Monday, September 12, 2011

Hate Speech, Unmoderated Comments, National Media and Free Expression

 "He's a liar, a cheat, and a scoundrel !" (Potentially defamatory, unless proven to be true)
"They're scum, and they all deserve to die!" (Potentially hate propaganda, truth tests irrelevant)
As a constitutional lawyer, I'm all for free speech. Lots of national constitutions guarantee it, like s-s. 2(b) of the Canadian Charter of Rights and Freedoms which protects "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication." And as Canada's past Director of E-Business Development, I recognize the economic value that free speech can build in online communities.

But the legal reality is that there are limits to online speech. In Canada s. 1 of the Charter says that its guarantees are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Laws against defamation and hate, here and elsewhere, check precisely what can be said about whom.

Courts and public discourse are increasingly having to grapple with liability for freedom of expression in the age of the Internet Economy. When I was at the 5th Internet Governance Forum last year in Lithuania, I got to chatting with the ever dynamic and smart Brazilians who were becoming increasingly fearful that major Internet Service Providers (from Google on down) would pull up stakes if the endless barrage of defamation-related civil and criminal litigation brought against them for commentary posted by users of their products (like bloggers) did not diminish.

And Brazil is just the current leader on the beach of shifting Internet defamation sands. Even in places like the United States where courts haven't been overly sympathetic to Internet defamation lawsuits, there are risks to guard against. Courts can't even agree on when whether Internet defamation should lead to higher than normal damages because of its wide distribution, or lower than normal damages because no one takes everything they read on the net seriously (check out this most readable Alberta Law Review article).

However, the thing that's been really bothering me lately is that court cases and public discourse seem to have focused on laws of defamation which protect reputation, rather than on laws prohibiting hate propaganda which protects peoples' lives. Grey vagueries and consequences of Internet defamation should NEVER be confused with hurtful and sometimes deadly certainties of Internet hate propaganda.

The Canadian Criminal Code has this to say on spreading hatred:
Public incitement of hatred
s. 319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Wilful promotion of hatred
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
These laws apply to public Internet communications. Other countries have similar laws.

There are lots of dark Internet corners with private forums where hate will fester for those who look hard enough, and few resources available to track all of them down. But where we have public highways of the Internet bathed in the spotlight of national media offering users the opportunity to post comments, there may be a greater obligation to take reasonable steps to stop the spread of hate through widely read commentary appended to articles and videos.

I'm not talking about all you diligent bloggers off in blogoland being read by dozens, hundreds or (gasp) thousands of readers per day (I think I have a ways to go yet to even get into the dozens realm). I rarely see offensive blog comments, and when I do blog owners usually take care of them pretty quickly.

And I'm not wading into ongoing debates over the liability of third-party Internet Service Providers who merely provide the technological means for millions of content creators to do their thing (not unlike a telephone company providing the means for millions of verbal conservations, good and bad).

What I'm asking you to think about is the responsibility of organizations creating some content for millions of users a day to control the comments being appended to that content. News sites seem to break down into four categories of comments policies:

1. those that prohibit all comments - no problem there on the hate front;

2. those that moderate their comments firmly and in advance - rare for there to be a problem in the face of firm screening policies and diligent moderators;

3. those that require users to register a supposedly true identify to guard against anonymous hit and run attacks - while several media organizations have been considering ending anonymity due to this argument, some maintain that only firm moderation will do; and

4. those that take down offensive posts only after complaints - an after the fact moderation.

Canadian media are taking different approaches to the online hate commentary problem. Some have been subject to criticism due to comments posted on their sites. What I think all media need to consider here is what is really being accomplished by permitting online comments to link and immediately follow their creative content, and if they think that significant value is being created by comments on articles and videos, are they willing to put significant resources behind keeping those comments to an appropriate level.

Careful moderation (and sometimes editing) was always the rule for publishing letters to newspaper editors, so why not for online comments? If comments are appearing on a branded website, and being associated with carefully crafted creative content, why not impose reasonable controls in advance of the comments appearing?

Too many comments? Too difficult? Too expensive? Then why permit the comments in the first place?

As a white English speaking male from a "developed" country, I'm not the one against whom problem comments are aimed. But I feel I'm the one who needs to speak out about the problem. As a defender of free speech and freedom of the Internet, I'm also a defender of those who get attacked by that speech and through Internet means. I'm intolerant of intolerance.

Many Internet hate victims don't yet benefit from easy Internet access themselves. Others can't be expected to spend all their time tracking down and responding to the hate. And really, what is an appropriate response to hate anyway? At the very least, it needs to be pushed to the margins of the web. It's not a question of censorship, it's a question of human rights.


  1. Well, you know my opinions! Newspapers and such used to edit letters and print things that were deemed worthwhile. The least they could do now is edit out the hateful garbage that litters so many comment forums on news sites, or at the very least forbid anonymity. In the old days, you had to sign your letters to the editor and include and address and phone number!

    The unmoderated or poorly moderated comments on these sites are so offensive, they put me off even reading the news online at times.

  2. Very thoughtfully and carefully crafted.

    I dislike the fact that it is the vehicle that takes the hit and not the driver i.e. Google vs the commenter. I know it is pretty hard to prosecute an anonymous person, but I see no reason why Google (I'm just using them as an example) should be held responsible - well unless they are endorsing said opinion of course.

    The internet does open up a whole new can of worms though in regard to issues such as privacy, freedom of speech, hatred, propaganda etc. Will keep lawyers busy trying to solve these issues for years to come.

  3. Whenever I read news and other such articles that have comment forums, I skip the comments all together. Most do not benefit the reader nor the one being commented on unless the speech is in the form of a helpful criticism, without the name calling and bantering. The news sites really should moderate their comment forums and if that is not expedient for them, then have no comment forums.

  4. I think one of the problems surrounding this topic is that our society has lost sight of the importance of intelligent discourse and people are happy to flaunt their ignorance. With the noted "dumbing down" of much of North American culture, we seem to have set up a state where there is little interest in critical self-evaluation. The result is that people see nothing wrong in saying whatever they want, rudeness abounds, also poor use of language and poor judgement. Sometimes, comments are just silly and ignorant, but unfortunately many people say cruel and hurtful things and get away with it. (I have been following with interest the recent statements by a certain political candidate who has referred to immigrants as "foreigners". This should have received more critical scrutiny than it did.) In a society that does not value being educated and thoughtful, stupidity and cruelty will proliferate.

  5. I have mixed feelings about this topic. I generally try to avoid reading comments to online news articles because they have a tendency to destroy my faith in humanity. On the other hand, sometimes I get sucked in and the ignorance on display can be quite illustrative. On occasion some of the comments are quite good and thoughtful.

    I'm all for promoting vigorous and robust debate while protecting people from violence. However, there are those who would love to control the flow of information and thereby take advantage of the slippery slope created by any censorship. It is a fine line for sure. When in doubt, I think freedom requires us to err on the side of free speech.

  6. Thanks everyone for your most thoughtful, respectful and unhateful comments. Your reasonableness is of course disproving my thesis that comment premoderation is necessary.