Canada’s Online Harms Proposal Sparks Near Universal Condemnation

Reaction is pouring in over Canada’s online harms proposal. Reaction so far has been pretty universally opposed to this.

The Canadian online harms proposal was more or less made public earlier. The proposal envisions a stunning rebuke to the free and open Internet. If made law, it would all but shut down the open Internet and threaten to run those who chose to stick around into bankruptcy. We issued a response to the consultation not consultation. We even clarified the status of where this proposal is at in the big legislative picture as well.

Of course, it isn’t just us and Michael Geist speaking out against this dangerous proposal. Others have reacted to the proposal. Canadian Lawyer ran an article detailing the various reactions from the legal community. The reactions were generally negative:

The plan poses problems for Charter protections such as freedom of expression and protection against unreasonable search and seizure, say two lawyers who spoke with Canadian Lawyer. Another says that, while “the devil is in the details” and more will be revealed when a bill is drafted, the underlying purpose of providing victims of online harms a more practical recourse is welcome and necessary.

“We think it’s a solution in search of a problem,” says Joanna Baron, executive director of the Canadian Constitution Foundation (CCF). “We think that there are already… criminal code provisions against this speech. And so, I’m not sure what the justification is for building a regulatory superstructure with enhanced police powers.”

A significant concern for Fraser and Baron is the proposal of a 24-hour take-down requirement for harmful content.

The quick turnaround works for content that is clearly illegal, but anyone familiar with content-moderation decision-making on internet platforms knows there is “a whole lot of grey area,” says Fraser. Complicating the matter further is that algorithms, as well as people, will be doing the moderating.

“Can you determine whether or not content that relates to terrorism is likely to incite terrorism, or whether it’s just about terrorism?” says Fraser.

Faced with significant fines, platforms will err on the side of caution and take down content simply because they received a complaint, he says.

“I think that is probably the most significant new rule in terms of freedom of expression,” says Baron.

Daphne Keller, a Platform Regulation Director for the Stanford Cyber Policy Center, also commented on this issue.

Something terrible is happening in Canadian Internet law, and the people who care in the rest of the world are mostly stretched too thin to pay attention.

She offered a whole Twitter thread detailing what she thinks about this in general, but agrees that the ideas put forth in the Online Harms technical paper is terrible.

Meanwhile, Leigh Beadon of Techdirt described the proposal as a “war on Internet freedom“:

In order to enforce these rules, the public could file complaints with the Digital Safety Commissioner. The new commissioner would be empowered to hold hearings on any issue, including non-compliance or anything that the Commissioner believes is in the public interest. The Digital Safety Commissioner would have broad powers to order the OCSs “to do any act or thing, or refrain from doing anything necessary to ensure compliance with any obligations imposed on the OCSP by or under the Act within the time specified in the order.” Moreover, there would also be able to conduct inspections of companies at any time.

Yes, the government wants to give a new commissioner the power to basically set any rules they want about how online platforms operate, for any reason, so long as it can be framed as a matter of “public interest” — and to be able to conduct random inspections to ensure compliance. It also provides extremely wide latitude for the commissioner to hold hearings in secret if the issue can be said to impact privacy, national security, international relations, national defense or confidential commercial interests, among other things. And that’s not all: the planned legislation would also grant Canada’s national intelligence service, CSIS, new powers to secretly investigate online threats.

And, for the pleasure of facing all these stringent new requirements that would make operating in Canada extremely unappealing if not impossible, online platforms get to foot the bill

It’s hard to imagine a more appalling, arrogant move by this current government, even after its long history of trying to clamp down on the internet with powerful new regulations. These proposals are not new ideas: they’ve been floated and sometimes attempted in countries all over the world for years, and the huge problems they present have been discussed and dissected many times. But the government hasn’t even paid lip service to criticisms and counterarguments, and its invitation for public comment feels perfunctory and irrelevant rather than sincere — especially with Minister Guilbeault’s track-record of ignoring such criticism and failing to give clear answers to important questions.

Dan Albas commented that the proposal would put Canada in line with authoritarian countries:

A reminder that it’s already against the law to post unlawful content like child pornography or terrorist recruitment/financing. What is being proposed by the Trudeau Government & its scope are significant, placing Canada alongside a number of authoritarian & illiberal countries.

Unfortunately, there is little to no hope that any voice of reason will be listened to in this debate. Canadian Heritage Minister, Steven Guilbeault says he’s moving forward with this plan. From Globe and Mail:

Despite a campaign being anticipated soon, Canadian Heritage Minister Steven Guilbeault said the new online harms bill would be introduced as a top priority “very early on when the House resumes its work in the fall.”

“We’re hearing loud and clear from Canadians that something needs to be done about online hate,” Mr. Guilbeault said in an interview.

“What we’re presenting is what we feel is the best course forward, but we want to hear Canadians on that, and that’s what we’ll be doing in the coming weeks.”

The government has posted details of its proposed approach on the Canadian Heritage section of its website and is asking the public to provide feedback by e-mail. The potential legislation would apply to sites such as Twitter, Facebook and YouTube, but would exclude private communication channels such as WhatsApp and telecommunications networks.

So, a very top down approach for lawmaking where the lawmaker wants to dictate what the laws are no matter what. So, same approach taken with Bill C-10. It really shows that the Minister has learned nothing from the last total disaster that was on his hands. With a lack of learning from history, it seems we’ll be in for another round of this style of lawmaking the next time around too.

Drew Wilson on Twitter: @icecube85 and Facebook.

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