The federal Liberal government has been promising for several years to bring forward legislation to address “online harms.” We have long written about the need for and challenges of online harms legislation. Such legislation is designed to get online companies like Meta, Twitter and Google to address the toxic behaviour on their networks (including antisemitism) that can drive marginalized individuals and groups out of the public conversation, sometimes under fear for their lives.
However, when the government finally introduces a bill, it will be in a very different political and social climate than when it last floated a proposal, in July 2021, particularly with the ongoing Israel-Hamas war, sparked by Hamas’ violent incursions into Israel on October 7 that killed approximately 1,200 people. As of early January 2024, between 22,000 and nearly 30,000 people, including about 12,000 children, have been killed in Gaza, with Israeli forces also severing food, water, and fuel distribution. There is a “catastrophic” risk of famine in Gaza, warns the Integrated Food Security Phase Classification, a global multi-partner initiative focusing on tracking food insecurity, while the United Nations is tracking a sharp increase in preventable communicable disease, especially among children.
In response to the Israel-Hamas war, countries around the world, including Canada, are experiencing a sharp rise in antisemitic and Islamophobic physical and verbal/written attacks on Jews and Muslims.
The debate over the Israel-Hamas war is also starkly highlighting the problems that a society can run into in the absence of consensus definitions of what constitutes a type of hate or problematic speech.
In our current moment, the issue is whether criticism of Israeli state actions and calls for Palestinian freedom is legitimate political comment, or is a hateful attack on the Jewish people, tantamount to calls for genocide. At issue is where to draw this particular line. As Dov Waxman, director of the UCLA Younes and Soraya Nazarian Center for Israel Studies, notes, there is “no consensus” over when criticism of Israel and Israeli government policies turns into antisemitism.
Addressing the politicization of antisemitism charges is not a hypothetical challenge. Professional blacklists and retribution against employees for publicly expressing political views may feel like something out of the 1950s era of ‘Red Scare’ communist paranoia, but Canada has already witnessed both, against students and employees for unpopular pro-Palestinian political speech.
On October 17, Jill Dunlop, Ontario’s education minister, alleged professors and university students critical of Israel’s military actions, including in comments on social media, were “supporting Hamas” and read their names into Hansard in the provincial legislature. In November, the University of Ottawa suspended medical resident Dr. Yipeng Ge following accusations of antisemitism, which involved “posting pro-Palestinian messages on social media that were also critical of Israel,” according to the CBC.
In October, in an example of what some members of Canada’s legal community have criticized as a “new McCarthyism,” a group of lawyers addressed a letter to the president of Toronto’s Metropolitan University (TMU) in which they criticized law students for expressing “unequivocal support” for Palestinians and warned that these students’ professional placements would be at risk, essentially placing their careers in jeopardy for expressing a political opinion.
This heavy-handed retaliation for the expression of political criticisms of Israel and support for Palestinians is widespread. According to The Breach media outlet, Ontario’s Ministry of the Attorney General required TMU law students to sign a form saying they did not join the open letter in solidarity with Palestine, a move that TMU law professor Joshua Sealy-Harrington describes as a “flagrant disregard for legal and constitutional rights.”
Labelling critics as “Hamas supporters,” as Conservative MP Jake Stewart did to his NDP colleagues in the House of Commons, is intended to shut down, not continue debate. Commenting on similar cases in the United States, Genevieve Lakier, professor of law at the University of Chicago, highlights that people are being fired not for “promoting violence,” but for “calling for a ceasefire” and being “critical of Israel.”
A matter of definition
Antisemitism expansively defined to include political debate over the state of Israel or Israeli politics – for example whether Israel is an “apartheid” or “settler-colonial” state, or if its actions in the war amount to “genocide” – shuts down conversation. A 2021 report by the University of Toronto’s Antisemitism Working Group that, among other things, examined whether the university needed an explicit definition of antisemitism, noted that both proponents of the International Holocaust Remembrance Alliance (IHRA) “Working Definition,” which has been adopted by the governments of Canada and Ontario, has the “potential as a basis for banning controversial speech, particularly speech and events that are critical of Israel.” Kenneth Stern, who drafted the IHRA Working Definition, has explicitly stated that it should not be used as “a campus hate speech code.” He notes that in the United States, “rightwing Jewish groups” have “weaponized” it to “attack academic freedom and free speech” in ways that “will harm not only pro-Palestinian advocates, but also Jewish students and faculty, and the academy itself.”
In its consideration, the report notes that two other definitions, the “Jerusalem Declaration,” and “the Nexus Document,”recognize that “antisemitic representations sometimes figure in criticism of Israel,” but that “certain of the examples concerning speech about Israel that accompany the IHRA definition are not always antisemitic.”
An expansive definition of antisemitism places some political decisions as beyond questioning, even when such questioning is done in the spirit of proposing more productive alternatives for the survival and flourishing of the Israeli state. Echoing these concerns, Bernie Steinberg, former Executive Director of Harvard Hillel, said he is alarmed by the “McCarthyist tactic of manufacturing an antisemitism scare” and contends to fight antisemitism, “we must put aside all fabricated and weaponized charges of “antisemitism” that serve to silence criticism of Israeli policy and its sponsors.”
In November, several UN special rapporteurs expressed alarm at the “worldwide wave of attacks, reprisals, criminalisation and sanctions” against those publicly expressing solidarity with Palestinians and criticizing Israel’s actions, leaving “little space for moderate views.” Weaponized antisemitism, as Steinberg calls it, strategically shuts down criticism of Israel’s conduct in its war on Hamas and Gaza and seeks the domination and silencing of Palestinians and their supporters.
Universities have also become targets for allegedly being hotbeds of antisemitism. Politicians in the United States and Canada, employing an expansive definition of antisemitism, are demanding to hear how university administrators are addressing antisemitism on their campuses. Following a similar, Republican-driven inquiry in the United States, in December five Liberal MPs wrote to the presidents of Canada’s 25 biggest universities in December, calling on them to report upon the steps they have taken to deal with antisemitism on campus.
Based on an expansive definition of antisemitism that includes not just calls for genocide (which are illegal in Canada), but critiques of the state of Israel, this letter represents an attempt to interfere with academic freedom and political discourse on one of the most important issues of our time.
What’s more, the letter calls on the universities to ensure that “student associations, student newspapers and groups recognized by the university” have measures in place to prevent them from “becoming hostile environments” for Jewish students. As far as we know, no student newspaper has called for genocide against Jews: an act, again, that is already illegal in Canada. Given the conflation of violations of human rights with political critique, it’s hard to see such an attempt at direct intervention into student newspapers as anything other than an attack on the freedom of the press recalling the worst excesses of US McCarthyism.
Getting the process right
This is the politically charged landscape in which the online harms bill is likely to be adopted. To avoid chilling legitimate political speech, we have two suggestions.
First, it is important that the online harms legislation establish a clear, democratically accountable process for determining what constitutes antisemitic (or Islamophobic, or misogynist, or racist) speech. These issues are too important to be left to online companies to decide. This is not only because their commercial interests in amplifying user engagement through viral content has historically driven the spread of hate speech of all types. It is also because, as Tusikov explains in her book, Chokepoints: Global Private Regulation on the Internet, governments often engage in “shadow regulation,” compelling online companies to act outside of democratic processes.
The online harms bill also needs an independent, democratically accountable process to differentiate so-called “lawful but awful” speech from illegal hateful speech, along with a clear appeals and review mechanisms. People can legitimately differ in opinions as to speech regulation, including what speech requires regulation, while the conventional wisdom over what constitutes hate speech itself can also change over time.
Such processes must be guided by two principles. First, it must recognize the importance of context, specifically that speech occurs within certain social and historical circumstances and that the meaning of words and phrases evolves.
Second, we must not lose sight of the purpose of such legislation: to enable a greater diversity of voices in our public debates while respecting and enhancing the dignity of all participants. Approaches that shut down one group to the advantage of another go against this principle. Limiting legitimate political speech prevents uncomfortable but necessary discussions on difficult topics like genocide and colonialism. These issues are unpopular to discuss, but their exploration is vital to the health of our democracy and society – not just Canada’s, but Israel’s. Limiting these discussions makes us a poorer society.
The need for an online harms bill is urgent. But we need to get the steps right to ensure that any successful legislation respects and promotes the human dignity of all, and does not contribute to knee-jerk censorship.