Online Hate and Free Speech

It is not always easy to discern when hateful content on the Internet crosses the line from being offensive to illegal. The line between hate speech and free speech is a thin one, and different countries have different levels of tolerance. The line is even thinner in digital environments where hateful comments posted lawfully in one country can be read in other countries where they may be deemed unlawful.

Hate in a Free Speech Environment

Many argue that the best response to hate speech is not criminalization, but more speech. A classic example of this took place during the 1990s when Canadian Ken McVay, founder of the anti-hate Nizkor Project, spent over a decade attempting to engage hate activist and Holocaust denier Ernst Zundel in an online discussion. McVay claimed that the Zundelsite refused “to participate in the interactive forums of the Internet” by avoiding discourse with those who disagreed with its views in favour of spreading hate and recruiting supporters. (The website now includes online forums, although it has since come to symbolize other tensions and challenges relating to free speech and hate on the Internet.)

Despite McVay’s appeal for the need for public debate, the free speech environment that characterized discussion forums in the late 1980s and early 1990s made many Internet service providers (ISPs) uncomfortable. CompuServe was one of the first ISPs to be confronted with a vigorous debate about hate, when a Holocaust revisionist began to pepper an online discussion with racist comments. The forum soon became one of the most frequently visited on CompuServe, but the discussion ended when CompuServe created an acceptable use policy which prohibited people from posting racist or offensive comments. It is now standard practice for ISPs to require online users to adhere to acceptable use policies. [1]

To avoid this issue altogether, as well as limit interaction with those who might challenge their world view, some hate groups have rejected social media in favour of less interactive environments, such as informative websites which do not allow for critical debate. At the same time, others have embraced social media such as Facebook and YouTube, valuing their ability to quickly and inexpensively reach and recruit new members over the potential for disagreements that may arise.

A more complex aspect relating to free speech and the Internet is differing standards for online speech from country to country and how this impacts the law enforcement of a global medium. For example, a landmark Canadian Human Rights Commission decision in 2002 ruled that Ernst Zundel must cease and desist publishing hate material on his website. This was an important decision in that it affirmed that the Commission had the right to receive complaints and make decisions about hate material on the Internet, as well as in telephone communications. However, because this site was hosted in the United States the ruling could not be enforced.

Another challenge relates to acts of hate in online environments hosted by minority groups. New media has facilitated the networking of diverse groups of people that, by definition, would meet many of the law’s traditional criteria for protection from hate speech [2], but deciding whether or not a particular group has been subjected to criminal hate speech can be challenging.

For example, in Canada, if anti-Semitic hackers access a synagogue’s website and post images of swastikas, would the ‘virtual synagogue’ be considered subject to laws prohibiting the defamation of places of worship, or would the virtual context render the law inapplicable? It is clear that a re-examination of hate speech laws, one which takes into consideration new media, is required.

Free Speech: A Worldview

A growing number of countries are beginning to exert jurisdiction over online speech in an attempt to curtail hate activities. For example, in 2003 a French court ordered California-based Yahoo to block the auction of Nazi paraphernalia, encouraging Yahoo to reconsider its policies. The Simon Wiesenthal Center’s Digital Hate and Terrorism project works with social networking sites such as Facebook to identify and remove hateful content [3], which has led to Facebook removing a number of Holocaust denial sites.

The United States Constitution has historically valued individual liberty and the First Amendment addresses the protection of freedom of speech specifically: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Since laws explicitly prohibiting hate speech are unconstitutional in the United States, hate speech is only illegal if it leads to certain forms of direct physical harm, such as defamation or causing a riot. Regulating hate speech in the United States is a contentious issue since it is often difficult to prove which hateful words incite or lead to hateful actions – especially with the growing influence of the Internet.

Many European nations, on the other hand, have implemented stricter policies regarding hate speech. This European trend to put restrictions on free expression has its roots in three pieces of international legislation. The European Convention on Human Rights (ECHR), the International Convention on the Elimination of All Forms of Religious Discrimination (CERD), and the International Covenant on Civil and Political Rights (ICCPR) all grant freedom of expression as a fundamental right. The ECHR, however, notes that restrictions on this right are sometimes necessary “for the protection of the reputation and rights of others.” The CERD and ICCPR mention hate speech specifically: the CERD specifies “all dissemination of ideas based on racial superiority or hatred” as a punishable offense, while the ICCPR includes “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. [4] Many member nations of the European Union also have histories of protecting individuals from hate: France, for example, had its first hate crime legislation in 1881; similar legislation still exists today and is widely employed to prosecute those seen as inciting racial hatred in contemporary France. [5] The Netherlands, the UK, and Denmark all specifically criminalize hate speech in their Criminal Codes. [6]

Canada rests somewhere in-between the United States and Europe. There is Canadian legislation that specifically addresses hate speech in Canada, including Article 13 of the Canadian Human Rights Act, certain provisions in the Criminal Code, and a section of the forthcoming Investigative Powers for the 21st Century Act (each of which are discussed in more detail in the section Online Hate and Canadian Law). However, the extent to which these laws can be democratically enforced, particularly in an online context, is the subject of debate. At the time of this writing Canada has begun to adopt a more American stance regarding censorship and monitoring, implementing fewer legislative restrictions on free speech and is gradually diverging from the European model in its approach to regulation.

  


[1] Kornblum, J. (1997). CompuServe “Death Penalty” Lifted. Technology News. Retrieved August 1, 2011, from
http://news.cnet.com/CompuServe-death-penalty-lifted/2100-1023_3-205584.html
[2] Reed, C. (2009). The Challenge of Hate Speech Online. Information & Communications Technology Law, 18(2), 79-82.
[3] Simon Wiesenthal Center. (2009). Facebook, YouTube +: How Social Media Outlets Impact Digital Terrorism and Hate. Simon Wiesenthal Center. Retrieved August 1, 2011.[4] The Legal Project (2011). European Hate Speech Laws: The Legal Project. Retrieved August 1, 2011, from
http://www.legal-project.org/issues/european-hate-speech-laws
[5] Ibid.
[6] Ibid.

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