Paintings found on wall of Chauvet Cave – made circa 30,000 BCE

Recently, last Friday March 6th in fact, I had the privilege of speaking about freedom of expression to the Association des juristes d’expression française de la Colombie britannique. Normally, I would take my speaking notes and just convert them into a blog post. This is not possible here because first, my notes were “en français” and second, I undoubtedly butchered that otherwise beautiful language. This is part of the reason why there has been a bit of a lull between posts – I have been too busy reactivating old French language brain cells to prepare a new post.

This post is another in the series of posts in which I have explored the new Internet Age realities that exist for freedom of expression (for the other posts see “Freedom of expression and copyright in the Internet – The new realities of a cyberspace inhabited by copycats” (January 24, 2014), “The Internet Turns 25 Years Old – the Courts and the World Wide Web” (March 19, 2014) and, “The iRevolution revisited: when you share, are you expressing?” (November 13, 2014). In this blog post, I advance the thesis that the protection of freedom of expression must include not only the protection of the things expressed but the modalities and, specifically the technological modalities, by which human expression is transmitted and received.

To underscore this point, I want to roll back the years to our earliest times on this planet. The species homo sapiens, in its current anatomical form, first emerged on Planet Earth about 200,000 years ago. At the time, there were a number of other hominids, including homo neandertalensis which went extinct about 34,000 years ago. Recently, yet another hominid species, homo florensis, was identified as occupying some of the Indonesian islands. Homo florensis went extinct about 12,000 years ago. Homo sapiens and these other species, along with our ape cousins and many, many other species on the globe communicated with each other using various means – oral sounds, forms of language, gestures, facial expressions, scents, hormones. The degree of sophistication of the communication varies from species to species. To this day, we can observe tribal groups of chimpanzees develop a plan to attack a neighbouring tribal group – something humans regrettably do to this day.

What set humans and some of our now extinct relatives apart from all other species, however, was our ability to express thoughts or ideas using symbols. Witness the cave paintings from tens of thousands of years ago that I have depicted at the beginning of this blog post. I am amazed by the sophistication and beauty of the artwork that our early ancestors created. The paintings found on the walls of caves in various places around the world confirm that the need to express oneself has been a human need for millennia.

What we must appreciate, however, is that we are able to contemplate and observe and interpret this early human expression because of humanity’s capacity to use and adapt technology. The earliest cave paintings are an example of this fact. Looking at such a painting as I have exhibited above, one can see the lions and their prey. The artist or artists have managed to convey to us tens of thousands of years later the sense of what they had observed and what they were trying to communicate to the people who would later look upon their work. They succeeded in doing that because of their use and adaptation of technology.

The development of agriculture and thus “civilized” society with cities and towns and political structure took a long, long time to develop. It was only around the time of the end of the last Ice Age that agriculture took root in what we now term the “cradle of civilization”. It took another 7000 years, around 5200 to 5400 BE, for a small portion of humanity to convert the use of symbols into a representation of language – in other words, writing. At first, the use of writing (which again required technological adaptations – the development of writing tools, tablets or surfaces to write on) was restricted to a small geographic area, namely, Mesopotamia and Egypt, and was restricted to an even smaller portion of those civilizations. The concept of a literate general population was still thousands of years away. But the development of writing was central. For the first time, one generation could communicate to future generations beyond their deaths. A subsequent generation could read and understand the thoughts, the ideas, the observations and theories of an antecedent generation. This development allowed for a growing and accelerating accumulation of human knowledge. Other civilizations developed writing independently – the Chinese and the Mayan civilizations. Still others borrowed from the Mesopotamian and Egyptian experience.

From the time writing was first invented, the only way to reproduce a written document was to copy it – by hand. To reproduce a book would take months, sometimes longer. In about 1200, the Chinese first developed a moveable type press. The Koreans improved on it. In 1450, using a much simpler written language (many times fewer characters), Johannes Guttenberg invented the printing press. This invention dramatically changed European society. It effectively “democratized” European society in that the press provided a reliable, relatively rapid and cheaper method of reproducing written works. Thus, so long as someone had learned how to read and write, because of the massively increased availability of books and other written documents, ordinary people (not just the privileged few) could read the documents for themselves and form their own thoughts and opinions and even record through writing their own thoughts and opinions. The result was, as we know, a wholesale change of European and Western society. The Reformation, the Scientific Enlightenment, the French and American revolutions all owe to some degree their genesis to a technological development, the printing press.

It still took another 400 years for the idea of public education and the power of a generally literate population to take place in most places around the world. But with that social change, we became the first species on the planet to communicate not only with the old oral language, gestures, facial expressions and scents but also with a symbolic language. This is a profoundly human distinction.

We have obviously added other forms of technology to the printing press. We developed electronic forms of communication – the telegraph, the telephone, the phonograph, the moving pictures, the radio, and the television and all the distribution networks for these media. With each step, we made the planet smaller and smaller, making instantaneous communication possible – not only with sounds but with visual images. Marshall McLuhan’s prediction of a “global village” became true in 20th century.

From the mid to the late 20th century, another profound development took place. We digitized our information. Computer programming led the way – using binary code, zero or one, we developed whole programs to manipulate all sorts of data and information. But then we started to convert everything to a digital format. Our documents, our writing, our music, our photos, our films, everything.

When we couple that development with the creation of the Internet, the development of micro-computers (ie. cell phones) and cellular networks that span the globe, we have entered yet again a new era. The Information Age. These technological developments and the technology that serve them are the instruments by which we now express ourselves. Because we are a “literate” species and because of this “iExpression”, we see masses of people staring at their cellphones, sending information, researching information and receiving information – information of every type imaginable.

In the image above, people are using their cellphones in a variety of ways – some are talking into it and hearing someone else talk. Some are texting or receiving texts. Some are taking digital photos which they no doubt will share with their friends all over the world. This is what I term the “iRevolution”.

When the drafters of the Charter came to freedom of expression, they decided to include it under s. 2 with other “fundamental” freedoms. They included it with “freedom of conscience and religion” (s. 2(a)), “freedom of peaceful assembly” (s. 2(c)) and “freedom of association” (s. 2(d)). For section2(b), the drafters wrote:

“Everyone has the following fundamental freedom[]:
(b) freedom of thought, belief, opinion and expression,…”

But they did not end it there. They went on to include the following words: “including freedom of the press and other media of communication”.

This is the only right in the Charter that has constitutionalized a right to use a machine, a piece of technology – the printing press.

The drafters were thoughtful enough to mention also the “other media of communication”. I would not think that that would be limited to the media of communication available in 1982. Surely, this must include future technological developments. Surely, it must encompass and include and support such developments as the iRevolution.

In the seminal decision, Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 SCR 927, the Court summarized the reasons or rationales for protecting freedom of expression [at p. 976]:

We have already discussed the nature of the principles and values underlying the vigilant protection of free expression in a society such as ours. They were also discussed by the Court in Ford (at pp. 765-67), and can be summarized as follows: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.

In my opinion, the Court needed to include another rationale. And that is tied to humanity’s use of technology in order to be able to express freely. Indeed, in outlining its three principles and values, the Court has focussed on the expression itself and not how, by what modality, that expression is effected. In effect, the Court did not given meaning to the words “including freedom of the press and other media of communication”.

If we were to give value to the technological aspect of freedom of expression, what would that mean? It would mean that the supreme law of the land, the Constitution generally and the Charter specifically, should protect and enhance the technological developments and means by which we express ourselves now and by which we will express ourselves in the future. Thus the Court did the right thing in Crookes v Newton, 2011 SCC 47, where the Court chose to recognize the importance of hyperlinks to the proper functioning of the Internet. On the other hand, in my opinion, Parliament has done the wrong thing where it has targeted torrent search engines by failing to recognize the importance of such technology to the Information Age.

Humans, homo sapiens, has evolved as a species on a social, technological level more than any genetic evolution. We are the same species that painted those painting in the Chauvet Cave 30,000 years ago. But our evolution in the past owes much to our capacity to adapt and change and improve our technology of communication. And our evolution in the future will be inextricably linked to our technological capacity to freely express ourselves as individuals and as a global species.

I remain

Constitutionally yours

Arthur Grant