The Federal Government Combats Hate Speech And Other Content Published On Social Media

• Published date: 25 August 2021
• Subject Matter: Media, Telecoms, IT, Entertainment, Privacy, Compliance, Mobile & Cable Communications, Data Protection, Social Media
• Law Firm: Fasken
• Author: Mr Nicolas Leblanc and Patricia Hénault

On July 29, the federal government announced that it intends to address criminal content and other egregious and reprehensible forms of harmful content circulating on social media and other online services. Five categories of content are targeted:

1. Online child sexual exploitation content, including all content associated with child pornography and other sexual offences relating to children;
2. Terrorist content, including any content that actively encourages terrorism and is likely to result in terrorism;
3. Content that incites violence, including any content that actively encourages or threatens violence and is likely to result in violence;
4. Content resulting from the non-consensual sharing of intimate images, including sharing intimate images or videos of a person who did not give their consent or for which it is not possible to assess whether consent was given;
5. Content consisting of hate speech as defined in the Canadian Human Rights Act (as amended by Bill C-36) that meets the criteria established by the Supreme Court of Canada in its hate speech jurisprudence.

It should be noted that these definitions are inspired by the Criminal Code but certainly go beyond it; in fact, this is expressly stated in the documents published. Apart from the criminal law, remedies for alleged harm caused by public statements, including damages and injunctions to have them removed, fall under civil law, established by each province. Parliament should therefore be conscientious in regulating speech that departs from that contemplated by the Criminal Code, so as not to leave itself open to a constitutional challenge based on the distribution of powers.

The initiative presented is intended to supplement Bill C-36 in the fight against hate speech and hate propaganda. Among this bill's proposals is an amendment to the Canadian Human Rights Act to add a section about communicating hate speech:

Communication of Hate Speech

13 (1) It is a discriminatory practice to communicate or cause to be communicated hate speech by means of the Internet or other means of telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.

Definition of Hate Speech

(9) In this section, hate speech means the content of a communication that expresses detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of...