Upholding human rights is not censorship

TheStar.com – comment – Upholding human rights is not censorship
February 07, 2008
Naseem Mithoowani, Khurrum Awan and Muneeza Sheikh

Human Rights Commissions have a mandate to address the very real problem of speech that subjects identifiable communities to hatred or contempt.

On Dec. 4, we announced that we had launched human rights complaints in Ontario, British Columbia and Ottawa against Maclean’s magazine for its refusal to publish our response to its October 2006 article, “The Future belongs to Islam.” This article claimed that due to lax immigration requirements and multiculturalism policies, Muslims are poised to take over entire Western societies and subject them to Islamic law, with the only question being “how bloody the transfer of real estate would be.”

Our case – and a similar but unrelated one in Alberta – has sparked a lively discussion on the role of human rights commissions, and whether individuals have a right to respond to what they believe to be defamatory media publications.

It is our position that HRCs’ jurisdiction in cases of hateful speech extends to defamatory media publications.

The notion that HRCs should have no role to play vis-à-vis the media presumes that there are no human rights implications attached to public media representation of identifiable communities.

On the contrary; the impact of biased and/or misleading media portrayals on the social perception of these communities – whether black, aboriginal, Hispanic, Muslim, Arab, evangelical Christian or others – has been well documented and is not a subject of dispute.

In the case of the Muslim community, however, media misrepresentation and the ensuing growth of Islamophobia since 9/11 have been significant. For instance, the 2003 report of the United Nations Special Rapporteur on contemporary forms of racism, found that improper media coverage after the 9/11 attacks contributed to the perception that Islamophobia is now more widely accepted as normal in the West, “not only among the common people, but also, and more openly, among certain elites, who at times seemed to adopt it as an ideological or even aesthetic position.”

We believe that the human rights implications of media speech fall properly and squarely within the mandate of the HRCs, for as independent, quasi-judicial bodies, they possess the authority to adjudicate human rights concerns arising from the actions of private, non-state actors.

Recent concerns that this mandate may result in government censorship are woefully uninformed. HRCs operate within the principles of law laid down by the Supreme Court of Canada. These principles guarantee an appropriate level of independence in light of the commissions’ adjudicative functions and provide for the judicial review of tribunal decisions by our courts.

In fact, the government itself is often the subject of complaints heard before the HRCs. More than 50 per cent of the complaints received by the Canadian Human Right Commission, for instance, name a federal department, agency or Crown corporation as the respondent.

Moreover, our human rights codes are a less restrictive and more effective means of dealing with the human rights implications of media misrepresentation than alternatives currently available under our criminal and civil law processes.

In the 1980s, Alberta school teacher Jim Keegstra was charged under criminal hate speech laws for regularly indoctrinating his students with Jewish conspiracy theories. When Keegstra challenged the constitutionality of the law, Canada’s Supreme Court, in a majority decision, upheld the criminal provision as a reasonable limit on free expression. Noticeably, both majority and dissenting opinions in that case cited the virtues of the hate speech provisions of our human rights codes as an alternative to criminal provisions.

Then Chief Justice Brian Dickson observed that human rights statutes were a “less severe and more effective response than the criminal law” to hate speech because they adopted a “less confrontational approach.” In her dissenting opinion, current Chief Justice Beverley McLachlin noted that human rights legislation “focusing on reparation rather than punishment” is “more appropriate and more effective” in addressing hate speech than the “criminalization of expression.”

Much of the ongoing debate about the role of HRCs with respect to media misrepresentation of specified communities is, however, quite abstract in relation to facts on the ground.

In practical terms, most individuals and communities would prefer to submit their concerns to self-regulatory bodies of the media industry. These bodies, commonly referred to as press councils, are independent consortiums of the journalism industry and provide an avenue for hearing and addressing readers’ complaints. Subscribed to by prominent media organizations like the Toronto Star and the Globe and Mail, these councils have the mandate to chastise subscribing organizations when their publications fall below the ethical and normative standards of the journalism industry.

Unfortunately, membership in press councils is voluntary and some prominent media organizations have chosen not to subscribe. But some of these non-participating organizations do not provide an alternative avenue of complaint, either. In such situations, the only avenue available to people and groups who feel threatened by certain media publications is to submit their concerns to the HRCs. Faced with a similar dilemma, we had no option but to bring our issues with Maclean’s to the attention of the HRCs.

But what about the fundamental democratic right of free expression? Should sensitive topics be taken off the table because discussing them may provoke the sentiments of a particular community? Absolutely not. As citizens of a free democracy, we need to have faith in the “free marketplace of ideas”; we need to trust the power of more and better speech to defeat the harm of discriminatory and hateful speech.

However, we can maintain this faith only if ordinary citizens are given the opportunity to participate in the marketplace of ideas. This in turn places a significant responsibility on our media organizations – as the primary facilitators of national discourse – to include the views of identifiable communities when those communities are the subjects of discussion.

If our media were to assume this responsibility, we would no longer have to live with an awkward trade-off of free speech for the rights of minorities in our multicultural society. If, however, our media exclude the communities in question while providing extensive coverage to negative views about those same communities, the results are evident and inevitable: more prejudice, discrimination and prejudicial stereotyping.

In our case, we have filed human rights complaints not because Maclean’s published 19 articles about Muslims over two-and-a-half years that we judged to be defamatory, but because it refused to publish an adequate counterview when the Canadian Muslim community asked for one.

The core issue here is the right of identifiable communities like ours to participate in the national discourse on concerns that relate directly to us; it is emphatically not about censorship. Since 9/11, the Muslim community has done plenty of serious listening and we will continue to hear the concerns of our fellow citizens. Now, however, it is our turn to speak as well. And we believe that Canadians would like to hear from us.

The authors are members of Osgoode Hall Law School’s Class of 2007.

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