Consulting in Bad Faith? Online Harms Respondents Think So

Another theme in the online harms responses is that this consultation was nothing more than a box to tick.

Another theme throughout the consultation responses is the consultation itself. This does make the other concerns (like the concerns about 24 hour takedown requirements and site blocking) even bigger.

When you have the idea that the government has no intention of listening to you, it really insults the very idea that this whole process was a consultation in the first place. Even I posted my submission, these thoughts were certainly a big thing. It changes the dynamic of the consultation process completely. The whole point of the consultation is to garner feedback and produce improved policy. This just doesn’t feel like what the governments intention was. So, instead of submitting feedback with the goal of helping to generate better laws, submissions were made more as an upfront protest to the governments direction. It’s a very corrosive and damaging dynamic in this process, but one that really does feel like is the reality this time around.

Of course, this isn’t the thoughts of some random blogger screaming into the void. It’s a view widely shared by many who responded to the online consultation.

For instance, Michael Geist noted these concerns with these remarks, ” During the last election campaign, the government promised to move forward within 100 days of its mandate. Given that commitment – as well as the structure of the consultation that reads more like a legislative outline rather than a genuine attempt to solicit feedback – there are considerable doubts about this consultative process. Consultations should not be a box-ticking exercise in which the actual responses are not fully factored into policy decisions. The challenge of reading, processing, analyzing and ultimately incorporating consultation responses within a three month period appears entirely unrealistic. The government should provide assurances that there will be no legislation without taking the consultation responses fully into account.”

Natasha Tusikov and Blayne Haggart also shared these concerns, “We are strongly in favour of government regulation of internet intermediaries and the goal of creating an online environment that is more conducive to socially healthy exchanges. The primary issue when it comes to internet intermediaries is not, should they be regulated by government, but how should government regulate them. However, we have significant substantive and procedural concerns with the government’s proposed approach to address harmful content online. In this note we highlight four in particular:

1. The presentation of a detailed fait accompli before engaging in meaningful, substantive public consultations;
2. The lack of evidence presented explaining and justifying these particular interventions;
3. Its ineffectiveness in addressing fundamental structural problems with social media that give rise to the problems the government says it wants to address.
4. The focus on regulating social media companies overlooks the necessity of regulating the broader digital economy, including online marketplaces and the financial technology industry.”

The Internet Society Canada expressed disappointment in the process as well, “ISCC would like to register its profound disappointment with this ostensible consultative process.

First, it is taking place during an electoral period, despite the fact that its subject matter is composes parts of partisan platforms. This suggests it is inappropriate to be consulting when at least one of the parties, if successful in forming a government, has pre-empted genuine consideration of meaningful suggestions for change.

ISCC notes that the Guide and Technical Paper offer no alternatives and ask no questions of those wishing to make comments. Indeed, the Technical Paper has the air of drafting instructions. It leads to the conclusion that the purpose of the consultation is not to seek public input but to merely satisfy multiple target opinion groups that the Government is doing something to combat what it considers to be Internet Harms.

Neither the Technical paper nor the guide cite any studies or reports that identify the proposed harms as being the ones most urgent of legislative action, nor is it clear how the current content moderation regimes of the social media are failing, or how the Proposal would correct them in a meaningful way. While harm is assumed (and ISCC does not question that there is some harm), there appears to be no examination of alternatives to negate those harms and no research is referenced that would demonstrate that the Proposal would rectify any deficiencies in the existing content moderation regimes.”

OpenMedia had a lot to say about the process:

The consultation presented to us does not have the features of a true public consultation, as has been pointed out by those both supportive and skeptical of new government regulation of Internet platforms. This is nothing more than a formal presentation of a predetermined plan, with an unreasonably short time frame for public comment.

This consultation provides absolutely no opportunity to help shape the framework of either the problem at hand, nor any of the proposed solutions. Rather than a solicitation of public and expert input on what the government should do, the technical paper appears to be a list of what the government will do, regardless of what it hears during the consultation period.

It asks no open-ended questions. It does not solicit any evidence about problems on online platforms, nor does it present any evidence that justifies or explains the systems it proposes. It does not entertain or even reference alternative or complementary approaches to its proposed measures.

This is unacceptable policy-making in a democratic society. But it is particularly egregious as the government considers infringing on our Charter of Rights and Freedoms, and limiting citizens’ ability to participate in the primary public spaces of our era, online platforms. The timing of this consultation is also deeply inappropriate. The deadline for public comment was never published on the consultation page, and the consultation period given in the announcement was too short for substantive public input. But once a federal election was called, this entire consultation should have immediately been rescheduled. This would have comported with Privy Council Office guidance for election periods, as the matters under consideration are very clearly neither routine nor non-controversial.

The overlap with the federal election made public engagement with the consultation significantly more difficult, in part due to regulations placed on third parties in an election, in 2019’s Bill C-76. It was further challenged by the limited capacity of experts, academics, public interest groups, and concerned citizens to speak out and mobilize the general public during an election period, and a time-bound requirement for election participation that distracted from the potential to simultaneously participate in this consultation. OpenMedia strongly suspects that the timing of this consultation has significantly reduced the amount of participation from subject matter experts, whose voices are critical in ensuring a fulsome discussion of such issues and proposals.

The consultation’s irregularities and deficiencies are major reasons it has drawn widespread criticism from a broad swath of both the academic content moderation-focused community, and the civil rights community, in Canada and abroad. It compares very poorly to the more serious multi-year consultations that have been held in jurisdictions that have adopted broadly comparable legislation.

Our participation in this consultation should not be read as acceptance or endorsement of this process. We strongly believe this consultation is utterly inappropriate. However, given the government’s steadfast insistence on proceeding regardless, we feel we have no choice but to submit an insufficient submission, to ensure that at least some of our comments and concerns can be placed on the public record. If, as we recommend, the consultation is abandoned, it should be replaced by a much more fulsome public discussion about how best to encourage sound content moderation practices on Internet platforms.

Recommendation: The government should abandon this inadequate consultation, and the proposals contained within. Instead, it should pursue a genuinely open discussion on these issues, one that solicits evidence from all interested parties on the nature of problems with online content moderation and appropriate solutions that could be entertained to them.

Citizen Lab also expressed their frustrations in the process:

As a preliminary comment, the consultation process undertaken by the government on these proposals has been grossly inadequate.

The public materials, including the “Technical Paper”, are vague, ambiguous, and in some cases contradictory. They fail to address some of the most obvious technical, legal, and constitutional problems they create—including problems that would negatively impact the purported “beneficiaries” of the proposed law. Some elements of the proposed measures are highly derivative of foreign legal regimes (including Germany’s NetzDG regime and the United Kingdom’s controversial Online Safety Bill), but lack the coherence or corresponding safeguards present in those schemes, and fail to respond to the criticism those regimes have faced on human rights grounds. Even the basic scope of what entities will be subject to the proposed measures is fundamentally uncertain because the definition of an “Online Communication Service Provider (OCSP)” is not sufficiently precise as presented, and is subject to further change and indeterminacy through future regulations.

The materials also fail to offer any rational justification or evidence to demonstrate that the sweeping legal reforms proposed are likely to substantially mitigate the problems they purport to address. As a result, the materials lack a sufficient basis for comment and analysis, undermining the very function of a public consultation.

Though this consultation was preceded by a series of private, invite-only meetings between civil society groups and representatives from Heritage Canada and the Department of Justice, there is little to no evidence that the concerns raised by stakeholders at these meetings were accounted for in the government’s proposal.4 The government has been on notice that many of its proposals raise serious ethical, practical, and constitutional doubts since at least 2020, but these issues remain fundamentally unaddressed in the public materials. This failure to adjust course has undermined confidence among many experts and advocates that the function of the present consultation is, in fact, to consult, rather than to retroactively legitimize a series of foregone conclusions.

Finally, the period for written comments—particularly when limited to the end of summer during a federal election and global pandemic—has been insufficient to do justice to the sweeping proposals set out in the consultation materials. We would note that two of us are signatories to a public letter that protested the continuation of this consultation on the basis that it should not have proceeded after the government dissolved Parliament and called a federal election. In our view, it was deeply inappropriate for this consultation to have continued during the caretaker period and we are disappointed that the government has failed to respond to these concerns.

The Canadian Civil Liberties Association (CCLA) noted the deficiencies of the process too, “With respect to process, we note that the government’s proposal for addressing harmful content online was released on July 29, 2021 and the closing date for submissions is September 25, 2021. A federal election was called on August 15 and voters cast their ballots on September 20, 2021. Thus, throughout much of the consultation period, it was unclear whether the government that undertook it would be elected and form a government. As noted in an open letter to individuals in the Privy Council Office and to which CCLA was a signatory, guidance on the activities of government after Parliament is dissolved states that policy work should be limited to routine, non-controversial or urgent areas, or where there is agreement by opposition parties. The online harms policy question falls into none of these categories. It is a complex area that raises fundamental questions about communications in Canada, human rights, corporate social responsibility, and the role of the state in regulating and monitoring Canadians’ expression.”

“This issue deserves careful consideration and meaningful engagement with Canadians. To ask civil society to provide feedback to a government proposal when it is unclear if that government will return to govern is insufficiently respectful of the time and efforts that civil society organizations expend on these kinds of consultations. It is also likely to diminish the breadth and depth of submissions the government receives. Further, the government’s proposal in this case is very detailed and in fact asks very few questions of those interested in participating in the consultation process, suggesting that the government has largely already decided what it intends to do. We strongly believe that a much more robust consultation process should be undertaken as soon as possible.”

So, the consultation was not done well is the overwhelming message. The online harms consultation happened in the middle of a federal election, parts of the proposal were parts of political party platforms, the “technical paper” fails to ask open ended questions about key aspects, no alternative idea’s were put forth, the consultation was short, and there doesn’t appear to be any indication that the responses would influence the law making process – relegating this exercise to what appears to be an exercise in ticking a box. As such, many are asking for, at the very least, further consultative process. Others called for this consultation to be abandoned in favour of a more appropriate consultation process.

All in all, the case against the process is certainly a fantastic case. It’s really hard to dispute any of this because it’s dead simple to fact check and confirm all of these points. whether or not this concern will be heard remains unclear (and probably unlikely). Still, it’s good to confirm that this is a believe shared by so many in the process.

Drew Wilson on Twitter: @icecube85 and Facebook.

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