Human Rights Regarding Publications
The Human Rights Code forbids discrimination in publications, such as a public sign, notice, flyer, or article.
A publication discriminates when it has a very harmful effect on a person or group in relation to a personal characteristic. People are free to express themselves and publications that are only offensive are allowed. Communications that are meant to be private are not covered.
What publications are discrimination?
A complaint must set out facts that, if proved, could be discrimination under the Human Rights Code against each person named as a respondent.
This means that a complaint must include information showing:
- There is a publication, such as a published article or a public sign or flyer.
- The complainant has a personal characteristic (or is perceived to have a characteristic) that is protected under the Code.
- The publication is likely to expose a person or group or class of persons to hatred or contempt and/or indicates discrimination or an intention to discriminate.
Personal characteristics that are protected from discrimination in publications
The personal characteristics protected in publications are:
What publications are discrimination under the Human Rights Code?
The Code only prohibits discrimination in publications that have very serious effects in relation to a personal characteristic. This is because people have a right to express themselves. Publications that are only offensive are allowed.
Hatred or contempt
A publication discriminates if it is likely to expose a person or group to hatred or contempt.
This means that a reasonable person, aware of the context and circumstances surrounding the publication, would view it as likely to expose a person or group to hatred or contempt on the basis of a personal characteristic.
Generally, only extreme and egregious statements are prohibited. Hatred or contempt refers to extreme signs of emotion of “detestation” and “vilification”.
The Code prohibits publications that encourage hostility and extreme ill-will against a person or group, or that seek to abuse, denigrate, or delegitimize them (make them lawless, useless, dangerous, unworthy, inferior, or unacceptable).
Equating a group with those who are reviled such as child abusers or pedophiles, or “deviant criminals who prey on children”
Blaming group members for the problems in society, alleging they are a “powerful menace” or are carrying out secret conspiracies to gain global control, or plotting to destroy western civilization, or labelling them as “liars, cheats, criminals and thugs”
Describing members as animals or subhuman such as “horrible creatures who should not be allowed to live”, “genetically inferior”, “lesser beasts” or “sub-human filth”
It is not enough for a publication to encourage mere disdain or dislike, or to discredit, humiliate or offend the members of the group. It is not enough that the publication is hurtful.
A repugnant or offensive idea is not enough, on its own, to violate the Code. The Code does not prohibit expressions which are repugnant or offensive, unless they incite a level of abhorrence, delegitimization or rejection that risks causing discrimination or other harmful effects.
The intent of the person expressing the idea does not matter. What matters is the likely effect of expressing the idea. Would a reasonable person consider that the expression has the potential to lead to discrimination or other harmful effects?
This will depend on the context of a message.
Expressions in the context of public debate are less likely to expose a group to hatred or contempt. A publication may debate the merits of reducing the rights of a vulnerable group in society, so long as it does not use expression that exposes the group to hatred.
Expressions in the context of satire are less likely to expose a group to hatred or contempt
It may matter whether the expression contains a single remark or repeated, delegitimizing attacks.
Context may include:
- The vulnerability of the target group
- The degree to which the publication on its face contains hateful words or reinforces existing stereotypes
- The content and tone of the message
- The social and historical background for the publication
- The credibility likely to be given to the publication
- How the publication is presented
Indicates discrimination or an intention to discriminate
A publication discriminates if it indicates discrimination or an intention to discriminate based on a personal characteristic. This does not prohibit expressing offensive or hurtful ideas, or engaging in matters of public debate.
Who can be named as a respondent in a publication complaint?
Any person responsible for making something public, including the publisher and the person who submitted something to be published can be named as a respondent.
Defences to discrimination regarding publications
There are two defences: private communications and communications related to an activity allowed by the Human Rights Code.
Defence for private communications
It is a defence if the communication was private or intended to be private. If the respondent intended that a communication not become public, the defence will apply.
Examples of communications considered private include where a government ministry circulated letters and files among its employees, and where a respondent posted a note in a locked room that only he and the complainant used.
Note that a private communication can still violate the Code under another section. For example, it is no defence to an employment complaint to say that a discriminatory communication was not made public.
Defence for communications related to activities otherwise permitted by the Code
An example of an activity permitted by the Code is an employment advertisement that has a preference based on a personal characteristic and the preference is based on a bona fide occupational requirement (a defence under s. 11 of the Code)or if the preference is permitted under a special program approved by the Tribunal (under s. 42 of the Code). The Tribunal has not yet considered the application of this defence.