Library group flags online legislation
`Spectre of censorship' over social media bill
The Liberal government's proposed online harms legislation will “all but guarantee that the system will lead to the mass removal of content,” according to the Canadian Association of Research Libraries.
And that “will impact individual freedom of expression rights, increase the spectre of censorship and damage the historical record,” says the association.
The association has joined civil liberties groups and international organizations who are raising the alarm about the bill, which will mandate that social media and other platforms monitor online posts and remove illegal content.
The bill would target terrorist content, content that incites violence, hate speech, intimate images shared non-consensually, and child sexual exploitation material. Platforms would have to remove illegal content within 24 hours of it being flagged, and a new regulator called the Digital Safety Commissioner of Canada would be in charge of enforcement.
Experts have warned various aspects of the proposal, including the mandatory monitoring and removal of content, as well as sweeping new powers given to the regulator, would violate Canadians' Charter rights.
The Liberals have promised to introduce the online harms legislation within 100 days of Parliament's return on Nov. 22. The Heritage Canada consultation on the government's proposal wrapped up in September, but the government is refusing to release the 423 submissions it received publicly. Some of the documents have been released by the organizations who participated.
A number of those have taken issue with a proposal to require online platforms to report flagged content to law enforcement.
The Canadian Civil Liberties Association wrote that it has significant concerns the proposal would leverage online platforms as “agents of law enforcement, creating mandatory reporting and preservation obligations that may expand over time and significantly impact the privacy rights of Canadians.” It added that the government's proposal to include CSIS is “of particular concern.”
Advocac y group Openmedia warned that the proposal would “lead to the automatic reporting of an enormous volume of lawful content directly to the Royal Canadian Mounted Police (RCMP) and Canadian Security Intelligence Service (CSIS), deputizing online platforms as surveillance agents of the state in a system not seen anywhere else in the democratic world.”
The group wrote that if the government goes ahead with the proposal to require platforms to take down content, such a law “would lead directly and predictably to an unprecedented increase in the removal of considerable legitimate and lawful forms of speech online.”
That's because platforms face “heavy legal and financial risk” if they don't take down content that could potentially be found illegal, and have no “counter-balancing incentive” to consider the poster's rights.
The government has also heard international perspectives on its plans. The coalition Global Network Initiative said aspects of the proposal “appear to be inconsistent with international human rights principles, regulatory best practice, and Canada's leadership on Internet freedom.”
GNI, whose members include Google, Facebook, Human Rights Watch, the Wikimedia Foundation and various academics, said the “proposed approach presents a set of sweeping obligations for (platforms) in Canada that, as framed, could pose significant risks for freedom of expression and privacy.”
Ranking Digital Rights, which advocates for freedom of expression and privacy on the internet, said the proposal contradicts international commitments Canada has made, including to the Freedom Online Coalition and the Global Conference for Media Freedom.
“While Canadians can take comfort in the strength of their democratic institutions, all countries are but one election away from democratic decline and a slide into authoritarianism,” RDR wrote. “Our recent experience in the United States has been a sobering one, reinforcing the importance of balanced institutional powers, good governance, and oversight mechanisms.”
Digital rights advocacy group Access Now wrote that the 24-hour deadline to remove content is unreasonable and onerous. “Strict and short deadlines for content removals cannot be reconciled with international human rights law,” it said, noting that the Constitutional Council of France recently said short deadlines for removing online illegal content were unconstitutional, given their impact on freedom of expression. The UN Special Rapporteur on Freedom of Expression has also previously warned 24-hour takedowns could lead platforms to delete legitimate expression, Access Now said.
Requiring online platforms to monitor content is a violation of freedom of expression, the group argued, noting the Council of Europe and United Nations have spoken out against such measures.
Even some who are in favour of putting in place a regulatory system to address online harms took issue with the government's approach. The Women's Legal Education and Action Fund (LEAF) said that it believes in “regulating hateful, discriminatory, and harmful content” but it can't support the government's proposal as drafted. LEAF said the government is taking the wrong approach in treating five categories of illegal content the same way, and that lumping non-consensual sharing of intimate images in the same legislation as, for example, terrorist content is “highly problematic.”
It also criticized the proposal to require mandatory reporting to law enforcement, noting that while it may be appropriate in the case of child exploitation materials, some individuals have “concerns about, fear of, or prior negative experiences with, police involvement — especially for those who are Black, Indigenous, and racialized.” The group added mandatory reporting “risks the over-criminalization of individuals and puts innocent people at risk of being reported to the police.”
Many of the participants also took the government to task for the consultation itself. They said the consultation shouldn't have been held during the federal election, which made it more difficult to take part. The CCLA pointed out the consultation didn't ask many questions, “suggesting that the government has largely already decided what it intends to do.”