Russian aggression against Ukraine makes the difference between totalitarian censorship and the democratic imposition of limits on freedom of expression visible. Russian legislation prohibits the dissemination of information that contradicts government “truths”! Russian law makes anyone who publishes information contrary to the government authorities’ version liable to long prison sentences. It is an emblematic law of the draconian side of this totalitarian state.
Meanwhile in Canada, the parties represented in the House of Commons have called for the suspension of the Russian government channel RT. This channel is accused of broadcasting war propaganda seasoned with hate speech against the Ukrainian population. But in Canada, unlike the laws of Vladimir Putin, the government does not have the ability to decree that only information consistent with its version of reality can be disseminated.
There are always limits to freedom of expression. What distinguishes a democracy from an autocratic regime is the existence of a transparent and independent process. A process for determining whether a statement can, in the name of protecting human dignity or other values, be removed or prohibited. A process for determining whether a limit on expressive activity is reasonable.
The calls for the banishment of the RT TV channel in the pay of Vladimir Putin remind us that there are circumstances where we must ask ourselves whether content should be kept on the air or online. Currently, this channel is on the list of approved non-Canadian services. The ability of distributors to offer it to their subscribers is “a privilege [pouvant] be withdrawn”, had explained in The duty from February 26 the Radio-television and Telecommunications Commission (CRTC).
The CRTC maintains a list of foreign services which may, at the option of cable operators, be made available to subscribers. CRTC regulations provide that cable operators may be required to withdraw a programming service from their offer if it is found to contravene the requirements set out in the Broadcasting Act. Following the invasion of Ukraine by Vladimir Putin’s army, the CRTC announced the holding of hearings to determine whether the RT channel can remain on the list of television services available in Canada. This is precisely a public process where the arguments that may justify banning the Russian RT service on Canadian territory will be examined. This is how Canadian broadcasting legislation distinguishes between what is prohibited by law and what is protected by freedom of expression.
Because differentiating what is the legitimate expression of a political position from what constitutes hate speech or fraudulent deception requires consideration of the context of the statement. Such a separation proceeds from an approach very far removed from that of certain pressure groups which may find it in their interest to maintain confusion between the remarks actually prohibited by the laws and the remarks which they would like to see censored.
Where freedom of expression is respected, the decision to remove content is subject to careful scrutiny. A judge must assess the arguments of those who claim that the content contravenes a rule of law applicable in Canada. To ensure that only content covered by the laws will be removed from broadcast spaces, the evaluation of comments must be carried out in the context of a transparent and independent process.
Unlike legislation in totalitarian states, it is public scrutiny of contested content that can lead to banishment from a television channel. What is alleged against the RT channel is examined by the CRTC, which hears the different points of view and decides with a reasoned decision.
Also on the internet
Currently, the review process for a channel like RT only covers distribution through cable operators like Bell, Videotron, Rogers or Cogeco. To be consistent, current legislation regulating the broadcast of programming in Canada should include effective mechanisms to determine whether a programming service available on the Internet is in violation of the laws.
This is another example of the urgency of updating the laws so that an independent judge can determine quickly, after hearing the parties involved, whether content distributed on the Internet contravenes the laws. This upgrade is slow in particular because some persist in rejecting the idea of a rigorous and public process to decide between what can be available online and what should be prohibited.
The episode of the suppression of the RT propaganda service is a reminder that there is content which is incompatible with our laws and which cannot be tolerated even on the Internet. It also serves as a reminder of the urgency of giving oneself the means to act quickly with regard to information circulating at the speed of light. When we talk about adapting laws to digital issues, that’s also what we’re talking about!