By Michael Karanicolas
In November 2012, 21-year-old Renu Srinivasan was arrested in Mumbai, India. Her crime was that she “liked” a friend’s comment on Facebook which questioned the public funeral arrangements being made for a prominent politician.
The case garnered significant global attention, where the Indian authorities were condemned for their abuse of power and their misunderstanding of the nature of online speech. Ms. Srinivasan’s arrest did indeed represent a gross violation of the right to freedom of expression.
The people of Newfoundland and Labrador should, however, think twice before concluding that this sort of misunderstanding of the Internet is limited to the developing world.
On April 16, MHA Gerry Rogers was thrown out of Newfoundland’s House of Assembly after being found in contempt because a Facebook page that she was subscribed to contained very offensive statements against Premier Kathy Dunderdale.
Rogers, for her part, denies having joined the group (saying, instead, that she had been added by someone else, which is possible with Facebook pages). She therefore refused to apologize, leading to her expulsion from the House.
In some ways, she might have been lucky: Newfoundland’s House of Assembly Act, which she was accused of breaching, allows for fines and, in lieu of payment, up to three months’ imprisonment.
Regardless of whether Rogers joined the group voluntarily, the case raises serious issues from a freedom of expression perspective.
Rogers was condemned based on a very tangential connection to the offensive statements. As anyone even vaguely familiar with the freewheeling world of online debate can attest, joining a particular discussion group or Facebook page is in no way an endorsement of every statement made on it.
To suggest otherwise is a bit like claiming that publishing a statement, such as this in a newspaper, should open one up to liability for any defamatory statement printed by that newspaper. Or even to transfer liability to everyone who receives the newspaper, because an important function of joining online groups is to remain informed about what is happening around us.
Both functions of online groups — to enable members to keep informed about events and to participate in spreading one’s own thoughts — are of the greatest importance for politicians, and their ability to discharge their democratic responsibilities in the modern world.
Rogers’ expulsion will almost certainly exert a chilling effect on politicians’ willingness to use the powerful medium of the Internet to engage with their constituents, participate in the diverse groups that it brings together and generally take advantage of the enormous grass-roots democratic benefits that it engenders.
More broadly, this decision exposes serious problems with the institution of contempt of parliament. In calling for Rogers’ suspension, Government House Leader Darin King cited the House of Assembly Act, which highlights members’ right to be free from “obstruction, interference, intimidation and molestation.”
Ironically, this is precisely what Rogers suffered (i.e. interference with her legitimate outreach activities).
From a freedom of expression perspective, these terms could potentially be used to penalize a vast array of perfectly legitimate political speech. Indeed, this danger can be found within King’s address itself, which equates recent protests in Great Britain by opponents of Margaret Thatcher to the Boston bombings and “the bullying and intimidation and mass murders that we have seen down in the United States over the last number of years.” Rogers’ expulsion, on fuzzy grounds and based on conduct with only a very tenuous link to her, is an excellent illustration of this.
There are also serious procedural problems in the way contempt of parliament is applied, largely at the discretion of the Speaker.
In this sense, it is analogous to contempt of court rules, which have traditionally allowed a judge to try contempt cases immediately in his or her own court. In both circumstances, certain powers are necessary to ensure the orderly conduct of the respective proceedings.
However, contempt of court powers have led to abuses and more progressive jurisdictions, such as South Africa, have started to develop more protective procedural rules.
I believe that the Speaker of the Newfoundland House of Assembly should provide appropriate redress to Rogers and refrain from applying contempt powers in similar cases in future. The Newfoundland House of Assembly — but also other legislatures in Canada for similar rules exist in all of them — should review their contempt of parliament rules with a view to bringing them into line with standards of respect for freedom of expression.
Michael Karanicolas is legal officer of the
Centre for Law and Democracy.