Although the right to free speech is protected by Canadian law, there are exceptions when it comes to freedom of expression on the internet. Read on to find out more
Updated June 27, 2024
We often hear about freedom of expression, and about how it’s easily invoked by some. But as online mediums of expression have now become a trend, where does the law around freedom of expression on the internet head in the digital age?
This covers everything from defamatory comments “going viral,” to cyberbullying, and to the media’s use of technology in the courts. There is much to think about in terms of law and innovation, privacy and public knowledge, and censorship and protection.
What is freedom of expression on the internet?
Freedom of expression is a person’s right to express their opinions and ideas, or information that they have. It also includes the right to receive such opinions, ideas, and information from other persons or entities.
Freedom of expression is also referred to as freedom of speech, since these freedoms were associated with verbal speech in the olden times. Legally, these two are related.
The right to freedom of expression is made possible by accessing mediums of information. Traditionally, this would be in print (e.g., newspapers and books) or through TV and radio. But with the emergence of the internet in the past century, the abuse of freedom of expression has become a growing concern.
To know more about the freedom of expression in Canada, and its limitations (as will be discussed further), watch this video:
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Right to freedom of expression in Canada
As with any other country, the freedom of speech and expression in Canada has been one of the protected fundamental rights of its citizens. The Canadian Charter of Rights and Freedoms of the Constitution Act, 1982 provides for the following fundamental freedoms of every Canadian:
- freedom of conscience and religion
- freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
- freedom of peaceful assembly
- freedom of association
While the Constitution is the supreme law of the country, it’s not entirely absolute and can be restrained by other laws. The same Charter says that the rights and fundamental freedoms may be limited, if it “can be demonstrably justified in a free and democratic society.”
In other words, while freedom of expression and speech is protected by the Constitution, laws may be enacted to limit its exercise, such as to protect other rights. However, such limitations must stay true to the standard set by the Charter.
Purpose of protecting the freedom of expression
In a democratic society, everyone must be able to freely express themselves, but only if its exercise does not violate other laws and guaranteed rights. Under a democracy, people must be able to criticize their government, while offering solutions to the problems. They must also be able to gather, organize themselves, and voice their concerns over issues where public interest is involved.
To ensure all of these in a democratic space is the purpose of the Charter’s freedom of expression. When any of these rights have been unjustly repressed by anyone, either by a private person or public official, there arises an actionable wrong against the violators.
Impact of technology on the freedom of expression
In this age of technology and the internet, people may wonder if our freedom of expression still applies, and to what extent. More importantly, where does the law fit (or will fit) when it comes to restricting freedom of expression in this digital age.
Use of internet as medium of expression
“There isn’t necessarily a correlation between free speech and good speech,” said David Grossman, now a partner at Irving Mitchell Kalichman LLP. “Instead of challenging people by exposing them to new thoughts, [the internet] just gives them an infinite reservoir from which they can confirm the beliefs they already have.”
People seek out self-reaffirming ideas and comments that are harmless until these ideas turn from critique to defamation or hate speech, Grossman added.
McGill education professor Shaheen Shariff has spearheaded extensive research on young adults’ online communication. Her project aimed to address the many issues in reducing cyberbullying. “How do we clarify the boundaries of free expression especially for young people? The problem is we are trying to over-regulate,” she said.
At the core of the issue is public outcry for action. In the wake of the horrific events related to cyberbullying, such as the much-publicized Amanda Todd suicide in 2012, there were calls to amend the Criminal Code.
Legislators’ apprehension towards the issue is viewed with skepticism from both the research and legal points of view. Legislation is often a sweeping regulatory initiative aimed at everyone. “The issue is, who is everyone? Are we looking at adult speech or that of children?” said Shariff.
The small differences in communication among young adults must be given due attention. The problem is that from a policy perspective, nuances are seen as a diversion from direct and swift action and can often be sidelined.
Role of courts and using current laws
If legislators should abstain from addressing the issue, who then is responsible? Shariff joined Grossman in pointing to proper socialization and to the courts and existing laws as the best lines of defense.
“How has the web 2.0 marketplace of ideas changed and where do we want to be more vigilant?” asked Grossman. “Courts are very sensitive to the policy aspect; they care about the chilling effect.”
We can glean from decisions such as A.B. v. Bragg Communications Inc. (2012 SCC 46), which granted confidentiality to the cyberbullying victim.
Of course, the path is not clear-cut, said Shariff. “Efforts must be directed at sensitizing the judiciary, the government, and the legal community.”
For articles on laws and cases involving privacy and freedom of expression on the internet, visit our Privacy and Data section.
Are there laws limiting the freedom of expression on the internet?
As a rule, all other laws must be aligned with the rights set out in the Canadian Charter of Rights and Freedoms. There are many laws which validly limit the exercise of these rights. Among these laws are:
- Criminal Code
- Canadian Human Rights Act
- laws against libel and defamation
- other laws on online activities and allowed content
Specific to the freedom of expression on the internet, there are also restrictions implemented by websites and online companies themselves.
Below are some of the restrictions on the freedom of expression on the internet. There are other laws that limit this freedom. For example, the laws restricting one’s freedom of expression online may differ from those for print or verbal acts.
Common law on freedom of expression online
Developments on case law about the limitations of freedom of expression on the internet have been new. Most of time, these cases become the backdrop for proposed legislations, and even work as a guide for the public, on how internet users should behave to prevent any violations.
R. v. Elliott, 2016 ONCJ 35 (CanLII)
This 2016 decision is one of Canada’s first cases on the exercise of the freedom of speech online. The subject of this criminal case of harassment are the tweets made on X by Gregory Alan Elliott against the women he had been criticizing.
While the court acquitted Elliott, the case gave lawyers and victims of online harassment pointers on what should be proven when prosecuting a case of online criminal harassment.
Lavallee et al. v. Isak, 2021 ONSC 6661 (CanLII)
In this case which involved a screenshot of the plaintiff’s Snapchat video, the court applied the standards on proving defamation and the defense of fair comment. It found the defendant (the person who took the screenshot and started an online hate campaign against the plaintiffs) to be liable for damages. This decision is a cautionary tale for calling out other people online without crossing the boundaries of defamation.
Read this article on defamation for more on this topic.
Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 (CanLII)
This is one of the most recent decisions on hate speech as violations of Saskatchewan’s Human Rights Code. Here, 2 of the 4 flyers published by the defendant were held to promote hate based on sexual orientation.
This case will become helpful for parties who allege hate speech on the standards that these publications should meet to secure a favorable decision to the plaintiff.
Canadian statutes on freedom of expression
There are several statutes that serve as an exception to the exercise of one’s freedom of expression on the internet. Aside from violations of intellectual property rights and privacy rights in the online platform, these laws cover cyberbullying, hate speech, harassment, and even pornography.
Just this year, the Online Harms Act was introduced to strengthen these laws. One of its main goals is to protect Canadians, especially the children and youth, from online hate and harmful content. (Civil society groups have asked the government to ensure that the proposed bill still protects the right to privacy and freedom of expression.)
Amendments to existing laws to address cyberbullying and other crimes
After Todd’s suicide in 2012, the government heeded the public calls and handled the situation by enacting new laws regulating the freedom of expression on the internet. At the federal level, Bill C-13, or the Protecting Canadians from Online Crime Act, was introduced on November 20, 2013. The Bill took effect on March 10, 2015.
To address cyberbullying and other criminal activities on the internet, the Bill indeed amended the following laws:
- Criminal Code: introduces two new offences, namely, the non-consensual distribution of intimate images, and the possession of a computer virus for the purpose of committing mischief
- Canada Evidence Act: now allows a spouse to be a compellable witness against their spouse who is charged with the crime under the Criminal Code’s section 162.1(1) (publication, etc., of an intimate image without consent)
- Competition Act: introduces new provisions in the Criminal Code about the preservation and production orders, allowing the Commissioner of Competition to use new investigative tools in obtaining evidence
- Mutual Legal Assistance in Criminal Matters Act (MLACMA): authorizes the Commissioner of Competition to execute search warrants issued under the MLACMA
Laws against online hate speech
In 2012, the hate speech provision in the Canadian Human Rights Act was repealed. However, there are still other laws that consider hate speech as an exception to one’s freedom of expression on the internet. One of these are the provincial and territorial human rights laws which address hate speech, such as the following:
- Human Rights Act: Alberta and Northwest Territories
- Human Rights Code: British Columbia and Saskatchewan
Under these laws, it’s illegal to publish any statement (which may include online posts) that will incite a person or a group to hate and discriminate. These hate speeches are not protected under the freedom of expression on the internet, and violators may be held liable for damages and other civil remedies.
The future of freedom of expression on the internet
We won’t expect discussions on freedom of expression on the internet to die soon. As more people and transactions go online, it will be an ongoing concern for most of us. This means that prevailing laws can make or break how people behave in this digital era.
For now, netizens must know that expressing one’s thoughts and opinions online could have consequences. While it’s easy to say that the law can be challenged, it’s safer to think twice (or even more) before clicking that share button.
Do you think that freedom of expression on the internet should be regulated? Let us know in the comments.
