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Human Rights Commish Rules on Internet Hate Postings


October 1, 2005


Mark J. Freiman
Caroline Zayid

This hearing involved a complaint which alleged that an individual communicated material, or caused to communicate material, via the Internet, that was likely to expose persons of the Jewish faith to hatred or contempt. This communication is contrary to section 13 of the Canadian Human Rights Act. Section 13 was amended in recent years to specifically include Internet communication, but contains a general exclusion for owners or operators of telecommunications undertakings.

The Canadian Human Rights Tribunal issued a ruling against a Canadian man for posting anti-Semitic content on a Google newsgroup. The Tribunal held that this was a violation of the Act. Counsel for the Canadian Human Rights Commission sent a request to Google asking it to remove the offending material from its newsgroups. Although no order was ever made against Google, the Tribunal encouraged it to withdraw the material, which Google complied with.

In a related story, Canada has joined an international effort to stop Internet racism by signing the protocol against web racism. The protocol means law enforcers can pool efforts internationally to prosecute Internet racists. Canada signed the Convention on Cybercrime in November 2001 and is one of 28 nations supporting its first additional protocol.

McCarthy Tétrault Notes:

When section 13 of the Canadian Human Rights Act was enacted, it made it a discriminatory practice to ‘telephonically communicate’ hate messages.

At that time, recorded telephone messages expressing hateful views were recognized to be a form of discriminatory behaviour which should be prohibited. Section 13 was primarily aimed at that form of hate messages.

In its 2002 decision in the Zundel case, the Canadian Human Rights Tribunal held for the first time that hate messages communicated on the world wide web fell within the ambit of section 13 and constituted a ‘telephonic’ communication. The Tribunal stated that the "evidence before us inexorably leads us to the conclusion that the transmission of data or communication on the Internet operates over the telephone networks."

The evidence at that hearing amply justified the Tribunal’s conclusion. However, it was an open question as to whether technological changes in the delivery of the Internet, as well as the development of internet telephony, might result in a different conclusion in another case.

The addition of subsection (2) to section 13 applies to communication "by means of a computer or group of interconnected or related computers, including the Internet, or any similar means of communication." The extensive expert evidence heard in the Zundel case concerning the nature of the Internet was not necessary in this recent case.

The next focus of litigation may be that the ‘communication’ requirement of section 13 be made ‘repeatedly.’ In this recent case, the Tribunal relied on the fact that many prohibited messages had been communicated, as well as the nature of their posting, to satisfy the requirement. In Zundel, the Tribunal concluded that a posting on the world wide web by its nature makes ‘repeated’ communication inevitable and deliberate. Each time a posting is accessed a further communication occurs. However, there were many separate postings in that case, and the interpretation of ‘repeated’ did not receive a lot of attention. It remains to be seen whether a single posting, accessed repeatedly, will be held to be a repeated communication.