Freedom of linkage and hatredIan | 21 October, 2011 | 05:00
It seems like liberals (of the traditional variety) have reason to celebrate Canada’s current Supreme Court bench.
First, the Court ruled unanimously that Insite, Vancouver’s Safe Injection Site, could not be shut down as the evidence clearly demonstrated that the facility was saving lives.
Now, the Court has also ruled unanimously that a mere hyperlink cannot count as libel. This gives more room for bloggers who were at risk of lawsuits for using a link to make an additional editorial point.
The decision has a qualifier (as any good ruling should):
However, if a post linking to another site itself contains defamatory material, the poster may be liable in a defamation action.
Basically, if you copy something that defames someone onto your own website, you’re still liable for libel.
This is likely welcome news for fellow-Vancouver blogger Crommunist who is hoping to see the Court strike down our Hate Speech laws in their next big case. I must admit that he’s likely to get his wish, given that Chief Justice Beverly McLachlin wrote the dissenting opinion to the 1990 Supreme Court ruling that had upheld our current laws.
Overall, I don’t believe we ought to be tossing away all anti-hate legislation in favour of a free speech for the loudest approach. Speech can have consequences. While bullying and harassment are already crimes, I believe we ought to be striving for something better as a society. Michael De Dora argues on Rationally Speaking that we can and should legislate morality:
Broadly speaking, morality is the domain of one’s thinking — beliefs, attitudes, and feelings — about the well being of conscious creatures. It concerns right and wrong, good and bad, questions of how we should act toward one another, and the kind of people we should want to be. The legal realm (whether a piece of political legislation or a court decision) is where these beliefs, attitudes, and thoughts are societally enacted. In this sense, the connection between morality and legality is natural and inherent.
But there is another reason to enforce moral norms: if your conscience tells you some action may be causing great harm to society, you have both the right and, I believe, the duty to try to help or correct the situation, through both social and political means. In this sense, we should not be afraid of moralizing. Instead, we should be afraid of not moralizing. The consequence of not moralizing is unchecked harm. The consequence of moralizing is potentially a safer environment and perhaps even a more virtuous populace.
He goes on to qualify his remarks (again, as we all should) stating that we need to be careful of false and unreasonable moral beliefs and laws based on preference rather than morality.
In the land of Hate Speech legislation, I believe there is a moral imperative for us to defeat bigotry. Obviously we can’t just legislate it away, but we can target the worst offenses, those that cause measurable harm. It may not be easy to measure the harm, so I believe we ought to err on the side of liberty, but in many cases it’s quite clear cut. When Lorna Pardy was verbally assaulted by a homophobic “comedian” at a Commercial Drive comedy club, the BC Human Rights Tribunal correctly ruled that Guy Earle was guilty of Hate Speech.
Our actions and speech has consequences. We can’t hide behind the Charter when we cause harm to others. Freedom of religion doesn’t grant the right to beat one’s spouse or mutilate their children, and freedom of speech doesn’t give the right to target hate-fuelled discrimination.