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Part IV: Hate on the Internet
The Internet is a powerful tool for building communities of like-minded individuals. It was not surprising, therefore, that hate-mongers quickly adapted to it. Where once people handed out hate literature on a street corner, now they can hand it out on the electronic corners of the Internet.
Before the coming of the Internet, Mr. Ernst Zundel, operating from Toronto, was recognized as one of the most prolific publishers of hate propaganda in the world. Mr. Zundel quickly adapted to the Internet and by the mid-1990s had established the Zundelsite. The electronic super highway had made the telephone answering machine obsolete.
Those opposed to Mr. Zundel’s activities soon considered whether section 13 might be an effective way to deal with the new Internet form of hate messages just as it had been used earlier to deal with Mr. Taylor’s hate line. At the time, most personal Internet connections were made via a telephone line. Consequently, it was argued that the Internet was a form of repeated telephonic communication and therefore subject to the CHRA’s hate message provision.
In January 2002, the Tribunal ruled that section 13 covered the Internet and that the material posted by Mr. Zundel44 was hate within the meaning of section 13. The Tribunal ordered him to cease and desist from distributing the prohibited messages.45 Just prior to the Tribunal rendering its decision, in December 2001, Parliament amended the CHRA to specify that section 13 included messages transmitted via the Internet.46 This brought section 13 into the Internet age.
The 2001 amendment was a logical extension of the law to deal with evolving technology. However, it must be acknowledged that the Internet is very different from a telephone answering machine. This reality has had a significant impact on both how section 13 is applied and how it is perceived.
By its nature, a telephone answering machine is easy to find. It is a physical thing that can be unplugged. Its owner can be readily identified. There are likely to be few "hate lines" operating at any one time.
The Internet, however, is borderless and ever changing. Material posted on a website originating in Canada can quickly be mirrored on other websites around the world. A website hosted today in Canada can be moved outside Canadian jurisdiction tomorrow.
The Internet has enabled the convergence of many types of expression. Blogs, websites, TV, radio, newspapers, magazines, books and music are all now readily available via the Internet. At relatively low cost, anyone can become a publisher, a broadcaster and a maker of opinion — a participant in the new electronic town square.
Convergence has widened the ambit of section 13. Where once the section targeted a specific and discrete type of activity, it now encompasses more. Printed material is a good example. Section 13 does not apply to printed publications. However, if a print article is placed on the Internet it then becomes subject to the Commission’s jurisdiction.
The inclusion of the Internet under section 13 has resulted in a recent case relating to mainstream media — Canadian Islamic Congress (CIC) v. Rogers Communications. The CIC filed a complaint alleging that an article written by Mark Steyn, and which appeared in the online edition of Maclean’s magazine, exposed members of the Muslim community to hatred and contempt pursuant to section 13. The Commission dealt with the case as required by law and determined that, although some aspects of the article in question were strongly worded, polemical, colourful and calculated to excite discussion, they did not meet the threshold of hate and contempt as determined by the Supreme Court in Taylor. The Commission dismissed the complaint and concluded that a hearing by the Tribunal was not warranted.47 The Commission fulfilled its legislative mandate in receiving, processing and making a decision on the complaint; however, the mere fact that the Commission accepted the complaint in the first place subjected the Commission to criticism by many who misunderstood the Commission’s role.
Some have argued that exposing mainstream media organizations to possible Commission complaints is inconsistent with Canada’s commitment to freedom of the press that is expressly protected in section 2(b) of the Charter as a vital aspect of freedom of expression. However, as is clear from the preceding discussion, freedom of the press is not an absolute value and cannot be exercised in isolation from other rights and freedoms. The rule of law applies to all.
44. Mr. Zundel moved to the United States before the Tribunal decision could be enforced. However, subsequently he was deported back to Canada as a result of an immigration violation. Canada in turn deported him to his country of citizenship, Germany, after it was determined that his presence in Canada constituted a risk to the security of Canada. He is currently serving a prison term in Germany resulting from a conviction under German law that makes it a criminal offence to deny the Holocaust.
45. Citron v. Zundel, Canadian Human Rights Tribunal (2002).
46. This amendment followed a recommendation from the Canadian Human Rights Act Review Panel, chaired by former Supreme Court Justice Gérard La Forest.
47. The same complaint was also dismissed by the Ontario Human Rights Commission for lack of jurisdiction and by the British Columbia Human Rights Tribunal after a hearing.
