University law professor, Michael Geist, has now published his response to the online harms proposal.
There is a growing chorus of opposition to the online harms proposal. At first, it was just me publishing evidence that someone is standing up to this. After that, the Internet Society Canada Chapter publishing their concerns about the proposal, echoing a number of the complaints I raised. Yesterday, the Independent Press Gallery of Canada also published their response to the proposal. They basically join the wave of concern about the proposal.
Now, we are learning that Michael Geist has also joined the chorus of those who oppose the proposal. Geits, of course, has done a lot to bring to light some of these laws and proposals in the early stages. So, it’s not exactly a huge surprise to see his voice added to the opposition officially. In this instance, Geist says that this proposal is a failure to balance freedom of expression and protecting against online harms. From his posting:
3. The proposed approach mistakenly treats a series of harms – spreading hateful content, propaganda, violence, sexual exploitation of children, and non-consensual distribution of intimate images – as equivalent and requiring the same legislative and regulatory response. While there is a commonality between these harms as so-called “illegal speech”, there are also significant differences. For example, it makes no sense to treat online hate as the equivalent of child pornography. By prescribing the same approach for all these forms of content, the efficacy of the policy is called into question.
4. There are lingering concerns about scope-creep with this proposal. Government officials have previously referenced the need to address “harmful” or “hurtful” comments, raising the prospect of expanding the model far beyond the current five forms of illegal speech cited in the proposal. Moreover, the government has indicated that these rules apply only to OCSs, identifying Facebook, Youtube, TikTok, Instagram, and Twitter as examples. It notes that there will be an exception for private communications and telecommunications such as wireless companies, Skype and WhatsApp (along with products and services such as TripAdvisor that are not OCSs). Yet during a briefing with stakeholders, officials were asked why the law shouldn’t be extended to private communications on platforms as well, noting that these harms may occur on private messaging. Given that the government previously provided assurances of the exclusion of user generated content in Bill C-10 only to backtrack and make it subject to CRTC regulation, there is a need for renewed assurances about the scope of the rules.
5. The proposed approach envisions a massive new bureaucratic super-structure to oversee online harms and Internet based services. Due process concerns dictate that there be a suitable administrative structure to address these issues. However, some of the proposed models are ill-conceived that will not scale well nor afford the much-needed due process. For example, adjudicating over potentially tens of thousands of content cases is unworkable and would require massive resources with real questions about the appropriate oversight. Similarly, the powers associated with investigations are enormously problematic with serious implications for freedom of the press and freedom of expression.
6. The proposed approach threatens Canada’s important role as a model for the rest of the world. Some of the proposals risk being deployed by autocratic countries to suppress freedom of expression with Canada cited as an example for why such measures are reasonable. The government should be asking a simple question with respect to many of its proposals: would Canadians be comfortable with the same measures being implemented countries such as China, Saudi Arabia, or Iran. If the answer is no (as I argue it should be), the government should think twice before risking its reputation as a leader in freedom of expression.
7. The proposed approach also threatens to harm the very groups it purports to protect. Without full due process and with clear incentives to remove content, there are real fears that the rules will be used to target BIPOC communities and vulnerable groups. Those groups could be silenced by a process that is weaponized by purveyors of hate with their voices removed due to poorly conceived rules that do not feature adequate due process.
8. 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.
The PDF of his submission is in the posting itself. You can also see it here (PDF). The submission also raises the concern about the hair-trigger 24 hour time window to take content down. This has been a universal criticism because it encourages a “shoot first, ask questions later” approach. It was not only criticized domestically, but also in the international community as well.
We hope to see more responses to the online harms “consultation” because the more submissions that oppose this are publicly known, the more opposition can mount a defence when the Canadian Liberal government decides to ignore what Canadians want and march ahead with this anyway.
For those wondering where the government is at this stage, we are currently waiting for the cabinet shuffle and ensuing Speech from the Throne. The promise is that this will be completed before the end of the Fall. According to the parliamentary schedule, the first sitting day for the House of Commons is scheduled to be on the 18th of October. So, we still have some time to go, but it is coming up soon. By that point, things should be rolling ahead for the Canadian government.
In the mean time, Canadian’s are mounting a nice defence against all of this. The “consultation” window for this is over. So, if you wanted to make a submission, but haven’t yet already, you won’t be able to now. However, Open Media has a petition for Canadians to sign so they can send it to government. That is still an avenue for Canadian’s to have their voices heard on this matter. It’s still recommended that people sign this petition at this stage. We’ll find out how all of this will play out in the weeks ahead, but it is promising to see so much opposition to this proposal in the first place.