posted the
allegedly defamatory articles, but Newton, for “making available” defamatory
statements, arguing that creating hyperlinks to the articles amounted to “publishing”
the defamatory content.
The original trial judge dismissed the complaint, concluding that
hyperlinks are analogous to footnotes, and that merely referring to defamatory
material without repeating it does not constitute publication. A majority
of the appellate court upheld the trial judge’s ruling. And the Supreme
Court dismissed the appeal…but the arguments advanced by the Court in doing so
were not entirely comforting.
The majority decision was written by Justice Abella, with concurrence
of five other members; the remaining members provided amplifying remarks.
The summary of the majority decision is as follows. I’ve taken the liberty of highlighting
relevant passages.
To prove the publication
element of defamation, a plaintiff must establish that the defendant has, by
any act, conveyed defamatory meaning to a single third party who has received
it. Traditionally, the form the defendant’s act takes and the manner in
which it assists in causing the defamatory content to reach the third party are
irrelevant. Applying
this traditional rule to hyperlinks, however, would have the effect of creating
a presumption of liability for all hyperlinkers. This
would seriously restrict the flow of information on the Internet and, as a
result, freedom of expression.
Hyperlinks are, in essence,
references, which are fundamentally different from other acts of “publication”.
Hyperlinks and references both communicate that something exists, but do not,
by themselves, communicate its content. They both require some act on the
part of a third party before he or she gains access to the content. The
fact that access to that content is far easier with hyperlinks than with
footnotes does not change the reality that a hyperlink, by itself, is content
neutral. Furthermore, inserting a hyperlink into a text gives the author
no control over the content in the secondary article to which he or she has
linked.
A hyperlink, by itself,
should never be seen as “publication” of the content to which it refers. When a person follows a hyperlink
to a secondary source that contains defamatory words, the actual creator or
poster of the defamatory words in the secondary material is the person who is
publishing the libel. Only when a hyperlinker presents content from the
hyperlinked material in a way that actually repeats the defamatory content,
should that content be considered to be “published” by the hyperlinker.
Here, nothing on N’s page
is itself alleged to be defamatory. Since the use of a hyperlink cannot,
by itself, amount to publication even if the hyperlink is followed and the
defamatory content is accessed, N has not published the defamatory content and
C’s action cannot succeed.[Note E]
I’m sure you’ve spotted the Trojan Horse in this argument. In
paragraph three of the summary, the Justices argue that if a hyperlinker “presents
content from the hyperlinked material in a way that actually repeats the
defamatory content”, this should considered “publication”. In the text of
the decision, the explanatory paragraph reads as follows:
[42] Making reference to the existence and/or
location of content by hyperlink or otherwise, without more, is not publication
of that content. Only when a hyperlinker presents content from the
hyperlinked material in a way that actually repeats the defamatory content,
should that content be considered to be “published” by the hyperlinker...[Note
E]
This is, in my view, extremely problematic. It means that
while you can provide a footnote to potentially objectionable material, you
cannot cite that material in your own papers without making yourself liable to
a charge of defamation (or hate speech). In other words, you
could write “Hitler, in Mein Kampf,
accused Jews in vile terms of using adverse societal conditions to advance a
social democratic agenda”, and then provide a hyperlink to the text (for
example, at Project Gutenberg); but according to the Court’s interpretation, no
matter how disapprovingly you do so, you could not cite the actual relevant
passage (“A cold shiver ran down my spine when I first ascertained that it was
the same kind of cold-blooded, thick-skinned and shameless Jew who showed his
consummate skill in conducting that revolting exploitation of the dregs of the
big city.” [Note F]) without making yourself liable to a charge of “publishing”
hate speech. Indeed, according to Bill C-51 and the Supreme Court’s
interpretation of what “publication” means, arguably, by citing that passage, I’m guilty of contravening the Criminal Code. I'm equally guilty for citing Deuteronomy's rabid hatred against the Amalekites.
So according to the SCC, footnotes are not “publication”,
but citations are.
Is this really what the Criminal Code’s provisions against hate speech
are supposed to be about? How in heaven’s name are we supposed to be able
to conduct research and analysis into the darkest and most repellent corners of
the human spirit without holding the bile and venom of those who seek to
destroy us up to examination? Whatever happened to “sunlight is the best
disinfectant”? Sure, there’s obviously no “intent” in my message to
communicate, publish, or otherwise convey “hate speech” - but according to the
SCC decision in Crookes v. Newton and
the legislative changes proposed in Bill C-51, if someone were to complain
about that citation, the only way for me to prove that my intent
is academic rather than pernicious would be via a trial that could cost me a
hundred grand and more in legal fees. All it would take would be a complaint.
Is this the future of scholarship - one where academics seeking to
practice their profession in good faith must face a choice between courting
calumny and financial ruin, and deliberately eschewing any subject that might
potentially attract an allegation that an “identifiable group” has been
defamed? Is restricting our work to bland, inoffensive, irrelevant
subjects and publications the only way for us to succeed in an environment
of institutionalized hypersensitivity?
And are these stupid questions in a country where our “fundamental
freedoms”, including freedom of speech, are described in section 2 of the
Charter, while the government’s right to impose “reasonable limits” on those
freedoms is described before them, in Section 1?
Anyhow, the government plans to reintroduce Bill C-51 in the current
session of Parliament. Anybody working on a subject where your research
is likely to lead you to hard truths about an “identifiable group” might be
well advised to think hard before you cite those hard truths in your
text. It might be safer to simply refer to them in an innocuous, noncommittal and pathetically content-free footnote. That's the safest course to take in today's hypersensitive Canada.
Cheers,
//Don//
A) [http://www.parl.gc.ca/HousePublications/Publication.aspx?Docid=4745885&file=4]
B) [http://laws-lois.justice.gc.ca/eng/acts/C-46/page-137.html]
C) [http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?source= library_prb&ls=C51&Parl=40&Ses=3&Language=E&Mode=1#a8]
D) [http://www.biblegateway.com/passage/?search=Deuteronomy+25&version=NKJV] Note: according to the Ministry of Justice, providing this link would constitute a violation of the Criminal Code provisions against hate speech as amended by Bill C-51 because the material at the other end of the link incites hatred against Amalekites. Be warned.
E) [http://scc.lexum.org/en/2011/2011scc47/2011scc47.html]
F) [http://gutenberg.net.au/ebooks02/0200601.txt]
