An interview with David Matas, senior legal counsel for B’Nai Brith Canada, who was instrumental in drafting the CBA’s submission on these issues of online hate.
This episode was recorded before the horrific, hate-motivated attack on a Muslim family in London, Ontario, on June 7, 2021.
An interview with David Matas, senior legal counsel for B’Nai Brith Canada, who was instrumental in drafting the CBA’s submission on these issues of online hate. We talk Section 13 of the Canadian Human Rights Act, procedural safeguards and the balance between freedom of speech and protection against online hate.
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Voiceover: This is the Every Lawyer, presented by the Canadian Bar Association.
Marlisse Silver Sweeney: Welcome to The Every Lawyer, a Canadian Bar Association podcast. I'm your host, Marlisse Silver Sweeney.
You don’t have to scroll far down your Twitter feed to see the messages of online harassment and hate. But when it comes to laws prohibiting these actions, they need to strike a balance between protecting freedom of expression, but also protecting people against online hatred and discrimination.
Today on The Every Lawyer, we’re going to discuss just how to get this right.
The CBA’s constitutional and human rights, criminal justice and sexual orientation and gender identity community sections, made submission to the Justice Minister’s office in the fall of 2020. These were in response to a consultation on these issues.
They argued that the civil law in this area leaned too heavily on combatting hatred so much, that that it was repealed for inhibiting freedom of expression. The government is expected to introduce new legislation on this issue soon.
How does it strike the right balance?
To answer our questions and guide us through the discussion today, we’re speaking with David Matas. He’s a human rights, immigration and refugee law lawyer, who serves as legal counsel for B'nai Brith, Canada.
In 2008 he was awarded the Order of Canada for defending the rights of society’s most vulnerable members. David was also a key contributor to the CBA’s recent submission on issues of online hate.
David, thank you for being here today.
David Matas: You're welcome.
Marlisse Silver Sweeney: So Section 13 of the Canadian Human Rights Act was repealed in 2013. It allowed people to complain to the Federal Human Rights Commission about the communication of hate messages by telephone or on the internet.
But its opponents said it had been used as a sword, not as a shield, to protect Canadians, and that it’s severely curtailed freedom of speech. Can you tell me a bit more about this, and whether or not you agree?
David Matas: Yeah, I can tell you a bit more about it, and there’s an extent to which I agree. The principle, I think, was right, that there needs to be a remedy against hate on the internet. But the trouble with the system that was set up is that it didn’t have enough in the way of procedural safeguards or due process, so that it could be used by anybody to complain about almost anything against almost anybody else.
And sometimes these complaints just ended up being harassment against the person that was the target, or the organisation that was the target of the complaint.
So what I think was needed was a replacement more elaborate due process requirements, so it could more easily attain its goal. But instead, it was just repealed, which, in my view, was going too far and didn’t really address the problems, which was not the substance, but rather the procedure.
Marlisse Silver Sweeney: So given past criticisms, why is a specific remedy for online hate needed? What would it do and how would it protect Canadians?
David Matas: It’s needed because there’s a lot of online hate. And the internet providers on the whole, they have terms of service which prohibit online hate. But they don’t run that particular provision in their terms of service very well.
I mean, the internet service providers, they're experts in technology, of providing internet service, and they're not experts on what is hate and what isn't hate. And they also don’t have much in the way of procedures themselves for establishing or rejecting what is online hate.
The timelines can be slow, the decisions can seem arbitrary, there’s often no reasons - . They produce transparency reports, which are far from transparent, so it’s very hard to figure out what they're doing.
And really, when you're dealing with a subject like this, you need the expertise that the governments can bring, you need the due process that the courts can bring. Just leaving it to the internet providers alone doesn’t work.
Marlisse Silver Sweeney: And so right now, after Section 13 was repealed in 2013, is that what we’ve done, we’ve left it to the internet platforms and internet providers?
David Matas: That’s in effect what’s happened.
Marlisse Silver Sweeney: Okay.
David Matas: And we've seen, of course, lots of problems with that -
Marlisse Silver Sweeney: Yes.
David Matas: - accelerating problems. I mean, not just in Canada, but around the world, which I believe has prompted the government to look at this issue again.
Marlisse Silver Sweeney: Okay. All right. And so previously you mentioned more procedural safeguards if we’re going to have legislation that curtails online hate messages. The submission that you were part of drafting, recommends that legislation set out principles for awarding costs, as a way to ensure the legislation isn't being used unfairly.
Can you talk me through how this would work?
David Matas: Awarding costs is far from an unusual feature in legal proceedings. I mean, typically costs are awarded with the cause. I mean, whoever wins gets costs in civil proceedings.
That was not possible for these proceedings, and we’re not suggesting that they happen in every proceedings, but the courts have said, for the Canadian Human Rights Tribunal and other tribunals, unless there is a statutory provision to award costs – that allows them to award costs, they can’t.
And so we’re not saying that it should be like the normal civil proceeding, where costs always just go with the cause, but that there should be a power to award costs in frivolous proceedings and vexatious proceedings and in proceedings which don’t have any merit from the get-go.
We’re thinking here of not only making the remedy viable, but preventing it from being abused in such ways that it becomes a form of harassment against people whose statement somebody doesn’t like. And awarding costs is one way of doing that.
Marlisse Silver Sweeney: Okay, and then, the CBA submission also recommends that the Canadian Human Rights Commission screen cases. Can you tell me – can you explain why it’s needed and what that would actually look like in practice?
David Matas: Again, what we're looking at is the [awardance 00:06:59] of frivolous litigation in this area. Screening is far from unusual. In fact, what we saw when these commissions were set up, because they're provincial as well as federal, is – and this still goes on to some extent, or in some provinces – they both screen cases and conduct cases.
And we had suggested a coupling of the screening and conduct function, that all cases should be screened, but not all cases should be conducted by the commission. That the commission would have the power in an important case there, to conduct the case, or it was a case where perhaps a disadvantaged person didn’t have the means to conduct the case themselves and the commission felt it was worth doing.
But screening is just a way of making – another way of making sure that frivolous cases don’t go too far.
Now, this screening function already exists in the criminal law, because you can't start a prosecution for a wilful promotion of hatred without the consent of the attorney general of the province in which the event occurred.
But it doesn’t exist – well, I mean, right now there’s no law, but when and if there is something to do with the internet, there needs to be, we’re suggesting, something like that so that somebody cannot just drag somebody else through a proceeding, simply because it annoys the person who started the proceeding.
Marlisse Silver Sweeney: Right, okay. Other procedural safeguards. So we’re running through all of them, they're quite interesting. The ones recommended include requiring complainants to choose a forum, and also the right of respondents to know their accuser.
Can you explain to me why these are important in ensuring a balance between freedom of speech and protection against online hate?
David Matas: Well, as I mentioned, we do have these jurisdictions across Canada, federal and provincial. And stuff on the internet, of course, it’s everywhere, so it’s not just in one province, it’s in all the provinces, and it’s federal as well.
And so what we saw before Section 13 was repealed, we had complainants going to several provinces and the federal government at once, making simultaneous complaints about the same material, against the same person or entity or organisation.
Marlisse Silver Sweeney: Oh, wow.
David Matas: Which was onerous, and I think the complaints themselves were poorly-founded as well. So it became an obvious problem. And the reality is, if one forum has jurisdiction, it can give an adequate remedy. There’s no need to go to all the various jurisdictions to do that.
So it’s just cutting off an avenue of harassment. That was the point of that one.
Marlisse Silver Sweeney: Okay, and then what about the right of respondents to know their accuser? Can you explain this a bit more, because I'm not very familiar with how these claims have worked in the past. But would respondents not know who was asserting these claims against them?
David Matas: No, because I mean, as I say, the way the system worked, the commissions would not only screen, they'd also conduct. So all the target of the complaint would know is what the commission told them. And the commission wouldn’t necessarily disclose who made the complaint.
And in fact, often they did not, they just said, “We have heard …” and they’d proceed to, in some cases, just report a rumour, but they won’t say who told them the rumour. And then proceed to conduct a case, based on this rumour, and that itself was unsatisfactory.
I mean, the point of knowing the accuser, it’s also a matter of disclosure of what’s the information, what’s the source of information? If you know the accuser, you can cross-examine the accuser if necessary, you could find out basically what’s behind it.
Because if all you've got is the commission telling you this is what they know, I mean, basically they go on a fishing expedition to find out if there’s any basis for the complaint. And your defenceless against it, because you don’t even know what started, other than what the commission tells you, what started this fishing expedition.
Marlisse Silver Sweeney: Right, are there any other examples where respondents might not know their accusers in Canadian law?
David Matas: It can sometimes happen for witness protection purposes. There may be good instances where a witness would be a threat and needs to be protected for that purpose. It could happen in some spousal abuse cases, for instance.
Marlisse Silver Sweeney: Right, but civilly? This is a civil claim, yes?
David Matas: Yeah. Well, can I give other examples in a civil situation where a person would not know their accuser? I can't think of any offhand, because this business of the commission conduct as opposed to the complainant conduct, is a feature of human rights commissions. But I can't think of other instances where it occurs.
I mean, I'm not familiar, you can well imagine, with all administrative tribunals.
Marlisse Silver Sweeney: Of course.
David Matas: And there may be some other administrative tribunals that function in the same way, where they conduct the cases. Some of these labour relations boards and so on.
I think, for instance, that unions will conduct cases on behalf of their members, and I don’t know, it may be that in some situations they don’t actually disclose who the member is they're conducting the case for.
I don’t know that’s the case, but I mean, that’s a possible situation where it might arise. It’s just, I don’t get involved in that area of the law, so I'm not that familiar with it.
Marlisse Silver Sweeney: Of course. It just seems to me that this is a fairly unique aspect of the prior law and how I went through, to not know an accuser. And as you say, to not be able to cross-examine the person.
David Matas: It may well be unique, it’s just, I can't tell you for sure whether it is.
Marlisse Silver Sweeney: Okay. Canada hasn’t had legislation in this area since 2013, I suppose. Does that make us rare in other jurisdictions - you know, Europe, North America - or is that pretty standard?
David Matas: On the contrary, I mean, we haven't anything, but what the Americans have done is even worse, because they’ve enacted what’s called safe harbour legislation, which says that the internet providers can't be prosecuted or sued for what’s on their services.
The United States has enacted a form of immunity, which Canada hasn’t done. They’ve just left the field blank.
There’s a lot of efforts in the US to amend the safe harbour Provisions Communications Decency Act, which has the safe harbour provision. There’s a wealth of proposed amendments before Congress on that, largely because –
Well, I mean, a lot of these internet providers are housed or headquartered in the US. And there’s been a lot of controversy, both about what they're allowing and they're not allowing.
I mean, there’s a partisan division about what should be allowed and not be allowed, but both sides have grievances with what’s allowed and not allowed. And so I can see some sort of change happening in the US.
But in Canada we don’t have that problem. I mean, it’s not as much a partisan issue as it is in the US. But we see lots of problems, because the absence of – it’s a field where there’s no regulation.
Marlisse Silver Sweeney: Right, okay, and what about in Europe? I mean, that’s broad, but do you have an example or two of internet –
David Matas: I mean, it is possible to talk about Europe, because there’s the European Union and the European Commission. And what they’ve tried to do, they have set up some standards and they’ve also tried to work with the private sector. And they’ve negotiated an agreement with them, so that they would have trusted flaggers, which come from the NGO sector.
And the internet providers, when they get a complaint from a trusted flagger, have to respond within a certain time, I think forty eight hours, and take down the subject matter against which there’s a complaint, if it doesn’t fit within their services.
So that’s positive, and it’s certain a step above what we have here. I notice that YouTube has developed just on its own website a trusted flagger system. But it’s not quite the same as what the European Commission has devised.
And I have no problem with the internet providers doing something to make their terms of service function. I think that’s okay. But I think there still needs to be some legislation and some governmental oversight, because taking things down works against the business model of internet providers, right.
Marlisse Silver Sweeney: Right.
David Matas: And as I say, it’s not their area of expertise, neither the subject matter content, nor the due process, the procedures. And so there needs to be something more than that.
And within Europe itself, there isn't much in the way of a sophisticated legal remedy that goes beyond what the internet providers do through this trusted flagger system.
Marlisse Silver Sweeney: Okay, so Canada really has the opportunity, I guess we could say, to become a leader in this area?
David Matas: Yeah. I mean, Australia’s been grappling with this as well, and I would say that this is – I mean, obviously the internet is a great boon, I mean, right now we’re communicating through the internet.
But it’s generated – well, like any technology, the technology itself is morally neutral, but you get the full range of human nature addressing and using and manipulating the technology. People who want to use it for good and people who want to use it for harm.
And the amount of harm, the extent of harm, the types of harm that those who want to inflict harm can inflict through the internet, is only becoming apparent after it’s done, as it’s done. We end up playing catch-up, and we need to enact the safeguards after we’ve seen the harm that’s been inflicted.
And as the internet has become more and more pervasive, we’re seeing more and more of this harm. So the need for catch-up becomes more and more imperative.
Marlisse Silver Sweeney: Right, okay, that makes sense. This may be a hard question, so feel free not to answer it, but I was wondering if you could walk me through what a claim would look like? Like, an example of why someone would go to the Canadian Human Rights Commission, and then what that would look like for them, based on the procedural safeguards that the CBA is recommending?
David Matas: Well, of course, what the procedures would be would, to a certain extent, be determined by the system once the system is in place. I mean, right now we have a system of complaints for, let’s say, discrimination, to the Canadian Human Rights Commission or the provincial commissions.
And there are various models out there. Some of the commissions don’t get involved in cases at all, and there’s just direct access to tribunals. And if you go to the Human Rights Commission website right now, they’ve got a questionnaire. And they have a kind of a very, I would say, restricted list of choices, which doesn’t necessarily encompass all the situations within the frame of the act.
And if you can sort of fit within the questionnaire, you can get your complaint processed through that questionnaire. Otherwise you have to file the complaint on paper, they don’t even give you an email option. But I mean, to a certain extent, you know, whether it’s a questionnaire or an email or fax or mail, those are kind of technical questions.
But I think it starts off with somebody sees something on the internet they don’t like, so they make a complaint. They can make a complaint either against the poster or the provider, or both.
And then it goes to the commission, and if what we recommend is in place, the commission would look at it and first of all screen it, either in or out, admissible or inadmissible.
If it passes the screening stage, then the commissioner has to make a choice between conduct or no conduct. And presumably in most cases it would be no conduct. The commission would only be taking a few cases where it’s a good complaint, but the complainant can't have conduct of the case, or raises a kind of general issue in which the commission wants to get involved.
So if it’s a complainant who’s just screened in, it would be much like civil litigation. The person would file the materials, it would go to the tribunal. The opposing side would file their materials and there would be a hearing, and the tribunal would decide whether – well, there could or could not be a tribunal. I mean, a tribunal could function in writing as well.
And then there would be a decision whether the complaint was good or not.
Marlisse Silver Sweeney: Okay, well, thanks for walking me through that. I just wanted more clarification on how the procedural safeguards would actually function, as opposed to past legislation, 2013 and before.
So the submissions that you made were made in the fall of 2020, and there’s been some indication that the government could be planning to introduce legislation on these issues imminently.
What do you want to see, what’s next in this area?
David Matas: I suppose the Canadian Bar Association would like to see all its recommendations adopted and the legislations with those recommendations enacted and implemented as soon as possible.
Marlisse Silver Sweeney: Right, okay. Well, is there anything that I haven't asked you, David, that you think is important for our audience to understand about this? It’s such a fascinating area.
David Matas: Well, what I would say is, I mean, you've talked about disclosure of the accuser and you've talked about the multiplicity of proceedings, and you've talked about screening. Which were, of course, some of the recommendations the Canadian Bar Association made. But we’ve made many more. And I mean, from the perspective of the Canadian Bar Association, they're all important. And we do have a brief which is available on the internet, which people can access if they want to go through them.
I would say, generally what we’ve got here is two competing human rights, the right to freedom from incitement to hatred, and the right to freedom of expression. And they're both equally important. There are people who can justifiably complain about breach of either of them.
And what you’ve got as a result of it is a balancing effort. The previous legislation, in my view, went too far against freedom of expression and in favour of prohibiting incitement to hatred. And then we’ve got, with the repeal, we went in the exact opposite direction, went too far in favour of freedom of expression and not enough about freedom from incitement to hatred.
So what we’re going to do, hopefully, is get new legislation that will get the balance right. And it’s going to be inevitably a work in progress, as the internet itself is. But I think that the internet is so important and indeed, so pervasive, that we just can't leave things the way they are.
And if things don’t work out from what we’ve done before, we’ve just got to keep on trying until we get it right.
Marlisse Silver Sweeney: Right, okay. Well, thank you so much for your time, and thank you so much for explaining the issues so clearly to our audience. We all really appreciate it.
David Matas: Thank you for asking me.
Marlisse Silver Sweeney: Thanks again to David for giving us so much to consider when it comes to balance freedom of expression and freedom from incitement of online hate and harassment.
The CBA’s submission to the Justice Minister’s office on these issues referenced in this episode, is available under episode notes. I’d love to hear your thoughts on these issues.
Tweet to us @CBA_news, or you can reach me at my handle, @Marlissess. We are on Spotify, Apple Podcasts and Stitcher, wherever you listen to podcasts. Subscribe to receive notifications for new episodes and leave us a review.
We also have a podcast in French called Juriste Branché.
Thank you for listening. Stay tuned for the next episode.