section 320.1(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a court to order the deletion of hate propaganda that is available to the public on a computer system.

SECTION WORDING

320.1(5) If the court is satisfied, on a balance of probabilities, that the material is available to the public and is hate propaganda within the meaning of subsection 320(8) or data within the meaning of subsection 342.1(2) that makes hate propaganda available, it may order the custodian of the computer system to delete the material.

EXPLANATION

Section 320.1(5) of the Criminal Code of Canada empowers the court to order the deletion of hate propaganda or materials that promote hate, if such material is found to be available to the public. The section seeks to tackle hate speech, which has been known to have the potential to incite violence against the targeted groups. It applies to any person who is in control or has custody of a computer system, whether it is an online platform or any other computer systems that can disseminate or make such propaganda available. It is important to note that not all speech that is offensive or demeaning to a particular group of people falls under the purview of hate speech. According to subsection 320(8) of the Criminal Code, hate propaganda refers to "any writing, sign or visible representation that promotes or advocates for genocide or the communication or expression of hatred against an identifiable group on the basis of their race, religion, ethnic origin, or sexual orientation." Therefore, the court must determine whether the material in question meets this definition before ordering its deletion. The balance of probability standard used by the court means that it is more likely than not that the material is hate propaganda or promotes hate. If the court is convinced that the material is hate propaganda, it may order the person in control of the computer system to delete it. Failure to comply with such an order is an offence under the Criminal Code, and the offender may face punishment. In conclusion, Section 320.1(5) of the Criminal Code of Canada is a significant provision aimed at curbing hate speech and protecting the public against the potential harm that could arise from such speech. By providing the court with the power to order the deletion of such material, it sends a strong message that hate speech is not acceptable in the society, and violators will face consequences.

COMMENTARY

Section 320.1(5) of the Criminal Code of Canada provides a provision for the deletion of hate propaganda from computer systems. Hate propaganda refers to any material that promotes or advocates hatred against an identifiable group based on their race, ethnicity, religion, gender, or sexual orientation. Subsection 320(8) of the code defines hate propaganda as any communication that willfully promotes hatred against any identifiable group". The provision in section 320.1(5) is unique in that it provides a means for the removal of hate propaganda from computer systems. This is essential in our digital age where hate propaganda can be found online and easily disseminated. With the rise of social media platforms, individuals can easily create and share hate propaganda with large audiences, thereby increasing the spread of hatred and contributing to the harm of identifiable groups. The provision requires the court to be satisfied, on a balance of probabilities, that the material is available to the public and is hate propaganda. Once this threshold is met, the court has the power to order the custodian of the computer system to delete the material. This provision has the potential to significantly curb the spread of hate propaganda online and prevent harm to identifiable groups. However, the provision must be balanced against freedom of expression and the protection of fundamental rights enshrined in the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has held that hate propaganda laws infringe on freedom of expression but are justified in a free and democratic society. Despite the protection of fundamental rights, the provision must also be applied with caution. The deletion of material from computer systems may be difficult to enforce as it may be stored in different locations or on different devices. Additionally, the provision does not address the issue of hate propaganda that is spread through other means, such as in printed materials or through conversations. Overall, section 320.1(5) of the Criminal Code of Canada is a positive step towards curbing the spread of hate propaganda online. It provides a mechanism for the deletion of such material from computer systems, thereby preventing harm to identifiable groups. However, the provision must be balanced against freedom of expression and applied with caution to ensure that fundamental rights are protected.

STRATEGY

Section 320.1(5) of the Criminal Code of Canada allows for the deletion of hate propaganda from computer systems if it is available to the public. Given the sensitive nature of hate propaganda and the potential legal implications for those who engage in hate speech, it is critical for individuals and organizations to understand the strategic considerations and strategies for dealing with this section of the Criminal Code. Strategic Considerations The first strategic consideration is to ensure that individuals and organizations are aware of the definition of hate propaganda under subsection 320(8) of the Criminal Code. Hate propaganda includes any communication intended to promote hatred against an identifiable group, whether based on ethnic origin, religion, race, age, disability, sexual orientation, or gender. This means that individuals and organizations must be careful about the language they use in their communications, especially online. Another strategic consideration is understanding what constitutes public availability. If the material is available on public forums, websites, or social media platforms, it meets the threshold for public availability. However, if the material is only accessible through private groups or networks, it may not meet the threshold. A third strategic consideration is recognizing the potential risks and implications of engaging with hate propaganda. While freedom of speech is protected under the Charter of Rights and Freedoms, hate speech is not. The Supreme Court of Canada has affirmed that hate speech is not a protected form of expression, and individuals or organizations found to be promoting hate propaganda may face legal consequences such as fines or imprisonment. Strategies One strategy that individuals and organizations can employ is to monitor their online presence and remove any hate propaganda before it is flagged to authorities. This proactive approach minimizes the risk of legal action and negative brand perception. Another strategy is to develop clear policies and guidelines for online communications. These guidelines should outline what constitutes hate propaganda, the consequences of engaging in hate speech, and the reporting process for flagging potential violations. A third strategy is to invest in technologies that can help identify and remove hate propaganda in real-time. These technologies can flag potential violations and automatically remove any offensive material, reducing the risk of manual error or oversight. Lastly, individuals and organizations should be prepared to respond to any legal action taken against them for promoting hate propaganda. This includes having legal counsel in place and being able to demonstrate that they have taken steps to prevent hate propaganda from appearing on their computer systems. In conclusion, dealing with section 320.1(5) of the Criminal Code of Canada requires strategic considerations and specific strategies. By understanding hate propaganda, public availability, and the potential legal implications, individuals and organizations can take proactive measures to prevent and remove hate speech from their computer systems.