Could you be held legally responsible for hateful online comments in Canada?

Computer button spelling the word "Hate" in internet slang.
Computer button spelling the word "Hate" in internet slang. Shutterstock

Be honest. Have you ever commented on an online news story and asked yourself: “Did I go too far?”

Sure, you gave yourself a nickname, but it’s not like those posts can’t be traced. However, it seems people are often willing to make hateful comments online for which they are not really held accountable.

That seems to be the case with one CBC News story, in which the broadcaster recently made the decision to shut off the comments section on stories about indigenous people. Apparently the comments were so “hateful and vitriolic” that the moderators were struggling and felt the only way to handle the situation was to shut down commentary altogether.

While they were praised for turning off the comments, what is being done about the hateful comments after the shut-down?

On Nov. 30 Brodie Fenlon, acting director of digital news at CBC News, said in his Editor’s Blog that: “We hope to reopen them [the commentary section] in mid-January after we’ve had some time to review how these comments are moderated and to provide more detailed guidance to our moderators.”

Does that mean that CBC News is going to go after some commentators, or is just going to remove hateful comments?

Right now it’s unclear.

However, this case raises an interesting question. Can you be held legally accountable for making hateful comments online?

One big Charter challenge about hate speech and freedom of expression was decided by the Supreme Court of Canada in 1990.

In the case of R. v. Keegstra, the Supreme Court ruled that James Keegstra, a school teacher in Alberta, had committed hate speech and upheld his criminal conviction. Keegstra was teaching anti-Semitic opinions to his students.

Keegstra had challenged his criminal conviction all the way to the country’s top court on the basis of s. 2 (b) of the Charter, claiming he had the right to say and teach what he wanted because he had freedom of expression. While the Supreme Court agreed there is freedom of expression, it also said there is a limit on that freedom and that freedom is breached when the expression is hate speech against a group.

With the growth of the internet and expansion of social media since 1990, a lot of communication is now online. So how is online hate speech treated?

Well, Keegstra was upheld in a recent case of a B.C. man who had his own online blog that contained hate speech and conspiracy theories against Jews. In R. v. Topham, the Supreme Court of British Columbia held that Roy Topham was guilty of promoting hatred against “an identifiable group” contrary to s. 319(2) of the Criminal Code of Canada.

Even though in B.C., the Topham case is only the second internet hate crime conviction since 2006, the point is that if you commit hate speech online you may be held criminally liable — and that applies to all of Canada.

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