With Justin Trudeau’s new internet bill set to allow judges to imprison offenders for life over online speech crimes, the West is waking up to government overreach which seeks to undermine their constitutional free speech abilities. ‘Life imprisonment’ has an ominous ring to it – particularly when attached to ‘crimes’ such as exercising one’s internationally recognised right to speak. Bill c-63 at 320.1001(1) indicates the following:
“Everyone who commits an offence under this Act or any other Act of Parliament, if the commission of the offence is motivated by hatred based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, is guilty of an indictable offence and liable to imprisonment for life.”
Canada’s Online Harms Act is being touted by officials as legislation that makes social media safer. The truth is, creating a safe digital platform occurs when free speech is protected, and real harms are sentenced, such as crimes regarding pedophilia, trafficking, murder and rape. ‘Speech crimes’ is almost an entirely fabricated concept. The law largely does not recognize ‘crimes’ which do not have material and tangible side effects in reality. That is all beginning to change, and the significance of the shift should not be understated.
Australia’s current law, for example, allows for ample ability to air one’s thoughts, particularly if these thoughts encompass ‘political communication.’ Political communication is protected under the Constitution. It is an implied right arising out of section 7 and 24 of the Constitution which sets the groundwork of Australia’s fair and democratic political system. This system is built on the precepts of democracy; the ability to move freely, associate with whomever one desires, speak freely and vote fairly. Once the right to speech is retracted from citizens, other freedoms disappear as a result. This is why it is important to scrutinize any legislation which seeks to attack or shrink the ambit of free speech. There must always be strong justification for such legislation, and common sense driving it. If the legislation ends up targeting a particular societal group, it’s legality becomes questionable within jurisdictions which purport to operate democratically. Many in Australia had issues with the infamous misinformation and disinformation bill, hence why this bill has been retracted, for now. However, the government has been working on other proposals which will achieve more or less, the same results.
Since the misinformation bill has been scrapped, there have been proposed amendments to the Basic Online Safety Expectations Determination. Under these new amendments, service providers must regulate ‘hate speech.’ Hate speech is not something the law has defined well in the past – it is a nebulous term. It is a relatively new concept, and its definition is laughably broad. The broader the definition, the more a plaintiff or social media company is able to penalise conduct. In the past, the law has recognised the harms caused by defamation, or if the speech comes under the umbrella of ‘intimidation’ or harassment. Hate speech over issues such as political affiliation, race, gender and sexual identity for example, is a relatively new ‘offence’ – hence why legislation is being created to solidify more concrete mechanisms to justify punitive action.
On the surface it seems morally justifiable to regulate ‘harmful speech’ although to do so, you really would need to prove that particular speech caused or is causing real harm. The second thing you would wish to do is minimise this harm using the most preferred and logical mechanisms, before having to involve the courts, or cause unwanted side effects through more forceful methods. Because the other issue with attempting to decide on appropriate punitive or regulatory mechanisms, is the fact it will have unwanted or ill-proportioned side effects which may outweigh any benefits of the policies.
Involving the courts or third parties in matters which can be dealt with in other more efficient ways, is questionable. There are far more innovative ways to prevent unintended harms online caused by speech, than asking third parties to regulate issues in a manner which may be draconian in a democratic system.
Harm is not something you can measure or quantify easily without there being some form of physical side effect arising out of the said harm. Even mental harm is not a concrete concept unless it results in physical incapacitation or suffering. Some forms of psychological abuse can result in real physical harm. Other types of mental harms are less concrete to observe or tangibly measure, and one does need to question whether causing mental harm to someone that is not so significant as to cause some physical reaction or outcome, is enough to justify their severe online incapacitation, incarceration or life imprisonment. Hate speech in a world full of real physical crimes, is beginning to look like a phrase used in a society that is demonstrating an inability to cope with untactful remarks, which a person can choose to simply ignore. If a person allows themselves to be victimised by online hate speech, the burden of proof should lie on them to evidence how the remarks have caused particular harm insofar that it justifies court action or complete and sustained censorship. Even on social media, there are several mechanisms one can employ to limit exposure to what would be classified as ‘hate speech’, before reaching a stage where a person feels so victimised by behavior that they desire to take someone to court or have them completely wiped off the internet. Blocking, unfriending or ignoring content where people ‘upset you’ is the logical thing to do, rather than demand this person is regulated by government to the degree that their entire profiles are wiped, or speech is banned, when it could be of benefit to others in society. The nature of controversial speech online is that it often is not an issue that upsets the majority of people in the room. It may upset a few, but not all.
This is key to determining the appropriate response to ‘hate speech’, if one can even objectively define what that is, in any given scenario.
The reality of this ‘hate speech’ debate is that progressives are largely the ones advocating for legislation to regulate speech. This is occurring in tandem with the rise of conservative channels on social media to make up for where they are largely being censored in institutions, mainstream media, the workplace and elsewhere. Logic indicates that the legislation will inherently target conservatives who are finding their voices being stunted. The policies are therefore likely to do damage to Australia’s overall democratic functions and unnaturally condition society to accept only one side of a two-pronged narrative. Will the new amendments actually quell ‘hatred’? Hardly. Attempting to censor political dissent often has the effect of making the dissent more persistent, even more outspoken and vehement, come election time.
Censorship models are used before communist takeovers, or totalitarian regimes, right throughout history. The progressive side of government tabling legislation and policies which aim to target alt media therefore indicates the left is beginning to slip into tyrannical territory. It would be more prudent for the government to promote campaigns which seek to promote tactful online behavior, and tolerance of diverse socio-political cultural views, rather than use tax cash to promote a far more authoritarian, and less appealing paradigm which is beginning to result in raised eyebrows from many.
The old adage ‘the truth will prevail’ should be given far more credit than the current government is giving it. Bad ideas simply die out, and beneficial ideas generally are self-evident, which is why they last the test of time. Heavy and unjustified censorship models which are likely to create civilian unrest, is most likely not the wisest way to go. In fact, it may be one of those said bad ideas. Any new developments to regulate speech should therefore be heavily scrutinised and dismissed unless there is clear logic driving it, and an appreciation for the historical legal framework of this nation which has generally favored ample freedoms, to preserve true equality before the law.
