The strength of the controversies over the conflict in the Gaza Strip shows the importance of separating what constitutes support for criminal acts from what constitutes the expression of a point of view that shocks. When positions are polarized, each side is quick to accuse the other of spreading hatred. The laws of democratic countries cannot be based on such shortcuts.
We live in a world where freedom of expression is valued as much as respect for human dignity. This shows the importance of upgrading the processes for applying laws prohibiting the spread of hatred. Crises are opportunities to see why we need to equip ourselves with good tools to separate hateful comments prohibited by law from those who express a legitimate critical opinion.
It is not easy to distinguish hate speech from one that expresses an opinion — which one is not required to share — on a divisive issue. However, it is during tense situations that it is necessary to quickly distinguish between what constitutes the propagation of hatred and expressions of opinion regarding a controversial issue.
Within the meaning of the law, hate speech is that which expresses words that incite reasonable people to hate the members of a group. It is not a statement that is “felt” as hurtful or that upsets a person by offending their beliefs or sensitivities.
Laws that protect against hate speech must be consistent with freedom of expression. For this reason, they are written and interpreted in order to require an in-depth analysis of the meaning and context of the remarks. In its Whatcott decision, the Supreme Court of Canada explains that, to determine whether a statement is hateful, one asks whether “a reasonable person informed of the relevant context and circumstances would consider, from an objective point of view, that the remarks expose or are likely to expose members of the targeted group to hatred.”
During such an exercise, the judge must hear the parties concerned and “disregard his personal opinions and decide according to what he understands to be the rational opinion of an informed member of society who considers the matter of realistic and practical manner.
A statement can be considered hateful only in cases where the denigration is extreme and blatant. Careful consideration should be given to the context in which the statement is made and whether it is likely to expose the targeted person or group to hatred by others. The repugnant nature of the ideas expressed is not sufficient, in itself, to justify punishing their expression by law.
The Court recalls that “the ban on hateful speech is not intended to censor ideas or force anyone to think “correctly””. Because “remarks which, although repugnant and offensive, do not incite execration, denigration and rejection which risk leading to discrimination and other harmful effects do not constitute hate speech within the meaning of the law “. In short, it is not because we find comments deplorable that they are necessarily hateful.
The Court agrees that “representations which demean a minority group or which attack its dignity through jokes, taunts or insults can be hurtful”. Many forms of expression can inspire feelings of disdain, but as long as they do not expose the targeted group to hatred, they remain protected by freedom of expression. The line between hateful speech and simply hateful speech is crossed when the speech is likely to cause a reasonable person “informed of the relevant context and circumstances” to hate members of the targeted group.
Wrongfully designating as hateful any comments that offend sensitivities does not advance the fight against the spread of hatred. Rather, we must give ourselves the means to act effectively and quickly to combat the spread of comments that incite people to hate or attack people because of their race, their religion, their skin color, their sex or sexual orientation.
Words and images travel very quickly. We do not have the luxury of waiting months and years before determining whether something is hateful or actually constitutes harassment.
Once we agree on the need to fight against hatred, we must increase the capacity to fight against truly hateful speech. It is urgent to give priority to the implementation of laws and especially online systems to quickly uncover and eliminate harmful practices. The establishment of obligations to identify the risks to which those who use social networks or other platforms are exposed, as well as investments in the development of cybercourts, are essential if we seriously want to take action against those who spread hate speech.
Professor, Pierre Trudel teaches media and information technology law at the University of Montreal.