I don't think it should ever be criminal, but I think there should at least be some avenue for civil litigation. It'd be a rational follow-up to the lawsuits against Phillip-Morris, etc...
What is illegal is to make false or misleading representations for the purpose of promoting a product or a business interest. As noted on the website of the Canadian Competition Bureau:
The misleading advertising and labelling provisions enforced by the Competition Bureau prohibit making any deceptive representations for the purpose of promoting a product or a business interest, and encourage the provision of sufficient information to allow consumers to make informed choices.
The false or misleading representations and deceptive marketing practices provisions of the Competition Act contain a general prohibition against materially false or misleading representations. They also prohibit making performance representations which are not based on adequate and proper tests, misleading warranties and guarantees, false or misleading ordinary selling price representations, untrue, misleading or unauthorized use of tests and testimonials, bait and switch selling, double ticketing and the sale of a product above its advertised price. Further, the promotional contest provisions prohibit contests that do not disclose required information.
See:
http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/02776.html
Under the Canadian
Competition Act the making of false or misleading representations for the purpose of promoting a product or a business interest can give rise to criminal or civil sanctions. Section 52 of the
Act, which provides for criminal sanctions, states as follows:
False or misleading representations
- 52. (1) No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.
- Marginal note: Proof of certain matters not required
- (1.1) For greater certainty, in establishing that subsection (1) was contravened, it is not necessary to prove that
- (a) any person was deceived or misled;
- (b) any member of the public to whom the representation was made was within Canada; or
- (c) the representation was made in a place to which the public had access.
- Marginal note: Permitted representations
- (1.2) For greater certainty, in this section and in sections 52.01, 52.1, 74.01, 74.011 and 74.02, the making or sending of a representation includes permitting a representation to be made or sent.
- Marginal note: Representations accompanying products
- (2) For the purposes of this section, a representation that is
- (a) expressed on an article offered or displayed for sale or its wrapper or container,
- (b) expressed on anything attached to, inserted in or accompanying an article offered or displayed for sale, its wrapper or container, or anything on which the article is mounted for display or sale,
- (c) expressed on an in-store or other point-of-purchase display,
- (d) made in the course of in-store or door-to-door selling to a person as ultimate user, or by communicating orally by any means of telecommunication to a person as ultimate user, or
- (e) contained in or on anything that is sold, sent, delivered, transmitted or made available in any other manner to a member of the public,
is deemed to be made to the public by and only by the person who causes the representation to be so expressed, made or contained, subject to subsection (2.1).
- Marginal note: Representations from outside Canada
- (2.1) Where a person referred to in subsection (2) is outside Canada, a representation described in paragraph (2)(a), (b), (c) or (e) is, for the purposes of subsection (1), deemed to be made to the public by the person who imports into Canada the article, thing or display referred to in that paragraph.
- Marginal note Deemed representation to public
- (3) Subject to subsection (2), a person who, for the purpose of promoting, directly or indirectly, the supply or use of a product or any business interest, supplies to a wholesaler, retailer or other distributor of a product any material or thing that contains a representation of a nature referred to in subsection (1) is deemed to have made that representation to the public.
- Marginal note: General impression to be considered
- (4) In a prosecution for a contravention of this section, the general impression conveyed by a representation as well as its literal meaning shall be taken into account in determining whether or not the representation is false or misleading in a material respect.
- Marginal note:Offence and punishment
- (5) Any person who contravenes subsection (1) is guilty of an offence and liable
- (a) on conviction on indictment, to a fine in the discretion of the court or to imprisonment for a term not exceeding 14 years, or to both; or
- (b) on summary conviction, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both.
Thus intentionally making untrue statements, for the purpose of promoting a business interest (e.g., the sales of fossil fuels), may (quite appropriately in my view) give rise to substantial criminal penalties of up to 14 years imprisonment or to fines in the discretion of the court.
These laws have nothing to do with freedom of speech, but are intended to serve to prevent corporations from directly making statements that they know to be false and misleading with respect to climate change (and other matters in which they have a commercial interest). This is part of the legacy of the
Phillip-Morris case and other similar cases involving false and misleading representations.
This leads to questions about the ongoing sources of disinformation to oppose public interest action on climate change: by whom and how are such campaigns being organized and funded? I would nominate the corrupt political system and dark money as two apparent answers to this question.
To those who are still laboring away in this and other venues to persuade others that manmade climate change is a hoax, please note that Exxon, Shell and the other major fossil fuel companies now acknowledge the reality of manmade climate change. They now recognize, despite the compelling economic reasons for them to deny climate change, that the scientific evidence is so overwhelming that to deny it would expose them to legal liability on the same legal theories used against the denier corporations in the tobacco industry. The fact that the fossil fuel companies, which clearly have the most (on the order of thousands of billion of dollars) to lose from effective regulatory action on climate change, have, after a careful and exhaustive review of the evidence by the best scientists that money can buy, concluded that there is no plausible basis whatsoever upon which to challenge the accuracy or the validity of climate science would seem to be clear and conclusive evidence that there is no longer any real debate, that the science is valid, and it has now been conclusively demonstrated that manmade emissions are in fact causing climate change (as has been agreed by every national and international science academy and other similar scientific bodies for a number of years).