On April 2, a journalist asked health minister Patty Hajdu about a Bloomberg news report citing U.S. intelligence that had concluded China covered up the extent of its Covid-19 outbreak. The minister responded by telling the journalist that he was “feeding into conspiracy theories that many people have been perpetuating on the internet.”
In other words, Hajdu labelled the Bloomberg report fake news.
Her reaction surprised many journalists because evidence has been building since January that China has lied about the death toll. On Friday, local officials in Wuhan revised their tally upwards by 50 per cent to 4,600 dead, adding more evidence to the cover-up theory.
Now those same journalists are raising concerns that Hajdu’s government is considering a law to punish people who “knowingly spread misinformation that could harm people.” CBC reports that such laws are already in place in Singapore, Thailand and South Africa, and a British MP is pushing for fines against social media companies for failing to take down Covid-19 fake news.
This is not the first time the Liberals have floated the idea of laws targeting what they view as harmful information online, but Covid-19 seems to have given them a new potential justification.
Considering that section 2(b) of the Charter of Rights and Freedoms gives everyone the constitutional right to freedom “of thought, belief, opinion and expression,” can the government really criminalize the public for spreading information they believe to be false?
In 1992, the Supreme Court of Canada considered this very question in a case called R v Zundel. Holocaust denier Ernst Zundel had been charged under a old and rarely-used section of the Criminal Code that stated “[e]very one who wilfully publishes a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment…”
Beverley McLachlin, who went on to become Chief Justice of Canada, found that the law was an unjustified infringement on the constitutional guarantee freedom of speech. McLachlin noted that all communications “which convey or attempt to convey meaning,” with limited exceptions like violence, are protected by the Charter. That means that regardless of how evil or wrong or stupid a person’s statement might be, the government cannot silence him or her unless it can show the law limiting the speech is “demonstrably justified in a free and democratic society.”
McLachlin said that there are three purposes underlying our right to free speech: “promoting truth, political or social participation, and self fulfilment.” The Charter, she says, “extends to the protection of minority beliefs which the majority regards as wrong or false.” The reason for protecting even seemingly false information is that it is difficult to be ever certain about what is true. This is the same argument made by John Stuart Mill in his defence of freedom, On Liberty.
McLachlin did not rule out the possibility that some limits on speech can be justified. In fact, the court had found just two years earlier in the case R v Keegstra that the hate speech provisions of the Criminal Code were justified. However, McLachlin asserted that any limit would “require(s) more than the general goal of protection from harm common to all criminal legislation; it requires a specific purpose so pressing and substantial as to be capable of overriding the Charter’s guarantees.”
Leonid Sirota, a senior lecturer at AUT University Law School in New Zealand, says Zundel makes clear that any total ban on online posts that the government sees as fake news or harmful content would be “very clearly” unconstitutional if criminal sanctions were involved. He says it’s “plausible” based on some of the language in Zundel that “a more narrowly tailored law” might be deemed constitutional. For example, it’s possible that a law specifically meant to deal with Covid-19 misinformation timed to end when the pandemic is over could be considered justified.
But Sirota worries that any law justified on the basis of the Covid-19 emergency could “give legislatures a sort of get-out-of-jail-free card, which they may then be inclined to abuse.” He suggests that if courts deferred to governments during this emergency, future governments might be tempted to declare that other things they view as emergencies “be it climate change, or ‘systemic racism,’ or the need to make Canada great again” justify the stifling free speech.
Sirota has written a post on the Double Aspect blog forcefully arguing against such legislation. He writes that “the real damage it will do will occur in the medium and long term, as it becomes a template for widespread criminalization of statements deemed to be contrary to this or that state policy.”
The bottom line is that although no one can say for certain that a court would strike down a Covid-19 misinformation law, there is good reason to believe that such a law would be an unconstitutional interference with freedom of speech.
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