by David Matas
B'nai Brith Canada, 1997
Republished with permission
The advent of the internet has given a new and powerful tool to hatemongers. Hate speech, because of the internet, is circulating as it never was before. 1 It is accessible to adults and children alike, at the click of a button.
Hate speech is not, like pornography, something that is obvious at first sight. Hate speech combines in a volatile cocktail two separate speech crimes, incitement to violence and fraud. It is insidious, devious. While one can say, at least for adults, that they can choose to click on to or not to click on to pornography, one cannot say the same for hate speech. Those susceptible to the messages of hate mongers are those with little appreciation of the danger of the messages.
Hate speech on the internet cannot be ignored. It represents a threat to its targets that needs to be combatted. How it should be combatted requires sensitivity to the medium that is used.
Before we even start to address the problem of hate speech on the internet, we must consider the more general boon the internet has become. The internet offers a great advantage for communication of information world wide. It is quick; it is cheap; it is accurate.
Marshall McLuhan over thirty years ago wrote: "After three thousand years of specialist explosion and increasing specialism and alienation in the technological extensions of our bodies, our world has become compressionable by dramatic reversal. As electronically contracted the globe is no more than a village." 2 What was compressionable in 1964 when those words were published, has, through the internet, become compressed. The internet has made Marshall McLuhan's global village an electronic reality.
The internet has made global freedom of expression a practical mundane fact for anyone with a computer and a phone. Today, because of the internet, anyone and everyone can disseminate their thoughts, their feelings, their research, their discoveries, their analyses, their opinions, world wide to millions at virtually no cost.
Even at this early stage, it is not too early to say that the internet is important for democracy. To take an example, look at what has just happened in Serbia. There was a direct connection between freedom of speech on the internet and the reinstatement of the municipal election results of late 1996 in Serbia which President Slobodan Milosevic tried to thwart. When protests began against Milosevic's refusal to recognize the municipal election results in the fall of 1996, the response of the authorities to those protests was to jam the signals of the radio station, Radio B92, which was broadcasting information about the protests. Eventually the authorities shut down Radio B92 completely.
Drazen Pantic of Radio B92 responded by sending audio reports of the protests over the internet, using the computer program RealAudio. The Radio B92 protest reports continued to be available to anyone on the internet, all over the world, including Serbia. Radio Free Europe used transmitters to broadcast the Radio B92 stories back to Serbia. The only way for Milosevic to shut down internet access for Radio B92 would have been for him to shut down the whole Serbian telephone system. When it became apparent to the authorities they could not stop the Radio B92 protest reports, they allowed the radio station to switch its transmitter back on. The reports of the protests and the eventual abandonment by the authorities of its censorship of B92 encouraged the protesters, added to their numbers and led to the authorities backing down from their reversal of the municipal election results. 3
Repression today means shutting down the internet. In Burma use of the internet is outlawed. So is ownership of an unregistered computer with networking capabilities or membership in an unauthorized computer club. Linking up with the rest of the world on the internet in Burma can lead to a prison sentence of seven to fifteen years. Neither of Burma's two local internet servers is available to the public. A Burmese willing to risk violation of the law to access the internet has to call an international provider. In Burma international telephone calls are billed at U.S. five dollars a minute.
There are similar restrictions in Cuba, China and Singapore. The government of Cuba allows only a few scientists and government employees to use the local internet access provider. All others have to get access through long distance calls paid for in hard currency. In China, anyone sending e-mail must register with the authorities. In Singapore, anyone downloading from the internet material of which the government disapproves is subject to huge fines. 4
The internet is an asset to democracy and the full realization of human rights. It needs to be nurtured, protected and developed.
In a general sense, human rights have to be viewed as a whole, with one overall goal, the enhancement of the dignity and worth of the individual human being. Individual human rights are the different ways in which the goal can be realized. No one human right trumps other human rights.
If one human right is considered absolute, or given priority, then other human rights, necessarily, end up taking second place. One facet of human development is thwarted so that another facet can be given free rein. Or, what often happens, the rights of some are given over-lavish attention; and the rights of others are completely trampled.
The right to be free to say what you want and the right to be free from hate speech targeted against you are two fundamental human rights that must be kept in balance. Neither is an absolute. Neither must be given priority over the other. Both are essential for the preservation of humanity. If free speech is given free rein, then the right to be protected from incitement to hatred is lost. If the right to be protected from incitement to hatred is given first priority, then the right to freedom of expression will be unduly threatened.
All this is true of speech on the internet. If human rights are to be truly protected, then there must be protection from hate speech on the internet. As well, if human rights are to be truly protected, then there must be protection for freedom of expression on the internet. At the level of principle, the issue of hate speech on the internet raises no new questions. The issues of balancing of rights, of priorities and absolutism remain.
What is new with the internet is the question of technology. Given that the internet is an important new medium for freedom of expression which deserves protection and enhancement, how is it possible to ban hate speech on the internet? We do not want to throw out the medium with the message. But can we extricate the message of hate speech from the medium of the internet, so that the medium remains, but the message of hate speech is gone?
Suggesting we should try to extricate the medium from the message understates the danger of hate on internet. As Marshall McLuhan has reminded us, in many ways the medium is the message. Electronic technology is an extension of our senses. Freedom of the individual means the freedom to hear what each person wants to hear, the freedom to read what each person wants to read as much as the freedom to say what each person want to say, the freedom to write what each person wants to write. Marshall McLuhan wrote: "Once we have surrendered our senses and nervous systems to the private manipulation of those who would benefit from taking a lease on our eyes and ears and nerves, we don't really have any rights left." 5
The existence of hate propaganda on the internet, rather than sapping our will, should mobilize it. Hate speech on the internet is not just an old threat in new clothes. It is a whole new monster.
The internet has made hate speech accessible to those who before never would have come into contact with it. It is brought hate speech to children, to the suburbs. One can say generally that those most prone to the messages of hate speech are the marginal and the alienated. It was relatively difficult, prior to the internet, for hatemongers to seek these people out. The marginal and the alienated, by their very nature, are disconnected socially and politically. There are no organizations for the marginal, clubs for the alienated, connections amongst the disconnected. The internet allows hate mongers to reach into the privacy and isolation of people's homes, to find the vulnerable, those prone to the message of hate speech, wherever they happen to be.
There are also the sheer numbers. Before the internet, hate speech was accessible to thousands, those on the mailing lists, those who called in to telephone hate lines, those who could be pamphleteered on the street or in parking lots. Now, through the internet, hate speech is accessible to millions. The random chance that those susceptible to the siren songs of hatemongers will now hear those songs has increased exponentially because of the internet.
The internet has rapidly become the medium of choice for hatemongers because of its wide access at low cost. Norman Olson, commander of the Michigan Militia Corps, one of the many extreme right wing groups using the internet, has said "Thank God for high tech." 6
The rise of the internet has coincided with a rise in hate crimes, a lowering of age for the commission of hate crimes and the existence of hate crimes where they never existed before. Hate crimes have spread to suburbia, because the internet, carrying hate speech, has spread to suburbia. The 1996 League for Human Rights of B'nai Brith Audit of anti-Semitic Incidents showed that anti-Semitic incidents have increased in Ontario's smaller communities, the bedroom suburban communities of the Greater Toronto Area. The majority of hate crimes are now committed by people under the age of twenty. 7 Isolated, opportunistic hate crimes are becoming more and more prevalent. For these crimes there are no signs of organized hate crime gangs. The only plausible explanation for these crimes is the advent of the internet.
Marshall McLuhan said: "The threat of Stalin or Hitler was external. The electric technology is within our gates, and we are numb, deaf, blind and mute" to its dangers. "I am in the position of Louis Pasteur telling doctors that their greatest enemy is quite invisible, and quite unrecognized by them." 8 "The new media and technologies by which we amplify and extend ourselves constitute huge collective surgery carried out on the social body with complete disregard for antiseptics. If the operations are needed, the inevitability of infecting the whole system during the operation has to be considered." 9 Though he was talking more generally about electronic communication, what he wrote applies eloquently to hate on the internet.
McLuhan distinguishes between hot media and cool media, hot media being those that are high definition, filled with data and cool media being those that give a meagre amount of information. 10 If we use these categories, surely the internet is a hot medium. McLuhan observes that a hot medium used in cool or nonliterate cultures has a violent effect. 11 One can say the same about the nonliterate or semiliterate individuals whom the internet reaches even where those individuals are found within generally literate cultures. The internet can be described the way McLuhan described the radio, as a medium for frenzy. 12
The battle to protect against incitement to hatred often turns into a battle between free speech advocates and human rights advocates. Free speech advocates are primarily concerned with freedom of expression. Other human rights, such as the duty to protect against hate speech, are given by free speech advocates second rank.
Human rights advocates, on the other hand, give equal weight to the right to freedom of expression and the right to freedom from incitement to hatred. Neither right ranks higher than the other. Free speech advocates will tell you that banning hate speech on the internet will not work, cannot work. They will go even further and argue that because the internet makes a mockery of hate speech prohibition laws, there is no point any more in having any such laws.
This is the point of view, for instance, of Adam Clayton Powell III, vice president for technology programs with Freedom Forum, a non partisan foundation for media education; Shabbir Safdar, co-founder of Voters Telecommunication Watch, dedicated to preserving free speech on the internet; and Stanton McCandlish, program director of the San Francisco based Electronic Frontier Foundation, which also fights for free speech on the internet. They have all argued that the internet is essentially uncontrollable.13 Jim Carroll, who wrote the Canadian Internet Handbook, said "It's like passing a law that makes mosquitoes illegal, or banning winter from Canada."14
My first reaction to this argument is that there is a certain disingenuousness about those who proclaim that the application of hate speech laws to the internet is doomed to ineffectiveness. When they make a point of saying that it cannot be done, they are, in reality, pursuing another agenda. The critics are opposed to banning hate speech on the internet, even if the banning is effective, for an altogether different reason, because this banning is, to the critics, an unjustifiable limitation on freedom of speech.
There is a legitimate, although, I believe ultimately incorrect, argument that banning hate propaganda is an undue limitation on freedom of speech. Ineffectiveness is not the only argument free speech advocates bring to this debate, although it is quite a common one.
The core concern of free speech advocates is not effectiveness. Effectiveness is, after all, a concern in all areas of the law, not just speech laws. The concern for free speech advocates, is, obviously, freedom of speech. A charge of ineffectiveness is just a weapon that is used by free speech advocates in what they see as a battle over freedom of speech.
Although I believe that the battle free speech advocates fight against hate speech laws is a wrong headed battle and that they should be defeated, the purpose of this paper is not to engage in that battle. My purpose here is just to argue that the argument of ineffectiveness drawn from the internet that free speech advocates use in this battle is not properly used. Whatever else free speech advocates say against hate speech laws, it is wrong for them to say that the internet shows us that hate speech laws cannot work.
When I say that free speech advocates are disingenuous when they charge internet hate speech laws with ineffectiveness, I do not mean to suggest that these advocates do not believe the charge. I make only the more limited point that the adversaries of internet hate speech laws are free speech advocates, not effectiveness advocates. Effectiveness in hate speech laws would not satisfy free speech advocates. And because effectiveness would not satisfy them, they are not particularly eager to find it.
Free speech advocates seize on inability, look for ineffectiveness, point to the problems the internet poses for making hate speech laws effective. Ineffectiveness in hate speech laws is, for them, a weakness in the opposing side, something to be highlighted and targeted. Free speech advocates will insist on the ineffectiveness of hate speech laws as long as it is remotely tenable to do so. And, if it ceases to be tenable, they will simply move on to other arguments, rather than abandon their opposition to hate speech laws.
So, when free speech advocates say that laws banning hate speech on the internet are doomed to ineffectiveness, their arguments should not be ignored. But they should be taken with a grain of salt. Free speech advocates do not see the possibility of effectiveness in hate speech laws, because they do not want to see it. Their blindness is, if not wilful, at least convenient. The indictment of ineffectiveness is, for them, an asset, helping them make the more general point they want to make, that there should be no hate speech laws.
It is noteworthy that the United States Supreme Court, which has been sympathetic to the free speech absolutist cause, rejected this argument of ineffectiveness. Bruce J. Ennis argued in the US Supreme Court, for a coalition of civil liberties and computer industry group, in a case challenging the constitutionality of the 1996 Communications Decency Act penalizing the display of indecent material on the internet, that the law was bound to be ineffective because over 30% of indecent material on the internet came from overseas and was beyond the reach of the law. Mr. Justice Kennedy responded from the bench: "That's a weak argument. If the United States has a public policy, it can lead the way, and maybe the rest of the world will follow." 15
For those who are genuinely undecided whether there should or should not be laws banning hate speech on the internet, the charge of ineffectiveness has to be taken seriously. But the conclusion of ineffectiveness by free speech advocates should not be taken as the final word on the issue.
This answer to the charge of ineffectiveness levied against hate speech laws, the answer that critics of hate speech laws are disingenuous, is not a complete answer to the charge. It is just a warning to be sceptical of the charge. But sceptical or not, what is our conclusion? Is it possible to have effective hate speech prohibition laws in conjunction with the internet?
A belief that the banning of hate speech on the internet is technologically impossible, that the only way to preserve the internet is to accept hate speech with it can easily lead us astray. It leads us to conclude that we should give up trying.
In a general sense, it is wrong to say that simply because something can be done, it should be done. It is also wrong to say that simply because something cannot be done, it is not worth trying. Cannot does not imply ought not.
I would argue that hate speech laws serve a value even if they are ineffective in stopping hate speech. The Criminal Code is a statement of Canadian values, the wrongs society considers most severe, the behaviour Canada condemns outright. Because hate speech is so wrong, so dangerous, we should stand against it in the most clear cut way we can, by prohibiting it in the Criminal Code.
The reality is that in human endeavours, nothing is certain. A statement of ineffectiveness is a statement about what the future will bring. However, the future in human affairs is never a passive event that just arrives. It is something that we create. If we do try to stop hate speech on the internet through every means available, including criminal prohibitions, we may or may not succeed. Of only one thing we can be sure. If we do not try, we are bound to fail. The only way we can hope to succeed is if we try. The evil of hate speech is so acute, so dangerous, that we must direct every effort to combat it. We cannot afford to be immobilized by concerns that our efforts may fail.
Hate speech on the internet is a problem. Laws prohibiting hate speech, even in this brave new technological world, remain a solution. However, laws, here as elsewhere, are not the only, or always the best solution. There is a dangerous tendency for hate speech combatants to rely on laws as the be all and end all. There is an all too ready belief that passing a law and then enforcing it resolves the problem the law was legislated to address.
However, the law is a clumsy brute instrument to achieve any social goal. The use of the law should be a last resort, when all else fails, not a first resort.
Laws are not an end in themselves, but a means to an end, the modification of behaviour. Penalizing misbehaviour, which is essentially what laws do, is not necessarily the most effective way of modifying behaviour. When faced with hate speech, which incites to hate crimes, there are remedies besides prohibition of the speech that can prevent the crimes. The remedies I have in mind here are fourteen in number: posting, computer games, withdrawal of internet services, withdrawal of telephone services, codes of conduct, approaching service providers, parental supervision, institutional supervision, access provider limitations, computer blocking programmes, agreements with users, agreements with access providers, address prerequisites and an international convention.
Posting to combat Holocaust denial is best exemplified by the Nizkor project led by Ken McVay. 16 The Anti-Defamation League of B'nai Brith Canada has a site more general in nature about combatting anti-Semitism. 17
Holocaust denial has become the lead contemporary form of hate speech against Jews. It packages together in a new guise a number of traditional anti-Semitic myths including Jewish control of the media and Jewish greed. It undercuts the most powerful contemporary arguments against Nazism and racism. Because it is fraud disguised as scholarship, it is difficult for the uninformed and the disconnected to see through it.
While Holocaust information is not the only answer to Holocaust denial, it is surely one answer. Holocaust denial on the internet can be answered by Holocaust information on the internet. That is what the Nizkor project is all about. By posting information about the Holocaust on the internet, the Nizkor project allows anyone to find out all the lies, the evasions, the distortions that permeate Holocaust denial on the internet.
A variant of internet posting is the posting of anti-hate internet games. Choices, a Winnipeg social justice coalition, has developed one such game. The game is titled "Stop the Hatred". It poses a number of questions about racism and hatred. Anti-hate answers cause a serpent on the screen to disappear piece by piece. The Canadian Human Rights Commission has posted the game on the internet. 18
Another form of non-legal response is withdrawal of services. Access to the internet requires an internet access provider. Internet access providers are commercial enterprises which are free to offer, or to decline to offer their services to whomever they want, provided they are non-discriminatory. An internet access provider is under no obligation to provide internet access to any person who uses the internet to disseminate hatred. While there is a fundamental human right to freedom of speech, there is no fundamental human right to an internet access account. Internet access providers can withdraw their services from those who are abusing the services to spread hatred, and cut off the access hate promoters have to the internet.
The same can be said for the telephone. No one can post anything on the internet without a telephone. Whether telephone companies are state owned or privately owned, they are commercial enterprises offering services to customers. Telephone companies are free to offer, or to decline to offer, their services to whomever they want, provided they too are non-discriminatory. Phone companies can refuse to provide phone lines to those who would use the internet to propagate hatred. There is no fundamental human right to a phone line.
It is not just internet users that need access to the telephone. So do internet access providers. There has been a tendency for internet hate promoters to gravitate to amenable providers. For instance, the internet access provider Fairview Technology Centre in the Okanagan Valley town of Oliver B.C. had at one time at least twelve different hate groups using its services. 19 Where internet access providers insist on providing internet access to hate promoters, despite requests that they stop, telephone companies can in turn deny services to the internet access providers.
Internet access providers and phone companies can and should have codes of conduct stating up front that they will deny their services to hate promoters. They should make it clear to everyone one of their customers that he/she is liable to be cut off if the service provided is abused to propagate hatred.
One common technique for combatting hate speech is approaching those who would provide a platform for hatemongers and asking them to withdraw the platform. If a university student organization invites a Holocaust denier to speak on campus, the League for Human Rights of B'nai Brith Canada might ask the organization to withdraw the invitation, explaining to them who the speaker is and why the invitation is inappropriate. If a hotel rents a meeting room to a neo-Nazi extremist group, the League might ask the hotel management to cancel the room rental arrangement, so that the meeting cannot take place.
There is no reason why similar techniques could not be employed with phone companies and internet access providers. Hate speech combatants can approach phone companies and internet access providers to ask them to withdraw their services from hatemongers abusing the services to spread hatred. Anti-hate speech advocates can point out the nature of the hate speech contested, the damages of hate speech, why corporate responsibility to the community means that the services should be withdrawn.
Something like that happened with Fairview Technology Centre. Sol Littman of the Simon Wiesenthal Centre asked Fairview to stop providing internet access to hatemongers. Bernard Klatt, the owner of Fairview, stonewalled, but the local cable TV company where Fairview had its offices told Fairview to get out. 20
Another non-legal answer to hate in cyberspace is parental supervision. Parental supervision is more relevant to pornography than hate speech because it may be perfectly acceptable for adults to consume pornography but totally unacceptable for children to do so. No similar distinction can be made for hate speech. The harm of incitement to hatred is not age specific. Nonetheless, because children may be more susceptible to hate speech than adults, it makes sense to ask parents to restrict their children's access to it.
Parental supervision can be done in one of two ways. One is the plain old fashioned way of keeping an eye on what children do and stopping them from doing anything that would harm themselves, including connecting through the internet to hate speech sites. That sort of parental supervision is time consuming, and for teenagers, unrealistic.
The second is computer blocking programs, programs that would block access from home computers to hate sites. There are computer programs in existence which block access to pornographic sites, with such names as Net Nanny, SurfWatch, Cyberpatrol and Cybersitter. SurfWatch blocks sites and categories its researchers consider undesirable for children. Net Nanny provides a master list of sites and categories to block, but gives parents the choice of doing the blocking. Net Nanny also has a monitoring function, to allow parents to see where children have been on the internet. 21
Many people have access to the internet through institutions, whether it be their work place, a place of study or a place of recreation. These institutions can supervise the use of the internet access they provide.
Institutional supervision often relies on blocking. The University of Manitoba, as far back as 1992, blocked access to pornographic sites for anyone using its computer network system. University Vice President Terry Falconer said he would make the sites available for researchers doing serious work. 22 The public libraries in Austin Texas and Oklahoma City have used filter programmes to block access to sex sites. The Boston public library has installed filters on computers in its children's rooms but not on computers in its adult areas. 23
Access providers do not have to provide access to everything on the internet. They can provide access to only part of what is on the internet. For instance, iStar, an Ottawa based internet access provider, in July 1996 cut off its customers' connections to thirty five child pornography news groups. 24
Blocking programmes are, however, clumsy devices. If they block only sites with specific addresses, they have to be updated almost daily as new sites proliferate. If they block sites by using keywords or categories, they have unforeseen consequences, blocking all sorts of material that would not be considered hate speech by anyone. As well, they block the computer, or the computer network, not the person. The person has only to go to another computer outside of the network with internet access or switch to another internet access provider to circumvent the blocking device.
Disputes about what is posted on the internet can potentially be resolved by arbitration rather than by laws. Internet users would agree not to post hate speech on the internet and agree to accept the rulings of an arbitrator, should anyone complain that a posting is hate speech. Complaints would be made through the internet about postings considered to be hate speech and virtual magistrates, themselves operating on the internet, would rule on whether the system operator should delete the challenged postings. The Cyberspace Law Institute of Washington D.C. has proposed such an on line arbitration mechanism. 25
However, for such a system to work those posting questionable material on the internet would have to agree not to post hate speech on the internet and agree further to abide by the arbitrator's decision on whether a contested posting is hate speech. There is unlikely to be any such agreement from hard core hate propagandists.
A variation on the proposal is to insert anti-hate speech stipulations into access contracts with subscribers. Access providers would be entitled to withdraw services from a subscriber who refused to accept the ruling of the virtual magistrate.
It may be easier to persuade access providers than to provide hate propagandists of the need to accept anti-hate speech stipulations. However, for such a stipulation to be effective, it is not enough for some access providers to accept it. All must accept it. Otherwise, a hate propagandist who has his/her subscription cancelled by one provider can simply sign on with another not part of the arbitration system.
The insertion by access providers of anti-hate speech stipulations in subscriber contracts can be made a prerequisite to access to the internet. No access provider can have access to the internet for itself and its customers without an internet address. The distribution of addresses is controlled globally by a cooperative named InterNIC and consisting of three members, Network Solutions Inc., the National Science Foundation, a United States government agency, and AT&T. InterNIC could insist that every access provider insert into its subscription contract a requirement that the internet not be used for hate speech and a commitment to accept the results of arbitration when there is a complaint that a posting is hate speech.
The notion of a global contract for the provision of a service has many precedents. It exists, for example, for airline passenger service. Global airline ticket terms were agreed internationally and are to be found in the Convention for the Unification of certain Rules Relating to International Carriage by Air signed at Warsaw 12th October 1929 and amended at the Hague on 28th September 1955.
While an international convention is not essential for there to be a uniform anti-hate speech stipulation in internet subscription contracts, it is desirable. It is unlikely that InterNIC would use its powers to control who connects to the internet to do anything related to internet content without international support. It would be arguably presumptuous for InterNIC, which is essentially American, to impose content controls on the internet without that international support. International action about the internet does not necessarily have to be restricted to agreement on enforcing anti-hate speech laws for hate on the internet. It can and should include agreement about uniform anti-hate speech terms in internet access subscription contracts.
As desirable as all these remedies are, the reality is that none of them may be available or effective. We may have to turn to prohibitory laws. These laws are essentially of three types, laws directed to software, laws directed to senders, and laws directed to conveyers.
Laws affecting software are perhaps the least technically problematic. Hate propaganda on a floppy disk or a CD-ROM is little different from hate propaganda in a book or a video. Floppy disks and CD-ROMs can be seized the same way that books or videos can be, and their distributors can be prosecuted the same way book or video distributors can be.
Internet technology is not an obstacle to prohibitions imposed directly on senders of hate through the internet, as long as the sender is physically within the jurisdiction of the law. A hate promoter in Canada operating through the internet is as much within the reach of Canadian law as a hate promoter putting pamphlets on windshields of cars. Traditional Canadian anti-speech law would be applied in the traditional way against such senders.
There is a case in progress now before a Canadian Human Rights Tribunal against Ernst Zundel for sending hate through the internet. The complaint was lodged by the City of Toronto's race relations committee and by Sabina Citron, a Holocaust survivor. The website for the contested material is in California. Zundel, however, is in Canada and is allegedly supplying the material that is being distributed through the internet. The Tribunal is to begin hearing evidence against Zundel on October 14, 1997. 26
The Canadian Human Rights Act provides that it is a discriminatory practice for a person to communicate telephonically repeatedly any matter that is likely to expose persons to hatred or contempt by reason of the fact that those persons are identifiable on the basis of a prohibited ground of discrimination. 27 A Human Rights Tribunal has the power to order discriminatory practices to cease. 28 Any Human Rights Tribunal order may be made an order of the Federal Court of Canada and is enforceable in the same manner as an order of that Court. 29 A person who ignores a finding of a Canadian Human Rights Tribunal that an internet posting is hate speech and persists in the posting can be prosecuted for contempt of court.
While having a website outside of Canada with the purveyor in Canada is a twist, it is not a completely novel twist. In another case, a Canadian using the US phone system to communicate hate speech was found to violate the Canadian Human Rights Act.
A Canadian Human Rights Tribunal ordered Canadian Liberty Net, a purveyor of taped telephonic messages alleged to be inciting hatred, to cease communicating the messages. The messages could be heard by dialing a British Columbia telephone number, registered in the name of Tony McAleer. The Canadian Liberty Net attempted to get round the prohibition by communicating its taped messages from an American telephone number in Bellingham, Washington. The Washington phone number was given out on a taped message from the British Columbia phone number. The Federal Court of Appeal found Canadian Liberty Net in contempt of court for the American messages. The Court sentenced McAleer to two days in jail and $2,500 fine. The Canadian Liberty Net got a $5,000 fine. 30
Internet sites take two forms. They are either interactive, where anyone with access to the internet can post materials to the site for all to see. Or they are controlled by the host, who determines what will be on the site for others to see. Interactive sites, newsgroups, are less problematic than host controlled sites. Hate speech news groups tend to be overwhelmed by those condemning hate speech or attempting to disprove its malicious claims. 31 Ken McVay has argued that these interactive sites should not be banned because the discussion that is carried on in them allows the naive to see how the claims of hatemongers can be refuted, how the fraud is perpetrated. 32
Hate speech host controlled sites are a different matter. Their refutation can be found only in other host controlled sites or a newsgroup. A gullible internet user may connect to a hate speech host controlled site without ever accessing its refutation.
The United States Supreme Court, when striking down the 1996 Communications Decency Act as unconstitutional because of its overbreadth, suggested more narrowly tailored legislation that might survive constitutional challenge. One suggestion was regulating some portions of the Internet such as commercial Web sites differently from others, such as chat rooms. 33
Where the host is outside of Canada, and the persons providing the material to the host are also outside Canada, then the law is severely limited in its reach. Germany has legislated against foreign internet material by penalizing those in Germany who knowingly provide a connection overseas to content that is illegal in Germany, where it is "technically possible and reasonable" to prevent it. 34 The big question is whether prevention is technically possible and reasonable.
Some forms of prevention are technically possible and reasonable. For instance, someone with an internet site in Canada can link the Canadian site with a hate speech site abroad. The link is made knowingly. Removing the link is both technically possible and reasonable. A law directed to preventing connection with foreign internet hate speech material can easily get at that sort of link.
On line services such as America On-Line or Compuserve or Prodigy combine information services with access to the internet. These on line services can control the information they themselves provide. However, the only way they or internet access providers can cut off access to objectionable material on the internet is to use blocking devices with all the limitations described earlier. If specific sites are blocked, new sites can spring up to take their place. Free speech absolutists make a point of doing just that, producing mirror sites to replicate blocked sites. If words or word groups are blocked, all sorts of unintended material is interrupted.
Penalizing global on line services has had an anti-competitive effect. In order to comply with German law, CompuServe in December 1995 cut off access to about 200 sites. Most CompuServe content going to customers everywhere came from computers in the United States in Ohio. At the time, CompuServe had no way of cutting off the material to Germany alone. CompuServe's four million customers around the world fell under the sway of the German ban. Customers outside of Germany of other on line services or access providers had no such limitations on access to the internet. 35
The most effective ban on internet hate speech would be a global ban. There are already international standards obligating states to prohibit hate speech, in the International Covenant on Civil and Political Rights 36 and the International Convention on the Elimination of All Forms of Racial Discrimination. 37 The United States, from which over 60% of the internet sites originate, has signed and ratified the International Covenant on Civil and Political Rights.
An international convention requiring states to ban hate speech on the internet should not be too hard to achieve, since it would be only a specific application of an already accepted international standard. The Government of Canada has suggested such a convention. The Honourable Herb Gray, when he was Solicitor General, said: "One solution (to hate speech on the internet) might involve some type of international convention or agreement where countries would come together to control the use of the internet." 38
Because hate speech on the internet is a global problem, it is not only necessary but fitting that the solution be global in scope. Because propagation of hatred is a violation of human rights, promotion of respect for human rights should be the work of all humanity. Lest we forget, the internet reminds us that human rights are universal. The internet makes us undertake the work of human rights at the level we should be undertaking it, on the scale of the planet.
Endnotes
1. Anti-Defamation League "Hate Group Recruitment on the Internet" Research Report, 1995; David Sitman "Propagating Anti-Semitism on the Internet", Justice, The International Association of Jewish Lawyers and Jurists, No. 12, March 1997.
2. Understanding Media: The Extensions of Man, MIT press edition, 1994, page 5.
3. Bob Schmitt "The Internet and International Politics" International Herald Tribune, April 2, 1997
4. Matthew McAllester "Net freedom at risk", The Ottawa Citizen, November 25, 1996, reprinted from Newsday
5. Understanding Media: The Extensions of Man, MIT press edition, 1994, page 68.
6. Jared Sandberg "Net Results: Some nasty creatures in Cyberspace" Globe and Mail December 13, 1994, reprinted from The Wall Street Journal.
7."Internet game fights hatred" Winnipeg Free Press March 25, 1997
8. Understanding Media: The Extensions of Man, MIT press edition, 1994, page 17.
9. At page 64.
10. Pages 22, 23
11. Pages 30, 31, 300-302.
12. At page 310.
13. Matthew McAllester "Net freedom at risk", The Ottawa Citizen, November 25, 1996, reprinted from Newsday
14. Chris Wattie, Canadian Press, "Rights groups urge Internet crackdown" Winnipeg Free Press, June 3, 1997
15. Linda Greenhouse "Justices Weigh Decency Rules For the Internet", New York Times, March 20, 1997, page A11
16. The internet address is http://www.nizkor.org/
17. At http://www.adl.org/
18. At www.chrc.ca See "Internet game fights hatred" Winnipeg Free Press March 25, 1997
19. "Internet server home to racist sites" July 13, 1996, Globe and Mail
20. "Internet server home to racist sites" July 13, 1996, Globe and Mail; "Hate literature incidents cited" Winnipeg Free Press, July 27, 1996
21. Mel Duvall "Censoring the 'Net: Software helps parents control kids' access" Calgary Herald, July 27, 1995 page D7
22. Alexandra Paul "U of M taking byte out of offensive software" Winnipeg Free Press, May 9, 1992; "Ban denounced" Winnipeg Free Press, May 15, 1992
23. Amy Harmon "To Screen or Not to Screen: Libraries Confront Internet Access" New York Times, June 23, 1997
24. Canadian Press "Pornography cutoff 'common sense'" Globe and Mail, July 13, 1997
25. Gerry Blackwell "A Jurisdiction Called Cyberspace?" March 1997 Canadian Lawyer, page 21. See also web sites http://vmag.law.vill.edu.8080/ and http://www.cybertribunal.org/
26. "Internet case against Zundel will go ahead" Winnipeg Free Press, May 28, 1997
27. Section 13(1)
28. Section 41(2)(a)
29. Section 43(1)
30. C.H.R.C. v. Canadian Liberty Net, A-848-92, January 25, 1996
31. David Sitman "Propagating Anti-Semitism on the Internet", Justice, The
International Association of Jewish Lawyers and Jurists, No. 12, March 1997 page 9
32. Quoted in Gareth Sansom "Illegal and Offensive Content on the Information Highway" Industry Canada, March 23, 1995 at page 41.
33. "Free speech and the Internet" an excerpt from the judgment reprinted in the Globe and Mail June 30, 1997
34. Tony Czuska, Associated Press, "Germany does its bit to curb 'Net" Winnipeg Free Press, July 5, 1997
35. The Economist "Lowest-common-denominator censorship" reprinted in the Globe and Mail, January 6, 1996; Associated Press "Cyberspace censored" Winnipeg Free Press, December 30. 1995
36. Article 20
37. Article 4
38. Jim Bronskill, Canadian Press, "Canada urges world pact to cut Internet hate" Winnipeg Free Press, March 28, 1995
David Matas is a Winnipeg lawyer and senior legal counsel to B'nai Brith Canada.
