ISSUE POSITION PAPER PREPARED FOR THE ADVISORY COMMITTEE TO THE SECRETARY OF STATE
CANADIAN SECRETARIAT WORLD CONFERENCE AGAINST RACISM ADVISORY COMMITTEE
HATE AND NEW MEDIA WORKING GROUP
Alan Dutton (chair)
This paper was prepared by the Advisory Committee to the Secretary of State (Multiculturalism) (Status of Women), a committee made up of individuals from outside the federal government, with varied experiences on the issues related to the UN WCAR themes. The Advisory Committee's mandate is to provide the Secretary of State with advice on aspects of Canada's WCAR preparations, and as such the contents of this paper do not necessarily reflect the position of the Government of Canada.
I. RECOMMENDATIONS FOR THE WCAR AND THE GOVERNMENT OF CANADA
The following recommendations for combatting hate on the Internet are divided into two sections. The first is aimed at the international level and the second focuses on Canadian domestic policy and law. The recommendations were derived from All Different, All Equal: From Principle To Practise, a conference held in Strasbourg, France, October 11-13, 2000 in preparation for the World Conference Against Racism (WCAR) by the Council of Europe; Legal Instruments to Combat Racism on the Internet, a report of the European Commission against Racism and Intolerance (ECRI; various regional conferences (Vancouver and Toronto) sponsored by the Department of Canadian Heritage in preparation for the WCAR; regional conferences organized by the province of British Columbia in preparation for the WCAR; and conferences organized on the appropriate use of the Internet and building an international culture of human rights online, the latter organized by the League for Human Rights of B'nai Brith Canada and the Canadian Anti-racism Education and Research Society.
The recommendations are followed by a brief discussion of the issues arising from the recommendations, strategies for implementing the recommendations, an action plan and a short bibliography. The authors have limited the length of the paper in an attempt to abide by the guidelines suggested by the Advisory Committee. The paper is offered as a catalyst for discussion in framing Canada's position on the issue. The authors would like to thank those who have commented on earlier drafts of this report, particularly Cynthia Cornish and Doug Findlater. However, the authors remain entirely responsible for the views and opinions expressed.
I.I. RECOMMENDATIONS FOR THE WCAR
I. It is recommended that the United Nations Commission on Human issue yearly progress reports on the compliance of all signatories to the International Convention on the Elimination of All Forms of Racial Discrimination and all other international covenants, agreements and laws which criminalize hate groups and hate propaganda.
II. It is recommended that the United Nations establish an independent international coordinating agency to: 1) develop a code of conduct for the Internet; 2) monitor hate propaganda and other human rights violations on the Internet; 3) issue yearly reports on the sources of hate propaganda and measures to prevent human rights violations on the Internet; and 4) develop educational programmes to help national, local and regional governments understand the impact of hate on the Internet and the need for international, national and regional regulation of the Internet for the prevention of the dissemination of electronic hate propaganda.
I.2. RECOMMENDATIONS FOR THE GOVERNMENT OF CANADA
III. It is recommended that the Government of Canada provide resources to help enable the United Nations to monitor compliance of signatories to the International Convention on the Elimination of All Forms of Racial Discrimination and all other international covenants, agreements and laws that ban hate propaganda and hate groups.
IV. It is recommended that the Government of Canada provide resources to help the United Nations establish an independent international coordinating agency to: 1) develop a code of conduct for the Internet; 2) monitor hate propaganda and other human rights violations on the Internet; 3) issue yearly reports on the sources of hate propaganda and measures to prevent human rights violations on the Internet; and 4) develop educational programmes to help national, local and regional governments understand the impact of hate on the Internet and the need for international, national and regional regulation of the Internet to prevent hate propaganda.
V. It is recommended that the Government of Canada enforce existing legislation and/or develop new legislation to fully comply with Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination and all other international covenants, agreements and laws that ban hate propaganda and hate groups; both on and off the Internet.
VI. It is recommended that the Government of Canada establish a working group consisting of non-governmental organizations, Internet Service Providers, connectivity providers, associations of Internet Service Providers and relevant government officials to: 1) develop an appropriate code of conduct for the Canadian Internet industry; 2) monitor hate propaganda and other human rights violations by Canadian nationals; 3) issue yearly reports on the sources of hate propaganda and measures to prevent hate propaganda and other human rights violations on the Internet; and 4) develop educational programmes to help provincial, territorial and municipal governments understand the impact of hate on the Internet and the need for international, national and regional regulation of the Internet and the prevention of hate propaganda.
VII.It is recommended that the Government of Canada amend Sections 318 and 319of the Criminal Code of Canada to include all those groups covered in >Section 719of the Code.
VIII. It is recommended that the Government of Canada amend Sections 319 of the Criminal Code to specifically include a prohibition against the distribution of hate propaganda on the Internet and by any and all other new technologies.
IX. It is recommended that the Government of Canada amend Sections 320 of the Criminal Code of Canada to specifically allow the confiscation of hard drives and/or other digital media used to store hate propaganda for the purpose of distribution..
X. It is recommended that the Government of Canada amend Section 13 of the Canadian Human Rights Act to explicitly apply to hate on the Internet.
XI. It is recommended that the Government of Canada urge all prosecutors and Attorneys General to initiate investigations more consistently and make more active use of the Criminal Code of Canada prohibition against propagating hatred, and to lay charges and seek the issuance of warrants of arrest against hate incitement on the Internet wherever in Canada the incitement originates.
XII. It is recommended that the Government of Canada provide NGOs financial support to help build and support a human rights culture online that would include: 1) monitoring and tracking hate on the Net; 2) responding to incidents of online hate; and 3) compiling and maintaining an up to date list of hate sites which institutions, Internet Service Providers and connectivity providers should be encouraged to block.
The Internet has quickly become one of the main tools for communication, education, advertising and commerce enabling direct contact between large numbers of individuals and groups throughout the world. As the European Commission against Racism and Intolerance (ECRI: 2000) notes, the "Internet offers an unprecedented means of facilitating cross border communication of information on human rights, establishing educational and awareness raising networks to combat racism and intolerance."
However, while the Internet has become an important tool for enhancing and expanding communication, commerce and education, it has also become a weapon for spreading hatred, advocating violence and genocide, and for denying groups basic human rights. As Karen Mock (2000) notes: "Unfortunately, the features that make the Internet an asset to democracy and the realization of human rights are the very characteristics that also render it an efficient and thereby dangerous tool for promoting hatred against identifiable minority groups."
While racist, xenophobic, homophobic and sexist material have been distributed by mail and through telephone answering machines in the past, the Internet has made the most virulent hate propaganda much more accessible to those who might never have come into contact with it before (Matas, 1997; 2000). In fact, the Internet allows hate mongers to reach into the privacy of people's homes to find vulnerable children and others who may be prone to hate propaganda and recruitment into hate groups.
The comparative advantage of spreading and selling hate online rather than by older methods may account for the dramatic rise in hate sites on the Net. The Simon Wisenthal Centre claims that there are now more than 2000 hate sites on the Internet, up from 1400 in 1999, which was a 100% increase from the year before. And the number of sites is growing and their sophistication is increasing.
A number of hate sites have emerged across Canada, in both small towns and in large urban centres. Fairview Technology Centre, Limited is a case in point. Fairview Technology was an Internet Service Provider (ISP) based in the small rural town of Oliver, British Columbia. The site was owned and operated by Bernard Klatt. The site provided access to most of the hate sites world wide as well as to local businesses, government agencies and schools. Fairview Technology provided links to hate sites on its home page just under school resources, making it extremely easy for the very young to inadvertently access racist sites like the Toronto based Heritage Front, World Wide Church of the Creator, and international skinhead sites like the extremely violent Northern Hammer Skins and the French Charlemagne Skins. The Fairview Technology web site gained international notoriety when Sol Litman of the Wisenthal Centre labelled the town where it was based the "hate capital of Canada." Scrutiny of the site resulted in French and British authorities arresting members of the Charlemagne Skins for posting death threats against Jews. The final blow to the Fairview Technology site came when British Columbia Telephone, the local Internet access provider, threatened to impose restrictions on the service following well publicized protests by the League for Human Rights of B'nai Brith, Canada and the Canadian Anti-racism Education and Research Society.
Faced with the threat and, in some cases, the actual withdrawal of service by ISPs and/or access service providers, those operating racist websites, in Canada like Marc Lemire, now head of the Toronto-based Heritage Front, moved the websites to the United States. Paul Fromm, a former school teacher who has a number of sites, soon followed suit. Ernst Zundel, one of the top exporters of hate to Germany and worldwide, is also alleged to own and operate a website in the United States. A Canadian Human Rights Tribunal is seeking to determine if, in fact, the "Zundelsite" is indeed Zundel's and whether Zundel violated the Canadian Human Rights Act by material on the website.
The impact of hate propaganda coupled with racist music and provocative pictures and graphics, creates an insidious enticement that clearly threatens public safety and undermines democratic institutions. A broad range of human rights and anti-racist groups have demanded that existing laws against incitement to hate be applied to the Internet. Where these laws need revision (in the light of issues concerning jurisdiction, digital storage, problems of anonymity of users, liability of ISPs and access providers), they should be immediately amended.
Provincial Attorneys General have proposed specific amendments to the Criminal Code to address hate on the Net; and the Canadian Human Rights Act Review Panel (2000) has proposed revisions to the Canadian Human Rights Act to ensure that hate on the Net can be addressed through the Canadian Human Rights Act. Justice Minister, Anne McLellan, has also recognized the needed to create laws to govern the Net and has proposed a new law to target pedophiles who use the Internet to lure children. As Minister McLellan has stated: "We [the Government of Canada] can move on that [creating a specific law to prevent pedophiles from preying on children on the Internet] fairly quickly" (The Province: Dec. 3, 2000; p. A 41).
There is also a broad coalition of Western European nations that is seeking to develop an international code of conduct for the Internet and to establish international cooperation for combatting hate on the Net (European Council: 2000). The Netherlands, in particular, has proposed sweeping recommendations to be presented at the WCAR in August 2001 to stop hate on the Net (European Council: 2000).
The Government of Canada is urged to take a leadership position within this emerging coalition of nations and within the WCAR process to support establishing an international coordinating body to prevent hate on the Net, to implement the recommendations to amend domestic law to address issues concerning hate propaganda on the Net, and to support recommendations to create a national coordinating body to monitor, track and prevent hate on the Net.
Despite the real and present danger of hate on the Net, some Canadian representatives of the Internet industry and some Canadian civil libertarians complain that attempts to prevent racist propaganda on the Net: 1) is an unwarranted violation of the constitutional right to free speech and privacy; 2) is a slippery slope that will lead to too much government interference of the Net; 3) will impose an undue economic burden on ISPs and access providers to monitor content; 4) will lead to Internet companies and developers leaving Canada for other countries that do not criminalize hate propaganda; and 5) is a waste of time since laws and regulations are "virtually" unenforceable because of the nature of the medium itself. In short, some industry representatives and some civil libertarians argue that any attempt to prevent hate on the Net will lead to the destruction of commerce and democracy as we know it.
Yet the same "free speech" advocates have remarkably little to say about other laws that violate free speech on the Net such as laws to prohibit copyright infringement, fraud, threats, libel and defamation. The question is not whether responsible governments should ban hate on the Net or not -- laws that apply to uttering threats, copyright, libel and defamation, child pornography and hate propaganda in the press or the electronic media also apply to the "new media" as well, including the Internet. As the ECRI (2000) states: It is a myth that laws to prevent hate propaganda do not apply on the Internet.
"The myth of an Internet without faith or law should be dismissed at the outset. This myth of a legal vacuum, which is supported by certain alarmist politicians, amplified by the press and exacerbated by unconsidered declarations of independence by "surfers" eager for absolute freedom, does not stand up to examination. Like any other means of communication, the Internet does not escape the law. As a general rule, the laws governing the right of communication are drafted in a technically neutral manner, which takes into account any dissemination of information irrespective of the medium; consequently, they are fully applicable to messages distributed on the Internet... the problem therefore lies not so much in the absence of adequate material rules as in obstacles to their application in the form of the characteristics peculiar to the networks of networks, namely its polycentric structure, its ubiquity and the cover of anonymity... [The] minimum standard [for preventing hate on the Net], moreover, is imposed by the United Nations Convention on the Elimination Of All Forms Of Racial Hatred, Article 4 of which requires the adoption, inter alia, of a provision penalizing the propagation of racial hatred outside a strictly private circle. These criminal provisions, which are drafted in general terms, are applicable, inter alia, to hateful expressions disseminated via the Internet." (ECRI: 2000; p. 13)
As a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination, Canada has a binding obligation to prevent hate propaganda. Article 4 of the Convention obliges Canada to prevent the dissemination of ideas based on racial superiority or hatred, incitement to discrimination, as well as all acts of violence against any "race" or group of persons of another colour or ethnic origin, and to prevent racist activities, including financing, and prohibit organizations, and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities an offence punishable by law. In fact, Article 4 of the Convention states that signatories:
- (a) Shall declare an offense punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such attacks against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
- (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offense punishable by law;
- c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.
Other countries have implemented the obligations that flow from the Convention. In June 1997, the Germany Bundestag passed the first comprehensive national Internet law (Mock, 2000). It established rules for protecting confidentiality of personal data and prohibits pornography, fascist propaganda and Holocaust denial. The law also establishes licenses for "digital signatures", or electronic codes that promise to make commercial transactions on the Internet both secure and confidential. A law was recently passed on privacy of information in Canada, but it does not address hate or appropriate use codes.
The Government of Canada is central to efforts nationally and internationally to create laws and regulations to prevent hate on the Net. While specific amendments to update the Criminal Code of Canada and the Canadian Human Rights Code are needed, as argued above, present laws apply to all domestic Internet traffic and should be fully and unconditionally enforced. The Government of Canada must show leadership on the Net. The Internet industry will much more easily adapt to new rules if governments not only support the protection of groups targeted by hate but is perceived by the Industry to be committed to protection at all levels including internationally. Civil libertarians opposed to any form of control and/or regulation other than self-imposed will not be satisfied with anything other than total freedom, excluding protection of copyright, libel, defamation, threats, etc..
Education is key to demonstrating the need for legal sanctions and the need for industry and civil society cooperation to develop codes of conduct and other measures to improve the Net by promoting human rights. The Government of Canada can aid the prevention of hate on the Net by supporting a number of new initiatives. ISPs in several countries have formed industry associations in an attempt to establish codes of conduct, or at least to develop a common approach to the regulatory issues raised (Mock, 2000). For example, the Code of Conduct of the Canadian Association of Internet Service Providers (CAIP) maintains that its members will not knowingly host illegal content, and that they will make reasonable efforts to investigate legitimate complaints about illegal content or network abuse and will take "appropriate action" against those who violate the Code. The Code of Practice of the Internet Service Providers Association (ISPA) of the United Kingdom, which was originally voluntary but became mandatory for members in 1997, states that members "shall use their reasonable endeavours to ensure services and promotional material do not contain material inciting violence, sadism, cruelty or racial hatred" (cited in Mock, 2000). In 1997, the European Internet Services Providers Association (EuroISPA) was established with seven member associations, representing over 400 ISPs across the European Union. Its stated goals are to "promote self regulation and to influence the regulatory process on behalf of the Internet industry".
The voluntary use of software products that allow a parent to block objectionable content is another approach that might be encouraged. Filtering software can evaluate information to determine acceptability as measured by user established criteria. Filtering has strong appeal in some quarters because it provides individuals, institutions or governments a tool to restrict access on their personal computers and/or computer systems. The limitation of all filtering software, however, is that it is "dumb" may unduly restrict legitimate information.Young Internet users can easily learn to disable filtering software without parental consent or knowledge.
There are also promising "hate watch" websites that monitor and work to expose and prevent illegal material on the Internet. These range from government established ones to human rights and anti-racist NGO sites like the League for Human Rights of B'nai Brith Canada and the Canadian Anti-racism Education and Research Society. Both groups monitor hate on the Net and mobilize communities to lobby ISPs and access service providers to drop web sites that violate Canadian law. These and other human rights and anti-racist websites provide detailed information on human rights, anti-semitism and racism. Among the public education sites in Canada are the NIZKOR Project, Research Community Network, Artists Against Racism and the Media Awareness Network.
However, the law is a blunt instrument that best, the battle against hate on the Internet must use all the tools that are available, from law to education to strong and active NGOs. The Government of Canada is urged to support efforts to incorporate Holocaust education, multiculturalism, anti-racist, and human rights education in schools, in the mainstream media and in the alternate and new media. Computer literacy courses, and indeed most educational courses, need to be supplemented by critical thinking strategies to teach how to recognize lies and propaganda, despite how credible the purveyors of hate may try to make them appear.
The first option is to do nothing. This option has serious liabilities, including political repercussions. It will have the effect of condoning hate on the Net and will clearly be perceived as giving tacit license to hateful expression regardless of media. Doing nothing will inevitably lead to more hate sites based in Canada and to further violations of fundamental human rights and increased hate crime. Furthermore, Option 1 contradicts the intention of various provisions of the Criminal Code of Canada against the dissemination of hate and the Canadian Human Rights Act as well as international obligations undertaken by Canada. Option one, however, was chosen by the Canadian Radio and Television Commission which recently rejected jurisdiction over the Net in Canada.
The second option is to support the self-regulation of the Internet by the industry itself but not legal sanctions against hate propaganda or support for NGOs that monitor, track hate and provide education to combat and stop hate on the Net.
This option does not condone hate on the Net, as does option 1. But the self-regulation of the Net by the Industry is largely untested, and self-regulation may be uneven at best. The Industry may itself be less than enthusiastic at supporting effective self-regulation.
This option may also be perceived as giving tacit license to hateful expression regardless of the media. As a result, this option,. like option 1, may lead to more hate sites based in Canada and to further violations of fundamental human rights and increased hate crime.
Option 2 clearly contradicts the intention of various Criminal Code provisions against the dissemination of hate, as well as Canadian Human Rights Act and various international obligations undertaken by Canada.
The third option is to use all the tools that are available to combat and stop hate on the Net, including enforcing international and domestic law where applicable, creating new law or amending laws where required, advancing education as well as self-regulation of the Internet by the industry working with Government and NGOs and supporting the strong and vigourous activities of institutions within civil society in their own right to combat and prevent hate on the Net.
This option will comply with Article 4 of the International Convention on the Elimination of all Forms of Racial Discrimination which requires that signatories enforce prohibitions against hate groups and hate propaganda. Option 3 will require the Government of Canada to implement the amendments to the Criminal Code of Canada proposed by the Attorneys General and the Minister of Justice in 1999 on protecting new categories of people and creating specific wording to modernize the Code. The Government of Canada may also be required to implement the amendments to the Canadian Human Rights Act as proposed by the Canadian Human Rights Act Review Panel(2000) and the British Columbia Human Rights Commission (2000).
The third option will comply with the recommendations of numerous conferences on hate on the Net, as well as the recommendations proposed by the regional meetings convened by the Secretary of State in preparation for the WCAR, as well as recommendations proposed at the European Council Conference in preparation for the WCAR held in Strasbourg, France, October 2000. (European Council 2000)
However, the third option will require greater international cooperation and the need for additional financial resources for the United Nations to establish an agency to coordinate activities to educate, to monitor and regulate the Internet. It will also require financial support for independent coordinating agencies in Canada to coordinate activities to educate, to monitor and regulate the Internet and human resources, as well as financial resources for the key to success in combatting and stopping hate on the Net - strong and vigorous anti-racist NGOs.
5. ACTION PLAN
If Option 3 is adopted then:
- A committee representing countries that plan to support the recommendation at the WCAR for an international coordinating body to combat and stop hate on the Net should be established with the help of the Government of Canada.
- The expertise of the members of the Roundtable on Hate and Bias Activity struck by the Secretary of State in February 2000, should be used to provide advise on the nature and representation of the proposed international and national coordinating agencies. Proposals the structure and representation, should be formulated well before the WCAR.
- Members of the Roundtable on Hate and Bias Activity should be asked to undertake research on Canada's compliance with international obligations on racism and hate crime and to advise the Government of Canada on a time frame for full compliance with Article 4 of the International Convention on the Elimination of all Forms of Racial Discrimination. The Government of Canada should be in full compliance with all international conventions and declarations well before the date of the WCAR
- The Roundtable on Hate and Bias Activity should be consulted to provide advise on the wording for the proposed amendments to the Criminal Code and the Human Rights Act. Proposed amendments need to be tabled in the House of Commons in a timely manner. Proposed amendments should be completed and tabled, ideally before the WCAR, but no later than the end of 2001.
- Budget estimates for the financial resources to support United Nations, Canadian Government and NGO work to combat and stop hate on the Net by Spring of 2001 should be undertaken immediately and completed by March 2001.
- A plan of action to help prosecutors and Attorneys General initiate investigations more consistently and make more active use of the Criminal Code prohibition against propagating hatred, and to lay charges and seek the issuance of warrants of arrest against hate incitement on the Internet wherever in Canada the incitement originates by the Spring of 2001 needs to be developed with the advice of the Roundtable on Hate and Bias Activity.
- A national Internet Coordinating Group composed of representatives of Industry, Government, and anti-racist NGOs should be established by March 2001 to: a) develop a universal Uniform Set of Standards, b) require ISPs to be licensed and a member of a governing ISP body that would be responsible for developing and enforcing a Uniform Set of Standards and, c) adopt codes of conduct which would exclude provision of services to those who use the Internet to promote hatred. Any stand alone Internet group composed by government will lack credibility. As a result, NGO participation and control is essential.
- Adequate resources to enable NGOs to monitor hate on the Net and to compile a list of hate sites which governments can encourage institutions to block should provided by the Government of Canada. Providing access to the Internet is an admirable goal, but access without human rights is deplorable and a serious breach of community standards and safety. Therefore, every effort must be made to support all the tools available to combat hate on the Net.
6. INTERNET RESOURCES
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European Council. Draft General Conclusions. All different, all equal: from principle to practise. Strasbourg: European Council, 2000.
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International Human Rights Law Group. Combatting Racism Together: A Guide to Participating in the UN World Conference Against Racism. Washington, 2000.
Lipstadt, Deborah. Holocaust Denial at the Centre of the Web of Hate. Keynote Address, International Symposium On Hate On The Internet. Toronto: B'nai Brith, 1997.
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Mock, Karen. Hate on the Internet. Forum, Volume 7, No. 1 (1997), Summer/Fall, Canadian Human Rights Commission.
NGO Forum. Revised Draft Report from the Forum of the Non-Governmental Organizations. All different, all equal: from principle to practise. Strasbourg: European Council, 2000.
Macmillan, Craig S., Myron G. Criminal Proceedings As A Response To Hate. Paper presented at the Hatred In Canada: Perspectives, Action, And Prevention Conference, Victoria: University of Victoria, 1998.
Secretary of State (Multiculturalism and the Status of Women). A Call for Action: Hate and Bias Activity Roundtable. Ottawa, 2000.
Secretary of State (Multiculturalism and the Status of Women). Report: Hate and Bias Activity Roundtable. Ottawa, 2000.
Stewart, Jane. "Ottawa to target Net pedophiles, says justice minister" The Province, Sunday, December 3, 2000, p. A 41.
Swiss Institute of Comparative Law. Legal Instruments to Combat Racism on the Internet. Strasbourg: European Commission against Racism and Intolerance, 2000.