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” 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:
 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.
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.