Regulating Internet Platforms to Limit Hate Speech Could Impact Free Speech: Constitutional Lawyer

By Shane Miller
Shane Miller
Shane Miller
Shane Miller is a political writer based in Ontario.
September 15, 2020Updated: September 16, 2020

Ahead of the prime minister’s throne speech set to take place on Sept. 23, a constitutional lawyer says some of the government’s plans to regulate online content and hate speech could threaten legitimate free speech.

On Sept. 6, Heritage Minister Steven Guilbeault revisited the idea of regulating social media in an interview with Global’s The West Block, stating that platforms like Facebook and Twitter “can’t regulate themselves” and that the Liberal cabinet would soon put forward new legislation to address the problem.

One aim of such regulation is to combat hate speech and disinformation online as well as child pornography and incitement to terrorism, Guilbeault said.

“We have free speech in our society, but people can’t say everything. You can’t verbally abuse someone,” he said, while noting that the move is not about putting “an end to free speech on the internet.”

But Jay Cameron, the litigation manager at the Justice Centre for Constitutional Freedoms, sees much to be concerned about regarding the government’s plans in relation to free speech.

“The Charter [of Rights and Freedoms] says the right to have your own thoughts, beliefs, opinions, and to express them is ‘fundamental,’ meaning that this right is of paramount and foundational importance in a free and democratic society,” he said in an interview.

“The Liberal-run government has consistently set itself to do an end run around section 2(b) of the Charter and attempt to infringe it in a variety of ways.”

One of the focuses is the control of “so-called hate,” Cameron says, but at the same time the government has failed to provide a clear definition of what hate is.

“You start digging and you find out what they mean by ‘hate’ is often entirely legal speech that is disagreeable to—usually progressive—orthodoxies,” he says.

“They can’t legally censor it currently because it is not illegal speech, so they want to create a new censorship mechanism to give themselves more power.”

The government is also entertaining the idea of reviving Section 13 of the Canadian Human Rights Act, a controversial law that was repealed in 2013 as a result of widespread concern over the threat it posed to free speech due to its broad language.

Section 13 declared it to be a discriminatory practice for people to communicate through telephone or the internet anything that would expose someone to “hatred or contempt” if that person was “identifiable on a basis of a prohibited ground of discrimination.”

In the wake of mass killings such as that in Christchurch, New Zealand, in which online hate has been said to have played a role, a Liberal-dominated House of Commons committee recommended that the government start consultations to revive Section 13 and amend it to target hate speech spread through social media

Justice Minister David Lametti said in June 2019 that “the limits of free speech, justifiable limits of free speech, is something that any government should be looking into—as the prime minister did when he was in Paris and looked at the Christchurch declaration.”

Lametti’s office said in an email that the government “is committed to confronting the problem of online hate, which has become all too common for a growing number of Canadians, including marginalized and racialized individuals and communities.”

The work is at the initial consultation stage, the email said, and includes “ensuring that Canadians’ rights are protected.”

Cameron notes that Section 319 of the Criminal Code already prohibits hate speech. The biggest problem with reviving Section 13, he says, is that it has none of the checks and balances Section 319 requires when it comes to prosecuting hate speech, such as having the attorney general sign off on a prosecution, nor any of the “rigorous defences” that are outlined in Section 319.

“Section 13 has no such defences, and no approval is required from the attorney general for a prosecution,” Cameron says.

“In this sense, it is a very draconian law that is tailor-made to censor and punish legal expression that bureaucrats and some politicians and their supporters do not like. It is a profoundly oppressive law which sounds sort of well-intentioned until you start to study its implications.

“What is often termed ‘hate’ today is not hate at all, but rather disagreement. And you have a constitutional right to disagree and to express disagreement.”

Guilbeault declined to comment for this article.