from the it's-very-bad dept
A few months ago, we wrote about the Canadian government’s attempt to give its broadcast regulators sweeping new powers to regulate social media via Bill C-10 — a massive piece of legislation that seemed to only get worse over time thanks to unclear, ever-shifting provisions and a rushed, secretive amendment process before being passed by the House of Commons in the middle of the night. That bill is now in limbo in the Senate, and Canadians are waiting to see if it will come back in the September session or be preempted by an early federal election. Unfortunately, the stalling-out of Bill C-10 hasn’t put a stop to the ruling Liberal government’s efforts to create unprecedented new powers of internet regulation, and now their ongoing campaign is continuing with a technical paper outlining plans for more new legislation to address “harmful online content”.
The planned bill is supposed to address five categories of content: terrorist content, incitement of violence, hate speech, non-consensual sharing of intimate images, and child sexual exploitation material. This apparently noble goal masks a wide range of utterly disastrous plans for stringent regulation that belong in the hall of fame for bad internet policy. The effort is headed up by Heritage Minister Steven Guilbeault — the same Minister whose astonishing inability to answer questions about Bill C-10 all but confirmed that the law would do far more than its stated intent. In theory, the release of this technical paper is kicking off a public consultation, but the rushed and secretive procedure that happened with C-10 has left most observers completely unconvinced that the government will be genuinely receptive to even good-faith criticisms of the plan or its potential impact on free expression in Canada. Michael Geist describes it as:
…a process billed as a consultation, but which is better characterized as an advisory notice, since there are few questions, options or apparent interest in hearing what Canadians think of the plans.
… The perspective on [Online Communications Services] is clear from the very outset. After a single perfunctory statement on the benefits of OCSs which says little about the benefits of freedom of expression ? the document does not include a single mention of the Charter of Rights and Freedoms or net neutrality ? the government proceeds to outline a series of harms.
So just what would this proposed bill do to address its list of harmful content? It would establish a huge new web of bureaucracy consisting of a Digital Safety Commission, a tribunal to rule on content takedown demands, and an advisory board to shape ongoing social media regulation. Through this framework, “Online Communications Services” (the government lists Facebook, YouTube, TikTok, Instagram, and Twitter as examples) would face expansive new requirements, such as taking down content the bureaucrats deem unsuitable within 24 hours (we discussed how unrealistic and dangerous this is when the EU had the same idea) and adhering to new pro-active monitoring and reporting requirements that will force them to turn over information on Canadian users directly to federal law enforcement. The new Digital Safety Commissioner would have the power to determine whether their monitoring efforts are sufficient, including whether or not the use of AI tools is acceptable. This could have any number of consequences, all of them bad: aggressive over-blocking of content, invasive monitoring of users even in private messages (though the government insists private communication will not be covered, this government’s history of failing to uphold its promised limits on internet legislation does not inspire much confidence), and Canadians getting visits from the feds for engaging in protected speech.
If platforms fail to comply with the requirements they could face hefty penalties, and ultimately the government could play its trump card: ordering all Canadian ISPs to block access in the country, depriving all Canadians of powerful tools for free expression because the companies were unable to meet impossible requirements. That’s assuming that many platforms don’t just stop operating in Canada themselves in order to avoid the stifling regulatory framework, because if you’re wondering where these takedown demands will come from and what the required remedies will look like, the answer is… almost anyone, and almost anything:
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:
The proposed legislation will create new regulatory charges for OCSs doing business in Canada to cover the costs of the regulatory structure as the companies will pay for the Digital Safety Commissioner, the Digital Recourse tribunal, and the Digital Commission. As part of the payment requirements, the Digital Safety Commissioner can demand financial disclosures from OCSs to determine ability to pay and Canadian revenues.
And once again, because it’s worth reiterating: the document outlining these plans never once mentions the Charter of Rights and Freedoms or, even in general, the right of Canadians to free expression.
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.
If Bill C-10 is any indication, the House of Commons will rush this proposal through and frame opposition as bad-faith partisanship, while constantly tweaking the specifics in ways that will make it difficult for the public to even know precisely what the final bill says and does. The strongest obstacles to its passage are the Senate and the looming possibility of an early election, but Canadians can’t rely too heavily on either of those things. It will take a truly massive deluge of official public comment submissions (accepted until September 25th), as well as pressure on Members of Parliament and some good old public outrage, to stand a chance of making this government pause before barreling forward with this disastrous plan.