Great flibberty jibberty. I sure am grateful that there are smarter people out there than me. I sure would hate to be left to my own devices to make my way in the world and understand, you know, stuff. So it is with appreciation and relief that I read the news today that the media might soon be under the guiding hand of a national content watchdog according to a submission from the Ontario Human Rights Commission to the Canadian Human Rights Commission:
The media’s freedom of expression comes with a duty to “address issues of hate expression, and [media] should do so either voluntarily through provincial press councils, or through statutory creation of a national press council with compulsory membership,” the report reads. “At the same time, the OHRC recognizes the media have full freedom and control over what they publish. Ensuring mechanisms are in place to provide opportunity for public scrutiny and the receipt of complaints, particularly from vulnerable groups, is important, but it must not cross the line into censorship.”
Hmmm. That’s not what I expected. I thought this would be, you know, based on law. But what is that? Where is that “duty” from. Duties are not just made up you know. The footnote to the OHRC submission right at that spot reads:
UN treaty bodies such as the Committee on Civil and Political Rights have stated through their interpretive “Comments” that human rights treaties such as the International Convention on Civil and Political Rights convey positive obligations on signatory States to take immediate and progressive measures including refraining themselves from making any hate propaganda (see for example ICCPR Committee Comment #11).
So a committee of an international bureaucracy has commented on the text of a treaty and come up with an idea that should be adopted in Canada as the equivalent of a duty which limits to some degree or another the freedom of speech. How wacky. Not what I had imagined at all. What can this mean? Let’s see. The “ICCPR” is the International Covenant on Civil and Political Rights. But I can’t seem to find the comments, let alone Comment 11. This page, however, seems to have it if you scroll down a bit where we learn that Comment 11 relates to Article 20 which states:
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
That’s interesting and sensible. There ought to be a law! And that is what Comment 11 says at section 2:
In the opinion of the Committee, these required prohibitions are fully compatible with the right of freedom of expression as contained in article 19, the exercise of which carries with it special duties and responsibilities. The prohibition under paragraph 1 extends to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations, while paragraph 2 is directed against any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, whether such propaganda or advocacy has aims which are internal or external to the State concerned… For article 20 to become fully effective there ought to be a law making it clear that propaganda and advocacy as described therein are contrary to public policy and providing for an appropriate sanction in case of violation.
See, it actually does say “there ought to be a law.” And you though that I was making it up. And, fortunately, Canada has a law. It’s called the criminal code. It is a law that provides for an appropriate sanctions in cases of violations. And the Criminal Code of Canada has a specific one on the question of hate law. It’s right there at section 319. Perfect. Duty fulfilled. The treaty says we need a law to deal with this stuff and we have it. Hooray for Canada!
But I don’t see where it says we need a national press oversight body. That isn’t in the authority cited for the principle. It actually says in the submission of the OHRC that:
Striking this balance between different forms of rights is important and necessarily has some legal parameters. Hate expression against identifiable groups is undeniably a human rights matter and should be confronted through human rights law, not just criminal law. But a perfect balance cannot be legislated. It’s also an active process that all individuals, organizations and institutions in society are obliged to go through; a process that must include being open to public debate.
Where is the authority for that? Where is the authority for the idea that hate expression against identifiable groups is undeniably a human rights matter? And where is the authority for the implicit accusation that the Criminal Code is not open for public debate? It may be out there but it is not provided. It also is couched in the sort of insecure language – “undeniably” and “should be” – that makes one wonder if it is actually out there just waiting to be cited. This is pretty unsatisfactory stuff. A constitutional right is balanced off against a comment in a treaty obligation discussion which does not even support the principle to which it is stated to relate. Then it is extrapolated from to state that the obligation isn’t good enough. And an underlying tone that the legislative branch is not about public debate. Weird.
That is a whole lot of sliding and sledging and slipping for me. It may well be that there is a case for some of all of this. I am not one of those Chicken Littles who obsess about hate speech and human rights. But it would be nice if the underlying factors supporting the cause were put in a way that could be read without scratching one’s head.