Free flow of information must be ensured

In the eyes of the law, the Internet should be seen as another medium of communication, Avnish Nanda writes.

The Internet pervades nearly everything we do.

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 and rapidly evolving nature 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 ease and instantaneous nature of communication makes the Internet a revolutionary medium. 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 well-established example where Canadian courts have found that in order to protect meaningful expression, 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, 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 indexes 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.

However, the story doesn’t likely end here. Ajit Pai, the Trump-appointed chair of the U.S. Federal Communications Commission, and a well-known opponent to net neutrality, has plans to undermine net neutrality, which could impact our domestic regulations in Canada.

There will likely be more cases where the courts will have to weigh in on the exercise of fundamental freedoms in the digital sphere.

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.