“It’s an amazing piece. Just don’t read the comments.”
We’ve probably all heard some version of this. Many of us have come to expect that online content that challenges the status quo in any way—especially content produced by marginalized people—is likely to be met with name-calling, threats, and other kinds of abuse online and offline.
Photo Credit: Hans Vivek on Unsplash
Not long ago, The Guardian conducted a systematic analysis of the 70 million public comments on its articles between 2006 and 2016. Of these, 1.4 million comments were removed for violating community standards. Although the majority of The Guardian’s regular opinion columnists during that period were white men (sigh), the ten writers who received the most abusive comments were eight women (four of them racialized, four white) and two men (both Black, and one also gay). Pieces about feminism and sexual assault were especially likely to draw hateful remarks. And the ten regular writers whose articles attracted the least abuse were all white men.
The situation is not much different in Canada. Five years ago, the CBC shut down commenting on online stories about Indigenous issues due to the sheer volume of abusive and discriminatory content being posted.
When many of those targeted by online hate are being told to suck it up and/or get off the internet, there is little doubt that free expression is being chilled. Usually, it’s marginalized voices—the very voices the world most needs to hear—that hate speech tries to silence.
Ironically, those who oppose regulating discriminatory communications often argue that doing so would violate freedom of expression. They ignore the reality that hateful communications curtail the freedom of marginalized people to participate in public dialogue without fear for their safety.
[L]egal frameworks around hateful communications in BC and Canada are by no means adequate.
The internet can be a hostile and downright terrifying place. And by some accounts, online hate speech in Canada has actually increased six-fold in recent years. At West Coast LEAF, we can believe it. We’ve noticed a sharp uptick in questions from the public about legal rights and options in relation to discriminatory and hateful public communications.
As we argued in our #CyberMisogyny law reform report, and as others have also argued, legal frameworks around hateful communications in BC and Canada are by no means adequate. Still, it may be useful to know about some legal options for challenging hate speech, as these can be one tool among many for fighting for safer and more inclusive spaces, whether online or offline.
Here are a few facts that may be useful:
1) There are several different legal frameworks that apply to discriminatory communications.
For example, sections 318 to 320.1 of the Criminal Code of Canada make certain forms of hate speech criminal offenses, such as hate propaganda and glorification of terrorism. In order for discriminatory communications to qualify as criminal offenses, they must meet a very high threshold: incitement to hatred and willful promotion of hatred.
Section 7 of BC’s Human Rights Code, which is separate from criminal law, also deals with discriminatory publications. Not all offensive publications count as discriminatory under the Human Rights Code—only those that have a very harmful impact on a person or group on the basis of a personal characteristic protected under the Code. According to the BC Human Rights Tribunal (the body that adjudicates complaints under the Human Rights Code), “The intent of the person expressing the idea does not matter. What matters is the likely effect of expressing the idea. Would a reasonable person consider that the expression has the potential to lead to discrimination or other harmful effects?”
2) Help is available for those considering a human rights complaint.
If you’ve been discriminated against in published materials, or in any domain of life covered by BC’s Human Rights Code (like employment, housing, or public services), you can consider making a human rights complaint.
First, you may want to talk with someone who has expertise in human rights law in BC. You can contact the BC Human Rights Clinic run by Community Legal Assistance Society (CLAS), for help to understand your legal options, whether you have a possible human rights complaint, and what you can expect if you do make a complaint and if your case goes to a hearing. You can call the BC Human Rights Clinic at 604-622-1100 in the Vancouver area or toll-free at 1-855-685-6222, or you can email for information about legal services at firstname.lastname@example.org.
There is a time limit of one year after the most recent incident of discrimination to file a complaint at the BC Human Rights Tribunal. There can be special situations where this time limit is extended, so you can talk to the BC Human Rights Clinic to find out your options even if more time has passed.
Denying the legitimacy of trans identity allows the conditions for discrimination to flourish because the rights of those who do not exist, by extension, do not exist.
3) The context of systemic inequality can factor into the BC Human Rights Tribunal’s understanding of discriminatory publications.
A prime example: the Tribunal’s decision in a recent case brought by Morgane Oger, BC’s first openly trans political candidate, against Bill Whatcott, who tried undermine her campaign by mass-distributing a hateful flyer. Whatcott’s flyer was full of toxic stereotypes about trans people and claimed that being a transgender woman is an impossibility and a lie.
Whatcott was found by the Tribunal to have violated both subsections of section 7 of the BC Human Rights Code, which prohibit publication of any statement that “indicates discrimination or an intention to discriminate” or “is likely to expose a person or group or class of persons to hatred or contempt.”
The Tribunal found that denial of identity—of one’s very existence—is a devastating stereotype against transgender people and is often at the root of transphobic violence and discrimination. Denying the legitimacy of trans identity allows the conditions for discrimination to flourish because the rights of those who do not exist, by extension, do not exist.
The Tribunal’s decision factored in the social context of deep inequalities impacting trans people, including high rates of violence and significant barriers to housing, employment, health care, and of course, political office. The Tribunal confirmed that determinations of hate speech must consider the larger social context of discrimination.
Photo Credit: Sharon McCutcheon on Unsplash
But let’s be real: not everyone who pursues a human rights complaint ends up with such a positive outcome. And a quick scan of recent cases that have made it to the BC Human Rights Tribunal makes it clear that only a minute fraction of the discriminatory situations that happen every day in BC, online and offline, end up at a hearing.
That’s why we need to keep up all of our strategies for fighting hate: Talking with youth about online harassment and violence. Demanding political change. Taking to the streets. Teaming up with others to challenge online abuse and support survivors. Using social media to push out works by thinkers, artists, and change-makers who aren’t properly represented in the mainstream media. Leaving our own words of affirmation, appreciation, and resistance in the comments.
And sometimes, of course, not reading the comments.
Photo Credit: Jon Tyson on Unsplash
Alana Prochuk manages public legal education programs and loves talking with youth about fighting the culture of online hate as part of West Coast LEAF’s TrendShift workshop. Alana is on an extended break from social media.
Questions? Feedback? Email us at email@example.com