Keep Your Hands Off My Internet!

One of the key planks in the Conservative election platform was the omnibus crime bill -- a bill that would combine all of their pre-election bills into one uber-bill.  Much was said about the tough-on-human-trafficking legislation, the tough-on-child-porn legislation, and the tough-on-elder-abuse legislation.  Not so much was said about the tough-on-internet-hyperlinks legislation.

According to the Library of Parliament's Legislative Summary to Bill C-51 clause 5 of the bill

"provides that the offences of public incitement of hatred and wilful promotion of hatred may be committed by any means of communication and include making hate material available, by creating a hyperlink that directs web surfers to a website where hate material is posted, for example."

That is the summary.  Here is what is actually being changed according to the text of Bill C-51:

5. The definition “communicating” in subsection 319(7) of the Act is replaced by the following:
“communicating” means communicating by any means and includes making available;

Clause 5: Existing text of the definition:
“communicating” includes communicating by telephone, broadcasting or other audible or visible means;

That little change from 'by telephone, broadcasting or other audible or visible means' to 'by any means and includes making available' seems innocent enough.  If the language of the summary hadn't mentioned hyperlinks, I'm sure this would have passed without a debate.

Why are we doing this?  Because in 2001, Canada became a signatory of the Council of Europe's Convention on Cybercrime, and in 2005 we became a signatory of the Additional Protocol concerning Acts of Racist and Xenophobic Nature Committed on Computer Systems.  In that protocol (Chapter II, Article 3):

"Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:

distributing, or otherwise making available, racist and xenophobic material to the public through a computer system."

So, there is a reason behind this seeming madness.  And other countries (presumably) have done this before us without destroying the internet or exposing everyone with a blog to the threat of lawsuits. 

And the Criminal Code hasn't changed the section on defences against hate crime accusations:

Defences
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

So you can safely link to a site for the purpose of stating an opinion on a religious subject.
You can safely link to a site that is relevant to any subject of public interest (what doesn't that cover??)
You can safely link to a site to refute its content and point out the need for its removal.

There is one thing that all this legislation (in Canada and in Europe) seems to miss: the dynamic nature of the internet.  Websites are constantly changing.  If you link to the front page of the National Post because you want to share the headline, it will only be relevant for a day at best.  More than likely the top headline will have changed in a matter of hours.

If you link to someone's blog because you liked one article, you may not know that in 2003 he wrote a rambling Gibson-esque anti-semitic manifesto.  Too bad.  You've just made hate material available.

I don't know how to ammend this to make it right.  That's what the bureaucrats and politicians are supposed to do.  All I can do is urge you to contact your MP and tell them that this needs to be looked at before the Omnibus Bill becomes law.