Although the courts have long been faced with the dilemma of how to regulate hateful speech, recent years have seen increasing calls for regulation, inspired largely by the growing prevalence of hateful and contemptuous expression on the Internet. That hateful expression is widely available on the Internet cannot be doubted; for example, it is estimated that literally hundreds of racist websites have sprung up over the last three years, with one leading white power site alone boasting 150,000 visitors over a five-month period.<1> There has been a great deal of debate as to whether traditional legislation and enforcement techniques are appropriate to combat hate speech in cyberspace, where traditional rules of territory and jurisdiction may not apply. This paper describes the convoluted case history of the Canadian Liberty Net litigation, involving crossborder communication of hate messages by telephone, and describes how the principles developed therein might be relevant to the regulation of hate speech on the Internet.

(1) History of the "Canadian Liberty Net" Litigation

In December of 1991, a number of human rights complaints were filed with the Canadian Human Rights Commission (the "Commission") concerning a telephone message system operated in Vancouver by the "Canadian Liberty Net (the "CLN"). Callers to the CLN phone system were offered a menu of telephone messages to choose from, organized by subject. The complainants alleged that the messages being communicated, which included holocaust denials, and warnings of death by "race-mixing," denigrated Jewish and non-white persons, thereby exposing them to possible hatred or contempt in violation of section 13(1) of the Canadian Human Rights Act (the "Act").<2> That section reads as follows:

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunications undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or persons are identified on the basis of a prohibited ground of discrimination.

The Commission conducted an investigation, and recommended that the complaints be referred to a Canadian Human Rights Tribunal (the "Tribunal") for adjudication.

There was no doubt that the Tribunal had jurisdiction under section 13(1) of the Act to consider the complaints filed against CLN regarding the Vancouver-based telephone message system. In fact, the Tribunal went on to hear the case in May and August of 1992, and to render a decision in September of 1993.<3> The Tribunal held that the telephone messages were likely to expose Jewish and non-White persons to hatred or contempt, and that the communication of the messages was therefore discriminatory under section 13(l). As a result, the Tribunal ordered that CLN cease and desist from communicating any messages of the type complained of

However, it is not the final decision of the Tribunal which is of particular interest to those interested in the potential regulation of hate speech on the Internet. Instead, it is one stream of interlocutory proceedings generated by the human rights proceeding, namely the proceedings involving cross-border telephone messaging, that are noteworthy.

Following its decision to refer the CLN complaints to a Tribunal for a hearing, the Commission sought an interlocutory injunction in the Federal Court Trial Division that would restrain the CLN and Tony McAleer, the individual in whose name the Vancouver phone line was registered, from transmitting the impugned messages pending the resolution of the human rights complaints. Mr. Justice Muldoon granted the interim injunction on March 27, 1992, stating in part that:

THIS COURT FURTHER ORDERS that... the respondent Canadian Liberty Net ... by [itself] and/or by [its] servants, agents, volunteers, co-operants or otherwise are hereby restrained, enjoined and prohibited until a final order or disposition is rendered between these parties and persons in the Canadian Human Rights Tribunal's proceeding, from communicating or causing to be communicated by telephonic means any messages which denigrate, disparage or mock persons by reason of their race, ancestry, national or ethnic origin, colour or religion, or just for being who they are...<4>

For Mr. Justice Muldoon, the potential for harm that would exist if the potentially discriminatory messages were allowed to continue outweighed the CLN's interest in continuing its transmissions.

In June of 1992, a Commission investigator phoned the CLN number and heard a recorded message which informed the caller of a new telephone number for the "Canadian Liberty Net in Exile," at which the CLN was allowed to "say exactly what we want without officious criticism and sanction." The new number was located in Bellingham, Washington, USA, and it connected prospective callers to a message system virtually identical to that which had formerly been operated from Vancouver.

On June 15, 1992, the Commission initiated contempt proceedings, alleging that the referral of callers to the Bellingham number constituted a breach of the injunction order of Mr. Justice Muldoon. At the contempt hearing, CLN argued that because the messages had emanated from a source outside of Canada, their communication did not violate the injunction. However, Mr. Justice Teitelbaum rejected this argument, stating the following:

... Mr. Justice Muldoon specifically prohibited Canadian Liberty Net and McAleer from causing to be communicated the prohibited and I say reprehensible messages. I am satisfied that by informing persons to call the Bellingham telephone number, both Canadian Liberty Net and McAleer are causing to be communicated the prohibited and reprehensible messages. (emphasis in original). . .

The evidence is overwhelming, and beyond any reasonable doubt that Canadian Liberty Net and McAleer purposely and methodically arranged to have the prohibited messages transmitted by telephone to Canadians by specifically and purposefully directing anyone who called the Canadian telephone number to call the American telephone number to hear the prohibited messages.

Clearly the Respondents Canadian Liberty Net and McAleer acted in such a way as to interfere with the orderly administration of justice and are thus in contempt of Court.

Mr. Justice Teitelbaum also held that legality of the Bellingham messages under American law was irrelevant to the question of whether CLN was in contempt of court. As to the sentences imposed, McAleer was sentenced to two months in prison and fined $2,500, while CLN was fined $5,000.

CLN appealed the contempt order to the Federal Court of Appeal, which unanimously agreed that CLN had breached the terms of the injunction by encouraging Canadian callers to use the Bellingham message system.<5> As stated by Mr. Justice Linden, the phrase "causing to be communicated" in the injunction:

... requires one to ask whether the appellants facilitated, contributed to or had something to do with the communication of the messages. This they clearly did. The old standby "but for" test used to determine questions of causation yields the same result. In other words, but for the appellants' conduct in Canada, the message would not have been communicated.

The Federal Court of Appeal specifically rejected CLN's submission that it was the caller, and not CLN, who "caused" the message to be communicated. As Mr. Justice Linden noted, section 13(l) of the Act makes it discriminatory to cause hateful speech to be communicated "in whole or in part" by a telecommunications undertaking, indicating that the undertaking need not be the exclusive cause of the communication.

In a separate judgment issued on the same day, the Federal Court of Appeal concluded that the Federal Court did not have jurisdiction under the Federal Court Act or Canadian Human Rights Act to issue injunctive relief in a human rights matter before the Tribunal.<6> As a result, the injunction issued by Muldoon J. was invalid. However, the Court of Appeal went on to hold that CLN had been obliged to obey the injunction order, despite its invalidity. In the view of the Court of Appeal, the court order had to be obeyed until overturned through the appeal process, regardless of whether the order was well-founded.

On appeal to the Supreme Court of Canada, a majority held that, in appropriate circumstances, the Federal Court Act can give the Federal Court the power to grant injunctive relief in matters before the Tribunal in appropriate circumstances.<7> Given that the Tribunal had already rendered a final determination of the human rights complaints by the time the judgment was issued, the majority did not find it necessary to determine whether the injunction had been appropriate in the present case. However, regardless of the validity or invalidity of the injunction, all five Justices who heard the appeal agreed that CLN had properly been cited for contempt. In the eyes of Mr. Justice Bastarache, writing for a majority of the Court on this point, the fact that the Canadian phone line referred callers to the Bellingham number was enough to ground the contempt order, since all that is required for a Canadian court to exercise jurisdiction is that at least part of an offence have taken place in Canada, such that there is a "real and substantial link" between the offence and this country."<8> As stated by Mr. Justice Bastarache:

This case does not even test the outer limits ... There was here an advertisement for a message which violated the terms of the order, and that advertisement was made in Canada, on the very phone line where the offending messages had formerly been available, and this advertisement was done with knowledge of the content of those messages and with knowledge that that content violated the terms of the order of Muldoon J.

(2) How Might the Principles from "Canadian Liberty Net" Apply to the Internet?

One of the key questions regarding the regulation of hate speech on the Internet is that of jurisdiction. For example, given the fact that the Internet is an international network of computers, some authors have expressed doubt that traditional notions of territorial legal jurisdiction can be applied. However, it is submitted that the principles developed in the Canadian Liberty Net litigation at least provide an enforcement mechanism against those Canadian residents who post hateful expression on Canadian Internet servers, and who knowingly advertise, or refer Canadians to, hateful websites posted on Internet servers located in other countries.

Of course, the threshold human rights question regarding the regulation of hate on the Internet is whether section 13(l) of the Act, which deals with "federal telecommunications undertakings," is even applicable. However, given the large and liberal interpretation traditionally afforded to human rights legislation<9>, and the fact that most Internet communication is via modems connected to telephone cables, it seems likely that section 13(l) could be applied to prohibit discriminatory speech on the Internet.<10>

Once it is accepted that the Act applies to the Internet, it seems undeniable that the Tribunal and the Canadian courts could regulate expression posted by a Canadian resident on an Internet server based in Canada. This exercise of jurisdiction would be comparable to that exercised in the Tribunal hearing of the CLN complaints, where the Tribunal considered the content of the messages posted by the resident CLN on a Vancouver phone line. Since all of the constituent elements of the discrimination would have occurred in Canada, jurisdiction could not be disputed, and it seems likely that a Tribunal order could be obtained prohibiting the communication. Furthermore, given the decision of the Supreme Court of Canada, it would be possible to obtain an interim injunction from the Federal Court preventing further communication between the filing and resolution of the human rights complaint.

Similar to what transpired in the Canadian Liberty Net litigation, a Canadian resident subject to an interim injunction or Tribunal order might simply shift his or her hateful expression to an Internet server located outside Canada, then create a website in Canada that would "link" visitors to the foreign site. Arguments could be advanced that the Canadian resident will not have breached the injunction or Tribunal order, since all that will have occurred is that persons "surfing the Net" will have been referred to a foreign hateful site, which arguably lies beyond the reach of Canadian law.

However, it seems clear that an application of the principles developed in the various Canadian Liberty Net decisions would refute this argument. For example, the Federal Court of Appeal stated that where there was an order prohibiting communication of hate speech, yet the speech continued to be communicated from outside the country, a Canadian court could exercise contempt powers over any person in Canada but for whom the discriminatory hate message would not have been communicated. In the scenario described above, communication of the hate message would not occur but for the link provided in Canada by the Canadian resident; as a result, the Canadian resident would be subject to a finding of contempt. Similarly, the Supreme Court of Canada stated that Canadian law would apply where any part of an offence took place in Canada. Since providing the link to the foreign website would be a part of the offence of causing hate speech to be communicated in violation of a Tribunal or court order, the person who posted the link would be in contempt.

A broad reading of the Canadian Liberty Net principles would also apply to prohibit Canadian residents from knowingly advertising for, or providing links to, independent foreign sites that contain discriminatory speech. There does not seem to be any principled basis upon which to distinguish between referrals to self-posted foreign hate sites, and referrals to foreign hate sites posted by independent third parties; in each case, the Canadian resident has contributed equally to the communication of hate speech in Canada.

Furthermore, the notion that local actors can be liable for contributing to the communication of hateful messages in Canada, regardless of the origin of those messages, may provide the Tribunal and the courts with the ammunition needed to combat hate speech posted on the Internet by non residents. Even if there is no Canadian resident who expressly advertises or links to the foreign site, it may be possible to find that the Canadian systems operator of an Internet server has "caused" the foreign hate speech "to be communicated" contrary to section 13(1) of the Act, merely by allowing Canadians access to the site. This would enable the Tribunal to issue a cease and desist order, non-compliance with which could lead to contempt proceedings. Although imposing liability on a systems operator may seem somewhat unfair, given the fact that most systems operators handle more information than they can possibly monitor in advance, such a result may be the only way of restricting access to foreign or anonymous hate speech on the Internet.<11>

(3) Conclusions

In sum, the Canadian Liberty Net litigation indicates that Canadian residents who commit acts contributing to the dissemination of hate speech can be subjected to Canadian enforcement mechanisms for the restriction of such speech, even if the technical mechanism for dissemination is located outside the country. Although the litigation dealt exclusively with telephonic communication, there is no reason to conclude that similar reasoning would not apply to the Internet.

Footnotes

1. Chris Gosnell, "Hate Speech on the Internet: A Question of Context" (1998), 23 Queen's L.J. 369 at para. 17-18

2. Canadian Human Rights Act, R.S.C. 1985. c.H-6

3. Khaki et al.. Canadian Liberty Net (1993),22 C.H.R.R. D/347 (Cdn. Human Rights Trib.)

4. Canadian Human Rights Commission v. Canadian Liberty Net, [199213 F.C. 504 (F.C.T.D.)

5. Canadian Human Rights Commission v. Canadian Liberty Net, [1996] 1 F. C. 787 (Fed. C. A.)

6. Canadian Human Rights Commission v. Canadian Liberty Net, [ 1996]

7. Canada (Human Rights Commission) v. Canadian Liberty Net (April 9,1998) (File No. 25228) (S. C. C.)

8. In support of this proposition, Bastarache J. cited Libman v. The Queen, [198512 S.C.R. 178 at 212-213. 1 F.C. 804 (Fed. C.A.)

9. See Ontario (Human Rights Commission) v. Simpson-Sears Lid., [ 198512 S.C.R. 536

10. Gosnell, supra note 1 at para.27

11. It should be remembered that the purpose of human rights legislation is to end discrimination, even if unintentional, and not to "punish" wrongdoers. Viewed in this light, it seems appropriate that system operators be subjected to cease and desist orders where a Tribunal finds the operator has contributed to the communication of hateful speech: see Chris Gosnell, supra note I at para. 91.

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