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Queen's University
 

The Machiavelli and Associates Case (2002)

Is cyber hate prohibited by the Act?

Facts:

In June 1998, complainant Mark Schnell used a cable connection to access a website called the Citizen's Research Instrument, a website containing several pages equating homosexuality to pedophilia and bestiality.  The website was registered in 1997 by Machiavelli and Associates Emprize Inc and was authored exclusively by John Micka. Over the next few years (until March 2000), Schnell monitored the site bi-weekly before filing a complaint with the Canadian Human Rights Tribunal against the registered company and its author. At the Tribunal, expert witnesses testified that John Micka used two typical strategies for inciting hatred against a minority group: dehumanization (homosexuality = bestiality) and sexual depravity (homosexuality = pedophilia). This hatred could be incited members of both the majority and the minority group.

Micka did not argue about the discriminatory content of his messages. He did, however, argue that his messages had not been communicated telephonically. Schnell, he maintained, had not used a telephone line to connect to his site; he had used a cable line. Therefore, he argued, the information on his website was not telephonically communicated to the complainant. Furthermore, Micka had not advertised his website, or invited members of the general public to visit the site. He had simply uploaded messages without ever actively communicating them. 

Issues

  1. Is the material on the website likely to expose a person or persons to hatred or contempt ?
  2. Is the material on the website communicated telephonically?
  3. Is s 13 (1) of the Act constitutional? 

Rulings

  1. Yes
  2. Yes
  3. Yes

 

Reasoning of the Federal Court Trial Division:

  1. At the Tribunal, two expert witnesses found that the messages communicated hatred. One expert said the author used two typical strategies for inciting hatred against a minority group: dehumanization (homosexuality = bestiality) and sexual depravity (homosexuality = pedophilia). Another testified to the negative effects caused by receiving such a message: the incitement of latent hatred in homophobic people and of self-hatred in gays and lesbians. After hearing this testimony and reviewing legal definitions of hatred, contempt and "exposing", as determined in the Taylor and Nealy cases, the Tribunal decided that the comments in question "speak of extreme ill will, detestation, enmity and contempt towards homosexuals [and] do not admit of any redeeming qualities in gay men or lesbian women. In my opinion, the materials contained in the Offending Pages are likely to expose gay and lesbian persons to hatred and contempt."
  2. Expert witnesses described three ways in which a computer connects to the internet by using the telephone line: 1) by a dial-up connection by 2) an ADSL connection or by a 3) cable connection. By using a cable connection to upload the Website to Uniserve, the complainant had necessarily used the telephone network to access the Internet. As for the uploading/communication discrepancy, the Tribunal discounted the difference between uploading information to the net and communicating information to users of the net; the presence of search robots and engines makes all sites on the net available by a key-word search. The lengthy guest-book (19 pages) on the Machiavelli site proved that the information was being communicated without any publicity or prompting by Mr Micka.
  3. The Tribunal deferred to the Supreme Court ruling in Taylor and proclaimed the s.13 of the Act to be constitutional. He considered only the two things that had changed since the Taylor case: 1)  Taylor dealt with discriminatory phone messages whereas this case dealt with discriminatory website messages and 2) amendments to the Act (which now allowed financial compensation and the imposition of a penalty) had made s.13 less conciliatory and more punitive. The Tribunal, however, decided that the analogy between phone messages and internet messages was sufficiently clear, and the added burden of proof imposed upon the complainant in the amendment was sufficiently fair. There was no need to revisit the question of constitutionality. 
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