Queen's Human Rights Bulletin
Volume II, Issue II; January 2006
The Kyburz Case (2003)
Do websites have the right to expose members of a group to hatred or contempt on the basis of religion?
In March 2001, Richard Warman, an employee with the Federal Court of Canada, discovered Patriots on Guard, a website authored by Fred Kyburz which contained anti-Semitic articles and discussions. In April, when Warman informed the site's Internet Service Provider [ISP]about the nature of the materials posted on the site, it was shut down. Within days, however, the site reappeared on another ISP. Warman continued to pursue this matter until the site was permanently shut down in January 2002. In the year it took for Warman to shut down the site, Kyburz sent Warman a number of emails and posted a number of documents accusing Warman of being part of a Jewish conspiracy to stifle the voice of truth and justice. On February 5, 2002, Warman filed a complaint with the Canadian Human Rights Commission. The following month, Kyburz established a Patriots on Guard web forum where one of the key subjects of discussion was Warman's human rights complaint and Kyburz's retaliation against it. This included a campaign to ruin his career, to tarnish his reputation and to end his life. Warman's original complaint was therefore amended, soon thereafter, to include a complaint against retaliatory measures taken against Warman for filing a human rights complaint. A Canadian Human Rights Tribunal heard the case and made a ruling in 2003 [Warman v. Kyburz (No.2) (2003), 46 C.H.R.R. D/425, (CHRT 18)].
Did Kyburz repeatedly communicate, or cause to be communicated, material posted on the website called Patriots on Guard?
Were these messages communicated in whole or in part by means of a telecommunications undertaking within the legislative authority of Parliament?
Does the material posted on Patriots on Guard expose members of a group to hatred or contempt on the basis of religion?
Did Kyburz retaliate or threaten to retaliate against the complainant, Richard Warman?
Rulings and reasoning
The Tribunal found that the website was registered in Kyburz's name, that the homepage declared the site to be the property of Kyburz, that each Daily Information Page (DIP) contained a notice soliciting membership to a monthly newsletter, the fees for which were to be sent to Kyburz at his post office address in Alberta. This evidence shows that Kyburz was the proprietor of the website and that he communicated, or caused to be communicated, the material posted on it. A visitor counter indicated that as of Sept. 2001, over 60, 000 people had visited the site. Therefore, the information was communicated, or caused to be communicated, repeatedly. It does not matter that it was communicated passively through user hits.
The Tribunal found that this case is analogous to Zündel, where the Tribunal found that internet communication occurs, in large part, via the federally regulated telephone network. It also points out, however, that the Canadian Human Rights Code was amended in 2001, following the proclamation of the Anti-Terrorism Act, to include all forms of internet communication. It no longer matters whether material on the website is transmitted telephonically.
Using the definitions formulated by Taylor and approved by the Supreme Court of Canada, the Tribunal found that the material on Patriots on Guard exposed Jewish people to both hatred (a malicious ill-will towards the other, who is seen as having no redeeming qualities) and contempt (a moral positioning that places the other in a position of inferiority). The documents employed accusatory rhetoric against Jewish people. One article accused Jews of being slave-traders, child pornographers or supporters of child pornography, and media dominators, all of whom should be slaughtered. Although Kyburz was not the author of this article, he did cause it to be communicated on his website, which is all s 13 of the Code requires. Other documents, of which Kyburz was the author, support these accusations, and add a plethora of analogous accusatory stereotypes: Jews as liars (who grossly exaggerated the number of Jews killed in holocaust), as the spawn of Satan, destroyers of property and life, war mongers, world domination conspirators, terrorists and abortionists. After hearing about Warman's complaint, Kyburz dedicates many pages to the assassination of his adversary's Jewish character.
The Tribunal found that Kyburz retaliated against Warman for filing a human rights complaint against him. He wrote a letter to his employer, demanding that Warman be dismissed immediately. He posted messages that attacked his character and his actions, threatened to start a campaign of flyers that would ruin his life and career and threatened to file criminal charges against him. Finally, he threatened his life indirectly by calling him a terrorist and stating that all methods must be considered to rid Canada of terrorists and by referring to a recent killing followed by an observation that Kyburz had been "noted".
Queen's Human Rights Bulletin - January 2006 - Queen's Human Rights Office