Court challenge to fake news rules is a good thing

Michael Karanicolas fears chilling effect on speech.

Recently, the Canadian Constitution Foundation announced that it was launching a charter challenge against new rules which criminalize the distribution of “fake news” during an election campaign. While most Canadians would probably agree about the importance of promoting honesty and integrity in communications, the new law goes far beyond targeting organized disinformation campaigns.

Rather, the criminal provisions apply to any communication made with an intent to impact an election, a standard that would include just about all political commentary, from a documentary series to a single tweet. Criminal penalties now apply to factual misstatements about anything from a candidate’s “professional qualifications” to their “membership in a group or association.” In other words, Canadians had better be careful before they claim a particular politician is a “socialist” or a part of the “alt-right,” since getting a statement like that wrong could lead to up to five years in prison. To make matters worse, the law contains no requirement that the speaker must know that the statement they are making is false.

Journalists have particular cause for concern. Unlike Canada’s defamation laws, which allow for a defence based on having followed responsible professional practices, the new “fake news” rules contain nothing of the sort. There isn’t even an exception for parody or satire, so you’d better not joke about a candidate’s lack of qualifications.

While it seems unlikely that the law will actually be enforced against common mistakes, jokes or political hyperbole, this kind of flexibility is incredibly problematic in laws governing speech, since it gives the government a potential weapon to wield against its critics and opponents. Even without enforcement, over-broad content restrictions can exert a chilling effect against legitimate speech, particularly when a prison term is attached to the offence.

There is a reason almost no other democracy criminalizes “fake news.” The drift in how the term has been employed by U.S. President Donald Trump, ultimately to refer to any messages which contradict his own narrative, is illustrative of the potential dangers, and shows why laws like this need to be crafted narrowly and with great care.

Against these potential problems, Canadians should question whether the legislation is likely to be effective in addressing the issue. Certainly, it is unlikely that the law could be used to apprehend, or even meaningfully deter, state-sponsored interferences of the type which played havoc with the 2016 U.S. election and with the Brexit referendum.

Hopefully, the coming charter challenge will restore some semblance of constitutional order. At the very least, it should allow the courts to carve some reasonable exceptions into the law, such as reading-in defences for responsible journalism, satire and unintentional mistakes. Even better would be for the court to push the government to go back and try again, prompting a more earnest effort to create a response to the challenge of disinformation which does not undermine our core constitutional guarantees. There are a number of alternatives to criminal restrictions, including pushing for algorithmic transparency among platforms, public education and greater support for fact-checking and traditional journalism.

In a democratic society, political speech, and in particular speech around elections, cuts to the core of freedom of expression. This does not mean that elections should be a free-fire zone, where rules impacting speech do not apply, but merely that restrictions must be carefully considered in line with their targeting and proportionality. This delicate balance between deference to diverse views and safeguarding against manipulation is among the trickiest areas of law and regulation, and one which is made even more complicated by the advent of social media as a vector for foreign interference.

Nonetheless, it would seem to be self-defeating if, in our efforts to safeguard our democracy, we undermined the constitutional structure on which the entire system rests.

Michael Karanicolas is a Resident Fellow at Yale Law School, where he leads the Wikimedia Initiative on Intermediaries and Information. He is also the author of a paper on regulatory responses to fake news, upcoming in the Canadian Journal of Law and Technology. Twitter: @M_Karanicolas.