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Privacy vs. Equality: Reflections on Re-thinking the Dichotomy
By: Jane Bailey


December 5, 2006

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The Supreme Court of Canada has interpreted “expression” very broadly for purposes of defining the extent of Charter protection for free expression. As a result, hate propaganda, obscenity and child pornography have all been found to qualify as Charter protected expression. The state has therefore been required to prove that the restrictions it imposes upon these forms of “expression” are justifiable in a free and democratic society.

Freedom of expression is perhaps most often characterized as an individual liberty – a right to express one’s beliefs free from state intervention. In the context of hate propaganda and obscenity, the overriding justification offered for state intrusion on an individual’s “expressive” freedom has been constitutional obligations relating to the more collective rights of equality and multiculturalism. Legislative restrictions on the individual Charter right to expression free from state intrusion have been found justifiable on the basis that hate propaganda and obscenity undermine the ability, respectively, of members of targeted minority groups and women to function and be respected as social equals. The concern is that the degrading and dehumanizing imagery and text of hate propaganda and obscenity may promote attitudes accepting of discrimination and violence against those groups and their members. Closely tied to this equality analysis is an analysis of the effects of hate propaganda and obscenity on the “dignity” of members of minority groups and women. While the privacy rights of those accused of offending state-imposed restrictions on hate propaganda and obscenity are explicitly considered, the privacy rights of target groups and their members are not. The analysis of the justification for restrictions on child pornography reveals a somewhat different emphasis – focusing more on its effect on the privacy and associated dignity rights of its immediate individual targets – the children abused in its production – rather than on broader social concerns as to the effect of its “message” on attitudes and behaviours toward children that serve to undermine the equality rights of that group and its members.

Why is it that the case law focuses explicitly on the privacy rights of the targets of child pornography, but never explicitly discusses the privacy rights of the targets of hate propaganda and obscenity? Perhaps the most obvious response is that, in fact, the privacy rights of target group members are simply not at play in the contexts of hate propaganda and obscenity. I would suggest that before jumping to that conclusion, we ought to more thoroughly expose and challenge assumptions about the nature of privacy and its relationship with equality underlying both that conclusion itself and much of the analysis in Canadian case law relating to hate propaganda, obscenity and child pornography.

One alternative response might be that recognition of certain privacy-related interests of the individual children victimized in child pornography, and the absence of any similar analysis in the context of hate propaganda and obscenity reflects a particular individualistic, negative liberty approach to privacy that unnecessarily pits privacy-related interests as oppositional to equality rights, in part by failing to give due weight to both the social and collective aspects of identity formation and their relationship with the broader social value of privacy. But is there any value-added in equality-seeking groups investing time and energy in attempts to re-imagine and re-articulate the by now entrenched vision of privacy as a fundamentally individualistic negative liberty?

As thinkers like Nussbaum have suggested, such efforts are not without their dangers, not the least of which is the risk of further inscribing privacy with values of little relevance to all but the most privileged members of equality-seeking groups. While the best legal hope for equality-seeking groups may well continue to be promoting understanding and acceptance of principles of substantive equality, in some instances both the collective interests of those groups as a whole and the related interests of their individual members may also be served by cultivating a more social or collective understanding of privacy and its ends.
 
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