20 October 2011 – The dangers of citation

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. 

 

Much to my surprise, I received a long letter back from the Justice Department.  The text and tone of the letter didn’t surprise me all that much (I’ve written several dozen Ministerial Inquiries myself, many to people who might - also - be described as ‘cranks’), and the arguments employed did nothing to allay my concerns:

 

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//

 

Notes

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]

8 July 2011 – Mmmm, incapacitating!

Colleagues,

Bit of a shocker this week as a police officer who intervened in what seemed to be a domestic dispute ended up with a face-full of bear spray.  It seems that the perpetrator had flagged the officer down whilst chasing another man down a street in Barrie shortly before midnight Wednesday.  When the two caught the fleeing man, the first man cut loose with the chemicals.  Unfortunately for him, he hit the police officer with it.

Unfortunately for the officer, too. Bear spray is pepper spray, more or less - it just tends to come in concentrations, quantities and delivery systems less appropriate to subduing greasy hippies screaming anarchist slogans and more suited to discouraging a 500-pound ursine predator from killing and eating you. Some of the more popular commercial formulations contain relatively high percentages of the active ingredient, oleoresin capsaicin (OC to chemical weapons aficionados), and come in pressurized delivery canisters containing hundreds of grams of the concentrated pepper extract dissolved in alcohol or some other organic solvent. Instead of having dispersal mechanisms designed to dispense a fine mist of agent, bear sprays tend to have nozzles designed to hit a relatively small target up to thirty feet away. This is necessary because aggressive or hungry bears often need a lot of persuading, and unless you hit them in the eyes, nose and mouth, they probably won’t even notice the stuff until it’s too late. For you, that is.

Figure 1 - Bear Sprays and how they work

Figure 2 - Oleoresin Capsaicin: structural formula

OC, incidentally, is a magnificent empirical proof of evolutionary adaptation.  Birds do not have the molecular receptors for capsaicinoids, and thus feel no burning sensation when they ingest the peppers.  Birds also don’t have molars.  Bird feces are the primary means of spreading chilli seeds.  Mammals, by contrast, have molars, which destroy the seeds by grinding - and mammals also have capsaicinoid receptors, meaning that they feel pain from ingesting OC.  Production of OC is a defensive mechanism that evolved to deter only creatures that ingest and destroy chilli seeds, not creatures that ingest and then spread them.  It’s fascinating to note that tarantula venom also activates precisely the same pain pathways - an example (one of the only ones known) of a plant and an animal evolving separate chemical mechanisms for targeting the same mammalian vulnerability.

How hot is OC, anyway?  Well, that’s a good question.  Pain measurement is a science still in its infancy, and unlike other systems of measurement, there is no precise objective scale; pain, in other words, is a subjective experience, and is different for everyone.  The piquance of chili peppers is measured on the Scoville Scale, using Scoville units (SHU).  The scale is 99 years old this year, having been invented by Wilbur Scoville in 1912, although modern measurements, using concentrated pepper extract dissolved in organic solvents in liquid chromatography, have come a long way since the days of laudanum and radium pills.  Scoville’s original method was entirely subjective; capsaicin oil from various different peppers was dissolved in alcohol and the strength of solution gradually increased until heat was detectable orally by a panel of five tasters.  The dilution ratio at which heat is first detected is the Scoville rating.  Using this system, sweet or Bell Peppers have no measurable piquancy at all (and thus a Scoville rating of zero), while the hottest of commercially cultivated peppers, like Habaneros or Scotch Bonnets, have a rating of around 200,000.  In other words, the capsaicin oil that these peppers produce must be diluted by a factor of 200,000 before their heat becomes undetectable by humans.

Figure 3 - Red Savina Habanero pepper (ripe)

The hottest naturally occurring capsaicin oils are produced by the Red Savina Habanero pepper, which has a Scoville rating of about 580,000.  Pepper spray, however, uses either concentrated extracted capsaicins from the hottest peppers available, or synthetically-produced capsaicinoids.  Here’s a comparison.

·         Banana peppers: 100-500 SHU

·         Jalapeno peppers: 3,000 - 6,000 SHU

·         Habanero peppers: 100,000 - 350,000 SHU

·         Red Savina habanero peppers: 350,000 - 580,000 SHU

For those who want to kick it up a notch and meet the Space Coyote, there’s the Naga Viper, the Naga Jolokia or Ghost Chili, the Trinidad Scorpion Butch T, and the appropriately named Infinity Pepper, all of which clock in at 855,000 to 1,463,700 SHU.  Chilly Chillies, a specialty hot stuff company which used to have a shop on Sussex Street in Ottawa in front of the US Embassy, used to sell concentrated Infinity Pepper oil in a small glass phial with a wax-sealed stopper shaped like a skull.  You had to sign a waiver to buy it.  My eyes started watering every time I went in there.

Beyond this point we cross into the realm of law enforcement-grade pepper spray - pure, concentrated capsaicin oil either extracted from the hottest natural chillies, or produced in laboratories by organic synthesis.  Pure OC comes in at around 5,000,000 on the Scoville scale.  One cup of this stuff dissolved in an Olympic-sized swimming pool of alcohol would still be detectable.  From the point of view of getting a face-full of highly concentrated OC, the difference between natural Habaneros and cop-quality Pepper Spray is like the difference between a 5 kt or 5 Mt explosion - it doesn’t really matter how big the bomb is if you’re at ground zero.  Where it does matter is when you’re hosing down a crowd, because even the slightest hint of mist from a dispenser putting out 5,000,000 SHU spray will be enough to temporarily incapacitate whoever’s on the receiving end, whether it’s some angsty teenage anarchist with an iPhone, an iPod, an iPad, an autographed copy of Naomi Klein’s NoLogo in his designer backpack, Nikes on his feet, and a "Down With Capitalism" sign scrawled in orange Highlighter on a Wal-Mart box...or an angry bear looking to score lunch.

Speaking of the NoLogo crowd, if you’re planning on crashing the next G8 summit, you should know that, like CS, OC isn’t soluble in water and can’t be washed off no matter how hard you try.  Rubbing affected areas merely pushes the oil into the skin, prolonging the discomfort.  Anarchist groups have circulated recipes for home-made “pepper spray decontaminant” (including ingredients like Maalox, lidocaine gel and milk) but none of these really work.  Ambulance attendants report that washing affected individuals with baby shampoo seems to work well - but in fact any soap would work against the oil, and baby shampoo simply has the virtue of being low-irritant on areas most likely affected by OC, like the eyes and other mucous membranes (Johnson and Johnson’s “No More Tears” might be a good bet).  Unlike CS, OC isn’t deactivated by sodium metabisulfite - but unless you’re a passionate home wine-maker, you probably don’t have any of that around the house anyway.

Putting on my CWC-bore hat for a minute, it’s worth noting that OC, like CS (“tear gas”) isn’t on the Schedules of Chemicals and thus isn’t “controlled” per se by the Chemical Weapons Convention.  However, like CS, it does meet the definition of a “riot control agent” (RCA) under paragraph 7 of Article II (“Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure”), and thus is subject to declaration requirements under Article III, paragraph 1(e) of which requires each State Party, “with respect to Riot Control Agents”, to “specify the chemical name, structural formula and Chemical Abstracts Service (CAS) registry number, if assigned, of each chemical it holds for riot control purposes.”

Which introduces something of a conundrum.  You see, this declaration requirement does not include RCA held for “law enforcement purposes”, and the language in the “purposes not prohibited” definition (paragraph 9 of Article II) refers to “law enforcement, including domestic riot control purposes” as a “purpose not prohibited”.  In other words, the Convention text specifically contemplates “domestic riot control” as a subset rather than the totality of “law enforcement” (this was done to allow member states to continue to use chemicals for judicial execution), which means that there is the acknowledged possibility that States Parties may use OC, CS and other RCA for “law enforcement” purposes other than “domestic riot control”.  One example would be, subduing unruly arrestees.  The declaration requirement also does not include “military training purposes”; and since the Canadian Forces (to take one example) do not have “riot control” as a specific defence task, technically speaking we do not have to declare any of the tear gas or other RCA we hold (e.g., OC held by the MPs, or bear spray held by range control authorities at rural military bases), so long as we don’t use it, or intend to use it, as a “method of warfare”, which is prohibited under paragraph 5 of Article 1.

Of course, none of this means you can blast a cop in the face with bear spray and just walk away.  The fellow in the story cited above has been charged with possession of a dangerous weapon and (surprise, surprise!) breach of probation.  All of which, to paraphrase a former giant of Canadian politics, means that the best place for pepper is probably on your plate.

Piquantly yours,

//Don//