Queen's Human Rights Bulletin
Volume II, Issue II; January 2006
The Zundel Case (1990)
Do websites have the right to expose a religious group to hatred or contempt ?
In 1996, two complainants, the Toronto Mayor's Committee on Community and Race Relations and Sabina Citron, both filed complaints claiming that Ernst Zündel had breached s. 13 (1) of the Canadian Human Rights Code by posting, on a website, material that was likely to expose Jewish people to hatred or contempt. Zundelsite was a revisionist web site that posted documents, with such titles as "Did Six Million Really Die?", "66 Questions and Answers on the Holocaust", and "Jewish Soap", which negated the truth of the holocaust and accused Jewish people of having fabricated the story in order to profit from post-war reparations. In his defense, Zündel used the wording of s. 13(1) to demonstrate that the Canadian Human Rights Act did not have jurisdiction over websites because they were not comprised of audible data sent repeatedly via a federally regulated telephone network. Instead web sites were composed mostly of visual data posted only once on a website via the internet. Even if s. 13(1) did embrace websites, Zündel claimed that he could not be found liable for the material posted on Zündelsite, because the website was the property of an American webmaster named Ingrid Rimland. Finally, he claimed that s. 13 (1) was unconstitutional, because it denied individuals the right to freedom of speech that was guaranteed in the Canadian Charter of Rights and Freedoms. [Citron v. Zundel (No4) (2002), 41 C.H.R.R. D/272 (C.H.R.T.]
Did Zündel repeatedly communicate, or cause to be communicated, material posted on Zündelsite?
Was this material communicated in whole or in part via a federally regulated telephone network?
Does the material posted on Zündelsite expose members of a group to hatred or contempt on the basis of religion?
"Given that s. 13(1) of the Canadian Human Rights Act offends the Charter of Rights and Freedoms, is the section saved by s.1 of the Charter" (D/313)?
Would a cease and desist order be of any real use?
yes, in this case.
yes, but in a limited way
S. 13 (1) of the Canadian Human Rights Code does not require that the sender of material "own" the medium through which the material was sent. It requires only that he control it by "communicating or causing to be communicated" the material in question. The Tribunal found that Zündel controlled the Zündelsite and that it was he who caused the materials on the site to be communicated because of the following evidence: the use of his family name in the title and the logo of the site; the use of the first person singular "I" throughout the site; the provision of Zündel's home address and email address; the authorship of a set of articles called "the Power letters"; as well as letters from his wife attesting to his control of her writing; and from the webmaster complaining of her secondary role in the administration of the site.
In order to be embraced by s. 13(1) of the Canadian Human Rights Code, three conditions must be met: 1) the material posted on the website must be sent telephonically; 2) through a federally regulated telephone network 3) and repeatedly. The testimony of experts in the field of communications demonstrated that in 2002, the internet operated mostly over the telephone network. At the time of the hearing, about 95% of internet users accessed the Internet by telephone dial up through a modem. The Tribunal was therefore satisfied that the material displayed on Zundelsite was communicated telephonically. Although it is possible that some Canadian users connected to the Zündelsite via cable, satellite, or wireless connections, evidence showed that 95% of Canadian Internet users used modems to connect to local internet service providers within the federally regulated telephone network. Therefore, the tribunal found that the material communicated on the site was within the legislative authority of Parliament. Finally, the tribunal found that "the very nature of the internet makes repeated communication inevitable and deliberate". Even though the webmaster posts the information once, the site is accessed multiple times by multiple users.
Using the expert testimony of two discourse analysts who studied the material on the site, and applying the definitions of hatred (extreme ill-will) and contempt ("looking down upon" or "treating as inferior") used in Nealy v. Johnston, as well as the definition of the consequence of exposure to hatred or contempt (arousal of "unusually strong and deep-felt emotions of detestation, calumny or vilification") used by the Supreme Court of Canada in Taylor, the Tribunal found that the themes on Zundelsite (the falsity of the holocaust/vilification of the Nazis, and the Jewish conspiracy to hide the truth in order to collect reparations) and the inflammatory rhetoric (detestable tone and negative stereotypes based on religious and cultural associations) exposed Jewish people to hatred and contempt within the meaning of s. 13(1) of the Code.
The Tribunal found that s.13(1) of the Code has the effect of abridging Zündel's right to freedom of expression and breaches s 2b of the Charter. However it was saved under s. 1 of the Charter. "[...]The use of s. 13 (1) of the Act to deal with hateful telephonic messages on the Internet remains a restriction on the respondent's freedom of speech which is reasonable an justified in a free and democratic society." (D/330)
Queen's Human Rights Bulletin - January 2006 - Queen's Human Rights Office