Also “unconstitutional” and “presumptuous”
It seems to be a law of human nature to take the fastest available remedy to rid oneself of an immediate problem, only to find that the remedy is worse than the original problem. Think of the German High Command sending Lenin to Russia in 1917. That worked, for Russia imploded in revolution, but the consequences turned out not quite as foreseen at the time, particularly for Germany.
So it is with the government’s online harms proposals. These were put out for consultation during the election and the responses have not been made public. Possibly they might be embarrassed by the nature and vehemence of the opposition that they have elicited.
The Internet Society Canada Chapter conducted a thorough study of the proposals. We do not doubt that people’s conduct on social media can pose a challenge to the tenor and sustainability of both polite and democratic discourse. Nor is there doubt that members of certain minorities and affinity groups are singled out for abuse that is vile and threatening.
What is to be done?
ISCC answered the consultation with this answer: not what you are proposing. Here are our findings:
- The proposals mix five radically different sorts of harm into one statute. Each type of harm has been governed so far by a different legal standard established by courts. This is to end.
- The definitions of the harms are to be governed by a cabinet decision, so that the definitions will depart from accepted legal boundaries by the effect of political decisions.
- The proposed law is intended to apply anywhere in the world, so that all linkage to Canada is broken.
- The law is meant to cause the media platforms (also nowhere defined) to engage in massive censorship of users (called content moderation) in order to meet government-established standards.
- The platforms are to engage in a massive program of notification to law enforcement and security agencies of harmful content.
- The law assumes as a fact that some groups (racial, sexual or ethnic) are more often targeted than others, that this pattern is permanent, and that the government’s nominees to the proposed censorship bodies are to be drawn predominantly from these affected groups.
- The proposals foresee the creation of a digital recourse council, a digital safety commissioner, and an advisory council to manage the appeals from decisions of platforms and in general to constitute the machinery of government in this area.
- Whopping administrative monetary penalties may be levied on noncompliant platforms.
The Internet Society Canada Chapter’s main conclusions were that:
- The regime as proposed is almost entirely unenforceable, applying as it does to entities who conduct no operational functions in Canada.
- The proposed legislative scheme is contrary to the guarantees of free speech enshrined in the Canadian Charter of Rights and Freedoms as it applies to lawful speech. The Charter protects not only the expressive rights of Canadians but the right of Canadians to access the expression of others. The proposal, on its face, violates those rights.
- The powers that the proposal would confer on Cabinet are an affront to our Parliamentary system. As proposed, Cabinet would have both the power to unilaterally mould the definitions of harms and to extend the entities to which the legislation would apply.
- The timeframes for decisions to be made by the platforms are so compressed that they would not be able to deliberate effectively.
- The proposed harms are too diverse to be treated within the same regime. The variety of content to be judged by the members of the Digital Resource Council exceed the capacity of any group of humans to deliberate upon effectively.
ISCC found the proposals to be unconstitutional on their face, preposterous in their pretension to be universally applicable, and presumptuous in their anticipated effectiveness. Our problem in considering the government’s proposals was their audacity: their complete abandonment of any concern for liberal principles. Parliamentary regimes throughout the world have, at heart, been based on rational discussion, compromise and rule of law. To see a government propose to throw out all these principles at the same time signals dark days ahead.
Tim Denton
Chair of the Internet Society Canada Chapter
