Protect online expression by treating the Internet like the press

Information must be allowed to flow freely online, says Avnish Nanda.

The Internet pervades nearly everything we do, from reading this article to ensuring the mortgage or rent is paid on time.

Its rapid ascendance has disrupted social, economic, and legal orders, creating new hierarchies and approaches that have transformed how we understand politics, commerce, and expression. And while we have quickly adapted to the digital revolution in many respects, courts and governments alike in Canada have had difficulty reconciling the protection of fundamental freedoms with the Internet.

Fixation over the Internet’s seemingly limitless boundaries has prevented us from regulating the Internet for what it is: a medium of communication. This recognition can ensure that free expression can be better protected, as Canadian law has a long history of rigorously defending this right when exercised through other media of communication, such as the press and picketing.

The Internet is the system of interconnected global computer networks that facilitates the exchange of information through servers, fibre-optic or copper wires, and other pieces of physical and digital infrastructure.

The ease and instantaneous nature of communication makes the Internet a revolutionary medium of communication. Like expression, media of communication are constitutionally protected in Canada under the Charter of Rights and Freedoms. The clearest example is the press. Canadian courts have long recognized that the press is integral to the functioning of our society, and in order to facilitate the exchange of information through the press, and its constituent parts such as journalists, newspapers, and other participants, it must be provided particularized constitutional protections to ensure its robust functioning.

This understanding led to the constitutional protection of the open court principle, which permits journalists to freely enter and report on legal proceedings in Canada, unless grounds for a publication ban are proven.

Labour picketing is another example where courts have found that in order to protect meaningful expression through the medium, constitutional recognition must also be given to pamphleting, secondary picketing, and videotaping picket lines.

The Internet, like the press and picketing, is an essential medium of communication in Canada, and not only should expression through it be protected, but the mechanisms that allow expression to flourish through it should also receive constitutional protection. This includes principles such as net neutrality, which requires Internet service providers and governments to treat all information on the Internet equally, regardless of who published it, where it is published, and on what topic.

This is not a concern in the abstract. In 2011, the Supreme Court of Canada considered an argument that would have hyperlinking to defamatory content be treated the same as publishing the defamatory content. Fortunately, the court refused to agree, finding that identifying both acts as being the same “would have the effect of seriously restricting the flow of information and, as a result, freedom of expression” over the Internet.

Last December, the Supreme Court of Canada heard another appeal regarding the circumstances under which search engines can be forced to delist websites from their indices that have not been proven to contain unlawful content. The lower courts in British Columbia that heard the case initially did not consider the impact of such orders on free expression online.

This past week, the CRTC ruled that Internet service providers cannot engage in differential pricing practices, creating a net neutrality policy that many consider to be the most robust in the world.

There will likely be more cases where the courts will have to weigh in on the exercise of fundamental freedoms in the digital sphere, including around net neutrality and access to information online. Rather than getting lost in the unique features of the Internet, courts and policymakers would be better suited to regulate the Internet as they have other important media of communication in Canada: by imposing robust protections to ensure information can flow freely through the medium.