Law changes to combat online hatred, harassment
The recent mandate letter from the prime minister to the attorney-general requires him to develop legal remedies for victims of hate speech and to combat online hate and harassment. Hallelujah!
Vicious online spewing of misogynistic, racist and religious hatred has infested social media. The level of misogyny expressed by online trolls is a blight on our public discourse. The sexist slurs and threats against women politicians are flagrant and disgraceful. It is time we dealt with all of it.
Here are some possible ways to change our laws to give the police and courts and individuals the tools to deal with online hatred and harassment.
Stalking: The existing stalking laws (also known as criminal harassment) are intended to prevent in-person following, watching, communicating with and otherwise engaging in threatening and fear-inducing conduct. A jail sentence of up to 10 years is possible.
Let’s amend the federal Criminal Code to specifically add online stalking conduct as a criminal offence, just as Manitoba did in 2016 for provincial offences when it became the only jurisdiction in Canada to include “using the internet or other electronic means to harass or threaten the other person.” While it is a Criminal Code offence to repeatedly communicate “either directly or indirectly,” the word indirectly in itself is not sufficient to enable the current law to be used to prevent online stalking.
Hate crimes: Since 1970, Canada has prohibited hatred on the basis of “colour, race, religion or ethnic origin.” By 2017, the definition of identifiable group was expanded to include sex, sexual orientation, gender identity or expression as well as age and mental or physical disability.
And incitement of hatred was added as an aggravating factor for sentencing purposes if there was evidence that “the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor.”
The welcome 2017 changes included for the first time misogyny (“a dislike of, contempt for, or ingrained prejudice against women”).
The language currently used in the Criminal Code does not clearly prohibit online hate crimes. While the public incitement of hatred includes “communicating statements in any public place,” the actual definition of “communicating” is too vague — “communicating by telephone, broadcasting or other audible or visible means.” And “statements” include electronic recordings but do not specifically include transmission by email and internet.
We need clear and unambiguous language in the Criminal Code to allow individuals to complain to the police and give the police the right to lay charges.
Defamation: The vitriol expressed online may also be defamatory and affect the victim’s reputation, but that would not now be considered a crime. One could sue in a civil court, where defamation cases are tried by a jury. The remedy is monetary damages, which have to be proven and then collected. While there have been a few cases where such abusers have been ordered to pay substantial damages, it’s a costly remedy.
However, there is a crime called “defamatory libel.” It applies mostly to defamation published in newspapers, and is defined as a matter published that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, and it exposes the perpetrators to two to five years in jail.
I think the law of defamatory libel could be expanded to include online defamation of individuals. It could be expanded even further by defining online digital platforms like Facebook, Twitter and others as publishers, just as newspapers are, and give them the same responsibility to avoid publishing libelous content knowingly.
Anonymity: In order to make these changes more effective and deal with the trolls, we should ban anonymity on the internet. It is time to insist that people use their real names online, so that they can be located and made to be legally responsible for their online expression of virulent hatred and harassment.
It is time the federal government enacted legislation to protect its citizens from the negative aspects of our cyberuniverse and improve and strengthen the law to deal firmly with online stalking, hate crimes and defamation.
Linda Silver Dranoff is a lawyer and author of “Every Canadian’s Guide to the Law.”