Electronic Frontier Canada (EFC), Canada's premier organization devoted to the protection of freedom of expression in cyberspace, is opposed to the Canadian Human Rights Commission's current attempt to control the flow of information on the Internet.
In a series of hearings that began in Toronto on October 14th, a Human Rights Tribunal will attempt to decide if a California web site spreading Ernst Zundel's hateful messages is a discriminatory practice that falls under the jurisdiction and within the scope of the Canadian Human Rights Act.
EFC's opposition to the Commission's agenda should not be interpreted as support for Zundel. Like the vast majority of Canadians, EFC finds Zundel's anti-Semitic views ludicrous, grotesque, and offensive. However, in the words of Oliver Wendell Holmes, EFC believes that free speech means "freedom for the thought that we hate."
EFC believes the expression of controversial opinions, no matter how erroneous or repugnant, should be protected from government censorship by the Charter of Rights and Freedoms.
"Of course, this doesn't mean that all speech is protected," says David Jones, EFC's president and a professor of computer science at McMaster University. "The Charter does not, for example, protect fraud, libel, or death threats, whether over the Internet or not."
"Expressions of opinion, and even claiming that the Holocaust is a hoax," adds EFC vice-president Jeffrey Shallit, "should be protected." EFC favours the repeal of all Canadian laws restricting hate speech.
"Laws intended to restrict 'bad' speech are often too broadly written, and have the potential to restrict genuine debate," explains Shallit, who is a computer science professor at the University of Waterloo. "Let's not forget that the Communications Decency Act was recently found to be unconstitutional by the U.S. Supreme Court," he says, "in part because it did not distinguish between 'obscene' speech and speech that was merely 'indecent'."
"I'm sure if the Commission thought it could prove that the Zundelsite fell within the legal definition of 'hate propaganda', as defined in sections 319 and 320 of the Criminal Code," says Jones, "then this would be a criminal proceedings."
"Instead," continues Jones, "the worst this Tribunal can decide is that publishing the web site is a 'discriminatory practice' under the Canadian Human Rights Act, that 'exposes people to hatred or contempt'." "It's a broader and more flexible legal concept, and the standard of proof is not as rigourous because the penalty that can be imposed is less severe."
"But on the other hand," says Jones, "if the Tribunal issues a cease-and-desist order and the web pages do not go away, Zundel might be jailed for contempt."
"I question whether it is a distortion of the judicial process, considering the eventual outcome may be the same, to allow the Commission to attempt to do through the back door what they could not possibly hope to achieve through the front door," says Jones.
"This is not about technology, not about jurisdiction, not about regulating the Internet, and not about setting legal precedents," asserted Bernie Farber of the Canadian Jewish Congress during a recently televised debate on CBC Newsworld. "This is about punishing Ernst Zundel," he said.
"I'm sure some people would like to skip the hearing and go straight to the punishment," says Jones, "but the details really do matter in this case. This hearing is all about whether a government department can re-interpret an old law to give itself sweeping new regulatory powers over the Internet."
Section 13(1) of the Canadian Human Rights Act was introduced by Parliament to control hateful messages on telephone answering machines. "It is too crude an analogy to suggest that a collection of Internet web pages is the same thing as an answering machine," says Jones. "The whole context and inter-connectedness of the web and the way people interact with and navigate through the medium are different in important and significant ways."
"If Canadians want content on the Internet to be controlled by the government, then what we need is a broad national debate to decide where we want to draw the line," suggests Shallit. "Dusting off old pieces of legislation and misapplying them to this new communication medium is not the way for Canadians to step into the 21st century."
EFC acknowledges that Canadians need effective strategies for dealing with controversial or hateful speech, but EFC's position is that the proper remedy for racist speech is not less speech, but more speech.
EFC gives high praise to hard-working community organizations like Ken McVay's Nizkor Project, which maintains a huge electronic archive of material devoted to preserving the history of the Holocaust and dedicated to the memory of all who died at the hands of the Nazis.
"Instead of banishing the hatemongers to the shadows, or making them martyrs by giving them an expensive show trial," says Shallit, "the Nizkor Project shines the intense light of public scrutiny on people like Zundel and exposes their deceptive messages for what they are - warts and all. It is an approach that really works."
Another notable web site, run by the McGill Hillel student organization to support the Jewish student community, provides one of the most extensive lists of hyperlinks to hate web sites ever compiled. Their purpose, of course, is not to promote hatred, but to educate people about its enduring presence in society.
"Electronic Frontier Canada is pleased to announce donations to both the Nizkor Project and McGill Hillel Student Centre," said EFC president David Jones, "to encourage them to continue their efforts in dealing with hateful content on the Internet. In our view, theirs is the only approach that has had any significant success."
"At the end of the day," says Jones, "no matter what the Tribunal decides, the Canadian government cannot possibly hope to control the flow of information on the Net."
"Sure, they can go ahead and lock Zundel behind bars, if they decide the law allows it," concedes Jones, "but once the information is on the Net, it's not going to disappear."
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