In Canada, there are a variety of attempts to regulate the online realm in a way that some experts warn could seriously erode our freedoms of expression in Canada. Michael Geist, a professor of law at the University of Ottawa, has been one of the main voices speaking out about this important issue, and he s recently unearthed some interesting government documents that we ll also be discussing.
00:02:18.360But in Canada, there are now a variety of attempts to regulate the online realm in a way that some experts warn could seriously erode our freedoms of expression in Canada
00:02:28.240and pretty much all of these attempts right now are coming from Prime Minister Justin Trudeau and his Liberal government.
00:02:34.160Let's take a look at those various pieces of legislation and try to figure out what's exactly going on here.
00:02:40.800He is Professor of Law at University of Ottawa and the Canada Research Chair in Internet and E-Commerce Law.
00:02:45.440He has been one of the main voices speaking out about this important issue, and he's recently unearthed some very interesting government documents that we'll also be discussing.
00:02:54.220Professor Geist, welcome to the program.
00:03:02.100There's no shortage of legislative initiatives right now, and many of them, as you suggest, involve the Internet and have implications for a wide range of freedoms and issues online,
00:03:14.260and certainly freedom of expression would be at the very top of the list.
00:03:16.820Yeah, and it's great to have you on because we can do the in-depth analysis going piece by piece on all of this.
00:03:21.460But first of all, I've got to be blunt, would you say it's fair to say that Justin Trudeau is effectively trying to censor what people can and can't say online right now?
00:03:32.220No, to be honest, I wouldn't say that.
00:03:34.240I would say that the government is seeking to bring a new level of regulation to the Internet, and in the trade-offs between freedom of expression and addressing either cultural policy or online harms or a range of different issues,
00:03:51.740I think that it's, in many instances, cast aside some of the safeguards and expression rights.
00:03:58.300But I'm not sure that, I don't think it would be fair to say that what the government is trying to do is to censor what people say online.
00:04:05.300And can that be an unintended consequence of what's going on right now in terms of the regulatory progression?
00:04:12.300I think there's no question, but that some of the policies that are being considered have real implications, certainly for people's speech and expression to be widely distributed, certainly has their implications there.
00:04:28.300There's powers that are being given or contemplated to be given to regulators like the CRTC that clearly have implications for expression.
00:04:37.220So, you know, I think it's touching on a lot of these issues.
00:04:40.220Do I think the government is going to get in and stop someone from tweeting a particular piece of content or posting a blog post?
00:04:48.200It's not clear to me that the legislation targets that unless that speech is in the realm of speech that is already illegal speech in Canada.
00:04:57.580One of the things that's interesting is we're currently delving back into a discussion that we had well over a decade ago in Canada about a section of the Canadian Human Rights Act that would have allowed dealing with things that people say that can subject others to harm in kind of very amorphous descriptions here.
00:05:16.300You talked about already illegal forms of speech and obviously there are outright threats and there's libel and defamation and robust laws and already legal framework around that.
00:05:25.240But in a lot of these discussions here, online harms, I know we're going to talk about that a lot and you've got a lot to say on online harms, talking about these matters, things that a new digital safety commissioner, that that position may be in the role of limiting posts or activities that run afoul of these things.
00:05:45.280Do we have this murky terrain now where we're delving into things that aren't just, to your point, previously prescribed issues?
00:05:54.380And we should note that online harms at this point in time is not a bill yet.
00:05:59.360There are a couple of other bills that are worth talking about.
00:06:02.540That's one that, you know, the government, I think, intended to bring forward as a piece of legislation.
00:06:07.640They held back, I think many believe, in light of some of the communication challenges, shall we say, of the former heritage minister, Guy Bowe, and instead consulted and gave a sense of here's the roadmap that they want to take.
00:06:19.960You know, in that consultation, they did limit its scope to what they characterized as illegal harms.
00:06:27.580But, you know, once you start putting into place, you know, different oversight mechanisms, I think there are risks involved in terms of just how broadly defined some of these issues become and the implications those might have for how people engage with the online environment.
00:06:46.680And back when he was heritage minister, he is now environment minister.
00:06:49.560He said in spring 2021, so about a year ago, he talked about how Canada's world-renowned public servants need to be free from facing online criticism.
00:07:02.320My colleague, Lauren Gunter, wrote a column about this in the Post Media Papers.
00:07:05.200You also posted about this, though, on your blog, michaelgeist.ca, back last May, concerns about the way Stephen Gaubeau was talking about that.
00:07:12.040So, again, I wonder, you know, how did these things factor into what is the mindset that the government's coming at this legislation from?
00:07:24.200And I think it's fair to say that Gaubeau, you know, not only was a poor communicator, but I think that he often took a perspective that, you know, in the trade-offs between freedom of expression and safeguards against different kinds of harms, tend to decide what the safeguards and, you know, freedom of expression seemed to be of a lesser concern for him.
00:07:46.720I must admit that I think that he often struck the balance wrong.
00:07:50.740I think these bills often strike that balance wrong, and I think that it makes them vulnerable to constitutional challenge down the road.
00:07:59.920But, you know, but I will say that, you know, I think he himself, it seemed like, sometimes struggled with the scope of his legislation.
00:08:08.900So he talked at times about harmful comments or hurtful comments, and there was at one point in time a belief that there would be an attempt to bring forward legislation that would target that.
00:08:18.660By the end, they retreated a bit, focusing specifically on illegal harms.
00:08:23.920One would hope that, you know, officials from Justice and elsewhere had a conversation about what the Canadian Charter of Rights and Freedoms meant and what those implications would be.
00:08:37.660It seems like maybe they wanted to do things a bit more aggressively than they have, but then because of what senior advisors have said and from hearing from experts such as yourself draw attention to the matter, maybe they backed down and the original intent was broader?
00:08:51.240When it comes to the online harms and the consultation that we got, I think it's pretty clear that the intent initially was to go broader.
00:08:59.580In fact, Bo did talk about a scope that was broader than just the illegal harms, you know, by the end or in the last number of months when he was promising legislation in a matter of days or weeks that ultimately never actually came.
00:09:15.020It was this consultation instead, there was a retreat back specifically to the illegal harms.
00:09:20.520I don't know that it's certainly anything that I had to say or that the broader public had to say when it came to that.
00:09:25.280I would hope that at a minimum there's some, you know, there's a constitutional review of legislative initiatives and that the government simply can't put forward legislation that targets legal speech and seek to crack down on it without really going through, I think, a really significant, rigorous constitutional analysis.
00:09:52.340They can't or they shouldn't because I feel like, you know, there's multiple pieces of legislation right now about regulating the online realm.
00:10:00.980And I feel like it's definitely something that has inertia for them.
00:10:04.600I think it's clearly not just a side piece.
00:10:09.540Yeah, I would say that, you know, I have real concerns about the legislation that they brought forward.
00:10:14.500I think that they are vulnerable on both constitutional grounds in some cases, as well as on trade grounds in terms of some of the undertakings that we've made for trading partners.
00:10:24.760You sometimes get the feeling that some in government simply want to be able to hold up a mission accomplished sign and say, hey, we brought forward legislation.
00:10:34.620We've tried to deal with this issue and leave the real complications down the road for someone else, in a sense, to deal with.
00:10:43.100And so I think that whether that's failing to provide real details about how their legislation around, say, online streaming will function and just leaving much of that to the CRTC.
00:10:54.220Dealing with the online news piece and, again, leaving much of the questions to future regulations of the CRTC or dealing with online harms now just in a consultation with a myriad of questions that were raised and concerns that were raised by really groups from across the spectrum.
00:11:10.700And in a sense, saying, well, someone else will have to figure that out.
00:11:14.420And I think that that's just it's a terrible mistake to take that approach, that it's simply not good enough to say, OK, hey, we put forward legislation and if a court strikes it down or if a regulator goes too far, well, that's not our fault.
00:11:28.740It's, I think, incumbent on a government to provide as much specificity and to sort these issues out and to come forward with something that can confidently pass muster.
00:11:38.100And I think there are real questions about some of the bills that have been put forward.
00:11:41.620Professor Geist, one of the things that I find challenging about just having these discussions is that there are many moving parts.
00:11:48.320I've previously described the pieces of legislation that deal with online regulation as this multi-pronged effort, multi-pronged assault, because you've got what was formerly known as Bill C-10, now C-11.
00:11:59.820We've got our online harms potential legislation, which, as you know, is not actually in the legislation form yet.
00:12:06.300There's a bit of other stuff going on in the periphery as well.
00:12:08.980How would you, in a nutshell, kind of describe what's going on?
00:12:12.560Because you've written on a few various moving parts right now in the government, and it's not all the same bill.
00:12:19.600And so when I think of this internet regulation piece, it's a three-part initiative.
00:12:25.700And I should note that this is led by Canadian heritage, which itself, I think, raises some questions.
00:12:32.120So if you're dealing with online harms, for example, that sounds like an issue that's more suited to public safety and perhaps justice.
00:12:40.880If you're dealing with streaming or innovation-related issues, clearly there's a major role there for innovation, science, and industry.
00:12:49.420So it's not clear to me why the government has decided that all of these issues vest with Canadian heritage.
00:12:54.520It's effectively turned these issues into sovereignty questions, cultural sovereignty questions more than anything.
00:12:59.720But as I say, there are three elements.
00:13:01.660The first is the Online Streaming Act.
00:13:04.340What was Bill C-10, now Bill C-11, which started at least with the premise of trying to target large streaming services like the Netflixes and Disneys of the world,
00:13:12.920but has captured attention because it's quite clear that both C-10 and even now still with C-11, its scope is more expansive than that and may well include user-generated content.
00:13:23.640There's then Bill C-18, which is the Online News Act, which seeks to require some of the large internet platforms to pay media organizations.
00:13:33.980I've raised serious concerns about that because the legislation doesn't just involve payment, say, for reproduction of works.
00:13:42.520If you're copying the work, one would understand why they want to be paid for it.
00:13:46.260But even something as basic as facilitating access to news, the mere linking is seen as a compensable act,
00:13:53.800which I think raises some very serious concerns about how the government envisions the internet.
00:13:58.680And then there's this online harms piece that, as I say, is not yet a bill, was a consultation.
00:14:04.400The government then, I think, took the mistaken and unfortunate approach of saying they weren't going to release the actual submissions that they received,
00:14:12.120instead put forward a what we heard report that I think now that we have seen the actual submissions,
00:14:18.160which I obtained under Access to Information, it's fair to say that that report, while acknowledging that there was real criticism,
00:14:24.900I think, understated the extent to which there was criticism, really from across the spectrum,
00:14:30.500whether that was individuals, civil liberties groups, internet platforms, and even vulnerable groups,
00:14:36.840groups that typically would have been viewed as being very supportive of this kind of legislation, also expressed real concern.
00:14:43.180Well, and that's really interesting because you found these documents through that Access to Information,
00:14:47.700and you got, I guess, hundreds of pages.
00:14:49.580The government originally put out a report saying, here's what people had to say in response to our online harms.
00:14:55.240And they acknowledged that there were some people who weren't crazy about it, but they also said there were some thumbs up, I guess.
00:15:00.780And what you found was, no, there's actually some really wild things that people had said in opposition to this,
00:15:06.020and not just like random anonymous Twitter people sending in their lewd feedback,
00:15:11.540but actually big corporations like Twitter saying some pretty incredible things.
00:15:16.920What did you learn? What did Twitter say?
00:19:25.340Well, we don't know if it will, to be fair, because it was in that consultation.
00:19:28.140And now they're going back to the drawing board, or at least they're reconsidering some of these issues through the panel.
00:19:33.460I guess I would say that there is a need for some bureaucracy to address some of these issues.
00:19:40.380And, you know, I think that there are real concerns, certainly about empowering the CRTC even more when it comes to some of these issues.
00:19:47.460And they're already doing that in bills like the Online News Act and the Online Streaming Act.
00:19:53.620So the idea that we want to empower the CRTC even in this area would be a problem.
00:19:58.020And so they're trying to establish, you know, an additional framework.
00:20:02.300In this case, actually, it would be even paid by the platforms themselves to try to establish some of those governance techniques.
00:20:08.740You know, I actually think that part of the problem that we have here is that the government is dealing largely with symptoms rather than the foundational problems.
00:20:18.520There are clearly foundational problems with many of these companies, and we need to be addressing them.
00:20:24.600And I would point to issues like anti-competitive behavior, abuse in the marketplace, misuse of data, failure to be transparent, and failure to abide by the very policies that these companies put forward when it comes to all sorts of issues, including content moderation.
00:21:11.660And it seems to me that if we started with the foundational questions, more aggressive approaches with respect to competition enforcement,
00:21:19.240getting real data governance and privacy rules, Canada is so far behind in ensuring that we've got up-to-date modernized privacy rules,
00:21:27.920ensuring that we hold these companies accountable, both with respect to transparency and in living up to the very commitments they make.
00:21:35.620That would, I think, deal with a lot of these questions.
00:21:38.160Yet, for some reason, the government is putting aside the obvious kinds of solutions in favor of these other approaches.
00:21:44.220Professor Geist, I got to ask you, you said a phrase earlier in the conversation, how the government envisions the Internet.
00:21:51.160And I think that some people who played a role in the initial creation of the Internet back in the early days would maybe get a little bit of a chill hearing that phrase,
00:22:00.520that idea of the government envisioning the Internet.
00:22:19.160And maybe if we need to change the ways to further empower the RCMP to deal with that stuff and prosecute people, by all means, let's do it.
00:22:26.200Defamation, libel, all that kind of stuff.
00:22:28.020But when we talk about them re-envisioning these roles, is it going to be expansionist?
00:22:34.080And it goes back to the original concern of a lot of people seem to think that saying mean things to people online should make people suffer consequences.
00:22:45.160And we don't all have a mutually agreed upon definition of what those mean things are.
00:22:52.600And, you know, and I do think that there are some that would like to see very aggressive regulation to deal with not just illegal speech, but speech that goes beyond that.
00:23:02.900That does cause some amount of harm and says, you know, with the view that the government ought to play a role.
00:24:02.380And if we try to take steps to ensure that they did a better job of doing that and hold them accountable for failing to do so, we could avoid some of these these other, I think, much more thorny and problematic questions that invariably lead to into questions of whether or not the government is trying to engage in some sort of censorship.
00:24:21.180Right. And I don't doubt there are very real harms to to people being offensive, being rude.
00:24:26.620But I guess the question becomes, you know, I go to a party.
00:24:37.100You're just you're just being a jerk and so forth.
00:24:38.660But at no point are we ever going to have the right to call the cops and say there's a man at a party being mean.
00:24:43.960And I worry that the way we talk about the Internet right now is we're pushing to a situation where let's basically call the digital cops on this mean person.
00:24:54.340Well, I think that there were concerns.
00:24:56.060Actually, it's it's funny you mentioned this idea of proactively calling law enforcement.
00:24:59.680One of the concerns that actually really sparked a great deal of consternation from groups like the National Council of Canadian Muslims and a number of other marginalized and vulnerable groups was that the government was proposing proactive monitoring of systems and then potential notification of law enforcement for violations.
00:25:23.760And the concerns that those organizations had was you might be trying to protect us, but, you know, automated notifications of law enforcement using artificial intelligence based systems that don't have the context is likely to to lead to some serious risks with people getting potential police records or notifications based on something that the AI didn't know didn't notice or didn't didn't fully understand.
00:25:48.740So I think, you know, there certainly have been proposals that have talked about more active engagement in law enforcement.
00:25:56.040And that's that's why I guess part of my message has been I think we need to take a step back from some of those things, better understand the technology and the risks that are associated with it and deal more effectively with some of the foundational issues.
00:26:39.720I certainly think that the international trends is playing a big role in this.
00:26:44.780You know, this is a government that up until fairly recently, or at least several years ago, saw itself as being very supportive of certainly the Internet and Internet platforms.
00:26:56.180They were they, you know, they literally were on the same stage at times of some of these companies.
00:27:01.500They saw Melanie Jolie, the former heritage minister, proposed her policies around, let's say, online streamers and wanted to work with the streamers and thought that the way to ensure more Canadian film and TV production was to actively work with these companies as opposed to regulating them.
00:27:19.960You had Justin Trudeau on the same stage as Google and smart city projects.
00:27:24.040So government at that time really took a pretty positive perspective.
00:27:29.580I think there were a number of events that globally that had an impact in that regard.
00:27:34.040The Christchurch event, certainly in New Zealand, influence from France and their move to become more pro-regulatory.
00:27:42.360And I would say even the experience that that certain members of parliament have received.
00:27:46.420I know when you talk to MPs, you know, at the you know, certainly over a number of years, many of them would cite the abuse that Catherine McKenna faced as minister.
00:27:55.540And say that, you know, this this I think personalized the kind of invective that takes place online and solidified the view that something needed to happen.
00:28:05.920So I don't think it's about preserving their particular perspective online and diminishing the perspective of others.
00:28:14.180I think in their case, they see others taking action.
00:28:17.620I think they have a genuine belief that there are real harms online.
00:28:21.540And I think there's certainly plenty of evidence to support that there are real issues in need of addressing.
00:28:27.860My concern is that the approach that they're taking, I think, gives short shrift at times to freedom of expression and oftentimes will prove ineffective and creates its own set of harms that the government isn't fully accounting for.
00:28:42.980I'm familiar with those stories that Catherine McKenna told of being subject to, I guess, lots of sexist, you know, haranguing and harassment online.
00:28:55.160And I don't think people should be writing those things to other people at the same time.
00:28:59.540So many people face that sort of stuff.
00:29:01.520If you're out in the public eye myself, as an example, I got, you know, many social media followers, as I know you do as well.
00:29:07.800And I take strong positions the past two years during the pandemic, I came to believe that a lot of these lockdown measures were not appropriate.
00:29:14.980And I held those views when maybe the majority of people did not hold them.
00:29:40.180I mean, am I really, have I, leaving Catherine McKenna's side, have I been subjected to online harms in a way that there needs to be some sort of a formal remedy aside from me just shutting down my account or, you know, deciding not to look at it?
00:30:11.940And that's not the comparison I'm making, but there are legal responses to that, are there not?
00:30:15.760Like she, she has the right to call the police.
00:30:17.480There are, but to the extent to which she should, but the extent to which there is a correlation between what takes place online and then the physical threats, one can well understand why there is a view that something needs, needs to be done about it.
00:30:29.460And I'm sorry, with all respect, this, I, you know, I've been, been a strenuous critic of the things the government is doing and, you know, a strong advocate to ensure that freedom of expression is properly safeguarded.
00:30:42.840But that doesn't mean doing nothing at all.
00:30:45.520And so I don't believe that, that you get to say whatever you want, even once it descends to issues of, of legitimate threats that need to be taken seriously.
00:30:53.840There needs to be some mechanism to address those kinds of concerns, particularly when platforms say they will address them.
00:31:02.920And if they fail to do so, seems to me pretty reasonable to say they ought to be held to account.
00:31:07.940Now, the government could be doing that.
00:31:09.820That could be the approach that they take to say, you know what, you've got your policies in place.
00:31:14.140Why aren't you effectively enforcing them?
00:31:17.080They're creating the kind of bureaucracy that we're talking about.
00:31:20.200They're creating slippery sorts of legislative reforms that have the ability to overshoot or the risk of overshooting.
00:31:27.100And so I think that's where some of the concerns lie.
00:31:29.280It's not, at least in my view, it's not with the mere notion that they are seeking to address some of these issues.
00:31:34.960But just to be clear, you're talking about, in the Catherine McKenna example, not the things that we know are outright illegal and that people already have legal recourse to deal with them and call the police about.
00:31:45.920But you're talking about other things that are a step below that, but there still needs to be a government remedy.
00:31:53.180I don't mean the, you know, the acknowledged criminal harassment, but you mean a step below that.
00:31:59.200I don't think we can be willfully blind to the correlation that exists between certain things that take place online and then continue into the offline world.
00:32:08.260What we have learned is that not all those threats and those mean comments are idle.
00:32:56.120Honestly, I'm trying to figure out like and what we mean by threats.
00:32:59.320Well, Anthony, realistically, if we're talking about some anonymous Twitter account, what exactly do you think the person ought to be doing?
00:33:11.140Like, you know, can you give me an example of a threat?
00:33:14.460I don't mean the Catherine McKenna thing because I want to leave her out of this.
00:33:17.780But what's an example of an online threat that isn't currently illegal but should be?
00:33:24.620It's not it's not so much whether this question I don't think is whether or not we need to create new forms of illegal speech.
00:33:30.840The because I think that I think you're right when you say that many of these kinds of threats are already illegal.
00:33:36.940But if we've got rules that don't have effective remedies, then we do need to take.
00:33:41.760So then there is there is, I think, certainly a case to be made that there needs to be some mechanism to try to address some of those issues.
00:33:48.700Is there maybe an information deficit in that I have seen recent examples the past few years of people I know, particularly people in media who have it's taken a while.
00:33:59.680But people who have been persistently harassing them online have faced some sort of legal consequences and they've identified them and then they've got things in the court system or police have charged them.
00:34:11.700And maybe it's just that that because we're still, you know, relatively speaking, new to all of this is just taking a while for the gears to get going.
00:34:19.960And we more need a system where people know their rights online.
00:34:53.880It's not clear if the platform has taken action.
00:34:56.420It's not clear what if they have what action they have taken.
00:34:59.260And so when I'm talking about can we get better transparency and accountability on those issues, which I take to be, I have to tell you, I take to be different from the kind of 24-hour takedown requirements or website blocking or automated reporting to the police.
00:35:14.620That's where I think there's significant overstep in terms of what the government has had to say.
00:35:19.180Or even in C11, where they, on the online streaming side, start moving into this issue of user-generated content and having some potential regulatory powers there.
00:35:29.440Or in C18, in the online news side, where suddenly you're saying that merely facilitating access to news is itself something that then triggers some sort of rights.
00:35:38.720All of these sorts of things are a piece of where I think the government is moving in the wrong direction in trying to deal with something that does need to be dealt with effectively.
00:35:49.760And there are better, more effective ways of dealing with it.
00:35:53.660Before we wrap, I got to ask you this.
00:35:56.240Is Elon Musk's purchase of Twitter going to complicate all of these things or make things better?
00:36:03.160Yeah, I think that's the question everybody's asking right now.
00:36:05.460You know, I think the fairest answer at this moment is that we don't know.
00:36:12.380We don't, you know, there's obviously been any number of Musk tweets where he talks about Twitter.
00:36:16.660It's not totally clear how he will specifically change Twitter.
00:36:21.600What I'll say, though, is that I think the fact that you can have the world's richest person come along and purchase this enormously important communications vehicle,
00:36:31.940or have Mark Zuckerberg run another one of the world's most important communications vehicles.
00:36:37.040And we can literally be talking about how their individual choices can have implications for the expression of billions of people.