Full Comment - The Trudeau Liberals’ ‘clear overreach’ to control the internet

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00:01:58.720 Hi, I'm Anthony Fury.

00:02:06.220 Thanks for joining us for the latest episode of Full Comment.

00:02:08.720 Please consider subscribing if you haven't already.

00:02:11.660 Free speech matters, and one of the best places you can exercise your free speech is online, right?

00:02:17.340 Well, for now.

00:02:18.360 But 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

00:02:28.240 and pretty much all of these attempts right now are coming from Prime Minister Justin Trudeau and his Liberal government.

00:02:34.160 Let's take a look at those various pieces of legislation and try to figure out what's exactly going on here.

00:02:39.520 Michael Geist is our guest today.

00:02:40.800 He is Professor of Law at University of Ottawa and the Canada Research Chair in Internet and E-Commerce Law.

00:02:45.440 He 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.

00:02:54.220 Professor Geist, welcome to the program.

00:02:55.560 Thanks for joining us.

00:02:56.840 Oh, it's a pleasure.

00:02:57.520 Thanks so much for having me.

00:02:58.480 Busy time for you right now.

00:03:00.040 Yeah, it certainly has been.

00:03:02.100 There'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,

00:03:14.260 and certainly freedom of expression would be at the very top of the list.

00:03:16.820 Yeah, and it's great to have you on because we can do the in-depth analysis going piece by piece on all of this.

00:03:21.460 But 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?

00:03:32.220 No, to be honest, I wouldn't say that.

00:03:34.240 I 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,

00:03:51.740 I think that it's, in many instances, cast aside some of the safeguards and expression rights.

00:03:58.300 But 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.

00:04:05.300 And can that be an unintended consequence of what's going on right now in terms of the regulatory progression?

00:04:12.300 I 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.

00:04:28.300 There's powers that are being given or contemplated to be given to regulators like the CRTC that clearly have implications for expression.

00:04:37.220 So, you know, I think it's touching on a lot of these issues.

00:04:40.220 Do I think the government is going to get in and stop someone from tweeting a particular piece of content or posting a blog post?

00:04:48.200 It'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.

00:04:57.580 One 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.

00:05:16.300 You 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.

00:05:25.240 But 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.

00:05:45.280 Do we have this murky terrain now where we're delving into things that aren't just, to your point, previously prescribed issues?

00:05:53.240 Yeah, no, that's a good question.

00:05:54.380 And we should note that online harms at this point in time is not a bill yet.

00:05:59.360 There are a couple of other bills that are worth talking about.

00:06:02.540 That's one that, you know, the government, I think, intended to bring forward as a piece of legislation.

00:06:07.640 They 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.

00:06:19.960 You know, in that consultation, they did limit its scope to what they characterized as illegal harms.

00:06:27.580 But, 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.

00:06:45.340 Yeah, you mentioned Stephen Gaubeau.

00:06:46.680 And back when he was heritage minister, he is now environment minister.

00:06:49.560 He 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.

00:07:00.480 There wasn't a lot of pickup on this.

00:07:02.320 My colleague, Lauren Gunter, wrote a column about this in the Post Media Papers.

00:07:05.200 You also posted about this, though, on your blog, michaelgeist.ca, back last May, concerns about the way Stephen Gaubeau was talking about that.

00:07:12.040 So, again, I wonder, you know, how did these things factor into what is the mindset that the government's coming at this legislation from?

00:07:23.000 Yeah, no, that's a good question.

00:07:24.200 And 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.

00:07:46.720 I must admit that I think that he often struck the balance wrong.

00:07:50.740 I think these bills often strike that balance wrong, and I think that it makes them vulnerable to constitutional challenge down the road.

00:07:59.920 But, you know, but I will say that, you know, I think he himself, it seemed like, sometimes struggled with the scope of his legislation.

00:08:08.900 So 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.

00:08:18.660 By the end, they retreated a bit, focusing specifically on illegal harms.

00:08:23.920 One 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.

00:08:34.780 But, you know, it's kind of-

00:08:37.660 It 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?

00:08:51.240 When 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.

00:08:59.580 In 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.

00:09:15.020 It was this consultation instead, there was a retreat back specifically to the illegal harms.

00:09:20.520 I 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.

00:09:25.280 I 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.

00:09:48.420 And, you know, it's tough to justify.

00:09:52.340 They 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.

00:10:00.980 And I feel like it's definitely something that has inertia for them.

00:10:04.600 I think it's clearly not just a side piece.

00:10:06.940 They're clearly motivating passions here.

00:10:09.540 Yeah, I would say that, you know, I have real concerns about the legislation that they brought forward.

00:10:14.500 I 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.

00:10:24.760 You 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.

00:10:34.620 We've tried to deal with this issue and leave the real complications down the road for someone else, in a sense, to deal with.

00:10:43.100 And 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.

00:10:54.220 Dealing 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.

00:11:10.700 And in a sense, saying, well, someone else will have to figure that out.

00:11:14.420 And 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.

00:11:27.000 We tried to put forward a framework.

00:11:28.740 It'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.

00:11:38.100 And I think there are real questions about some of the bills that have been put forward.

00:11:41.620 Professor Geist, one of the things that I find challenging about just having these discussions is that there are many moving parts.

00:11:48.320 I'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.

00:11:59.820 We've got our online harms potential legislation, which, as you know, is not actually in the legislation form yet.

00:12:06.300 There's a bit of other stuff going on in the periphery as well.

00:12:08.980 How would you, in a nutshell, kind of describe what's going on?

00:12:12.560 Because you've written on a few various moving parts right now in the government, and it's not all the same bill.

00:12:18.840 No, it's not.

00:12:19.600 And so when I think of this internet regulation piece, it's a three-part initiative.

00:12:25.700 And I should note that this is led by Canadian heritage, which itself, I think, raises some questions.

00:12:32.120 So if you're dealing with online harms, for example, that sounds like an issue that's more suited to public safety and perhaps justice.

00:12:40.880 If you're dealing with streaming or innovation-related issues, clearly there's a major role there for innovation, science, and industry.

00:12:49.420 So it's not clear to me why the government has decided that all of these issues vest with Canadian heritage.

00:12:54.520 It's effectively turned these issues into sovereignty questions, cultural sovereignty questions more than anything.

00:12:59.720 But as I say, there are three elements.

00:13:01.660 The first is the Online Streaming Act.

00:13:04.340 What 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,

00:13:12.920 but 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.

00:13:23.640 There'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.

00:13:33.980 I've raised serious concerns about that because the legislation doesn't just involve payment, say, for reproduction of works.

00:13:42.520 If you're copying the work, one would understand why they want to be paid for it.

00:13:46.260 But even something as basic as facilitating access to news, the mere linking is seen as a compensable act,

00:13:53.800 which I think raises some very serious concerns about how the government envisions the internet.

00:13:58.680 And then there's this online harms piece that, as I say, is not yet a bill, was a consultation.

00:14:04.400 The government then, I think, took the mistaken and unfortunate approach of saying they weren't going to release the actual submissions that they received,

00:14:12.120 instead put forward a what we heard report that I think now that we have seen the actual submissions,

00:14:18.160 which I obtained under Access to Information, it's fair to say that that report, while acknowledging that there was real criticism,

00:14:24.900 I think, understated the extent to which there was criticism, really from across the spectrum,

00:14:30.500 whether that was individuals, civil liberties groups, internet platforms, and even vulnerable groups,

00:14:36.840 groups that typically would have been viewed as being very supportive of this kind of legislation, also expressed real concern.

00:14:43.180 Well, and that's really interesting because you found these documents through that Access to Information,

00:14:47.700 and you got, I guess, hundreds of pages.

00:14:49.580 The government originally put out a report saying, here's what people had to say in response to our online harms.

00:14:55.240 And they acknowledged that there were some people who weren't crazy about it, but they also said there were some thumbs up, I guess.

00:15:00.780 And what you found was, no, there's actually some really wild things that people had said in opposition to this,

00:15:06.020 and not just like random anonymous Twitter people sending in their lewd feedback,

00:15:11.540 but actually big corporations like Twitter saying some pretty incredible things.

00:15:16.920 What did you learn? What did Twitter say?

00:15:18.520 Yeah, no, that's right.

00:15:19.920 And so, listen, the What We Heard report acknowledged there was criticism.

00:15:24.200 The government said there was criticism, and in fact, they have now created another panel to take a look at some of these issues,

00:15:31.380 although my understanding is that they hadn't even provided the submissions to the panel itself,

00:15:35.620 which I think is a bit surprising.

00:15:37.820 But you're right.

00:15:38.540 There were criticisms from a lot of groups, including the platforms.

00:15:41.840 And I think one of the things that comes out when you read the actual submissions as opposed to the more sanitized What We Heard report

00:15:49.400 is that it both makes a big difference to actually get the real words, the actual words that were used as opposed to paraphrasing.

00:15:56.040 And it also matters to know who said what.

00:15:58.960 And so the government's report didn't disclose any of that.

00:16:01.820 It was just, you know, someone said this or someone said that or some groups expressed this kind of concern.

00:16:06.640 But without knowing, with some level of attribution, what those positions were and who was taking these different positions,

00:16:13.660 it really kind of dulls the effect of what those submissions were like.

00:16:17.440 And so you asked specifically about Twitter, and it certainly provided one of the most forceful submissions.

00:16:23.640 Some of the stuff that they said didn't directly make its way into that report, or at least certainly the actual language didn't.

00:16:29.900 And there are really two elements, actually three elements that I think are worth focusing on.

00:16:34.040 First, they expressed concern that the plans that the government had put forward, and I'll quote,

00:16:39.100 sacrifices freedom of expression to the creation of a government-run system of surveillance of anyone who uses Twitter,

00:16:46.080 even the most basic procedural fairness requirements you might expect from a government-run system,

00:16:51.360 such as notice or warning are absent from this proposal.

00:16:54.220 So real concerns about requirements for proactive monitoring, for immediate takedowns within 24 hours,

00:17:02.040 and the implications that those would have.

00:17:04.660 They also looked at the government's proposals around website blocking,

00:17:08.200 and really described those in very harsh terms, said that the proposal by the government of Canada

00:17:12.940 to allow the Digital Safety Commissioner to block websites is drastic.

00:17:17.420 People around the world have been blocked from accessing Twitter and other services

00:17:20.860 in a similar manner as the one proposed by Canada by multiple authoritarian governments,

00:17:26.320 and they cite China, North Korea, and Iran, for example, under the false guise of online safety,

00:17:33.040 impeding people's rights of access to information online.

00:17:35.900 And so real concern...

00:17:37.080 That's crazy.

00:17:37.960 I mean, that is Twitter saying, you know, China's doing all this crazy internet police state stuff,

00:17:42.800 and we are hearing echoes of that and what you guys are talking about doing.

00:17:46.260 I mean, that's a wild comparison and accusation to make.

00:17:49.200 Is it a fair one?

00:17:50.100 Well, I think there are real concerns about website blocking, and there are concerns certainly I've been expressing for some time.

00:17:55.740 We've seen it arise in the copyright context, and now under this proposal saw it potentially arise in the online harms proposal.

00:18:02.520 And I think the answer is anytime you've got a government saying,

00:18:06.060 we are going to empower someone to order all internet providers.

00:18:09.820 So recognize it's not the government that can actually go in and block the sites.

00:18:12.860 They now then need to say, we've got the power to order all of the various internet service providers,

00:18:18.160 telecom providers, that they've got to institute blocking technologies to ensure that they can block certain websites.

00:18:24.580 And so when you start thinking about creating effectively that firewall,

00:18:27.980 even the requirement to institute that kind of technical capability in all internet providers has huge implications.

00:18:35.480 We'll be back with more full comment in just a moment.

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00:18:54.520 This phrase, digital safety commissioner, that they're talking about in these reports,

00:18:58.600 I think the phrase Orwellian is overused these days, but I got to use it this time.

00:19:02.520 I mean, digital safety commissioner.

00:19:04.220 I don't like the idea that there's an individual who's going to have this task of looking over Canadians and their internet activity

00:19:10.360 and deciding that is not safe and going to ring up, whether it's the cops or to your point, Rogers or what have you,

00:19:18.280 and say, we got to deal with this.

00:19:20.160 We got to deal with this person.

00:19:21.980 They are not behaving safely.

00:19:23.320 How is this role going to unfold?

00:19:25.340 Well, we don't know if it will, to be fair, because it was in that consultation.

00:19:28.140 And now they're going back to the drawing board, or at least they're reconsidering some of these issues through the panel.

00:19:33.460 I guess I would say that there is a need for some bureaucracy to address some of these issues.

00:19:40.380 And, you know, I think that there are real concerns, certainly about empowering the CRTC even more when it comes to some of these issues.

00:19:47.460 And they're already doing that in bills like the Online News Act and the Online Streaming Act.

00:19:53.620 So the idea that we want to empower the CRTC even in this area would be a problem.

00:19:58.020 And so they're trying to establish, you know, an additional framework.

00:20:02.300 In this case, actually, it would be even paid by the platforms themselves to try to establish some of those governance techniques.

00:20:08.740 You 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.

00:20:18.520 There are clearly foundational problems with many of these companies, and we need to be addressing them.

00:20:24.600 And 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.

00:20:42.040 Those are the foundational problems.

00:20:44.060 And when you start looking at the symptoms, what comes out of that, that's where you start getting into issues like harms and the like.

00:20:51.720 The problem we've got with this government's approach is that they're starting with the symptoms.

00:20:56.540 They're starting with the hardest part, hardest issue to try to solve when you're trying to get into this issue.

00:21:03.080 What, you know, what is harmful or what is illegal?

00:21:06.420 Who's going to be responsible for determining that?

00:21:08.560 How are we going to deal with it?

00:21:09.880 These are incredibly thorny issues.

00:21:11.660 And it seems to me that if we started with the foundational questions, more aggressive approaches with respect to competition enforcement,

00:21:19.240 getting real data governance and privacy rules, Canada is so far behind in ensuring that we've got up-to-date modernized privacy rules,

00:21:27.920 ensuring that we hold these companies accountable, both with respect to transparency and in living up to the very commitments they make.

00:21:35.620 That would, I think, deal with a lot of these questions.

00:21:38.160 Yet, for some reason, the government is putting aside the obvious kinds of solutions in favor of these other approaches.

00:21:44.220 Professor Geist, I got to ask you, you said a phrase earlier in the conversation, how the government envisions the Internet.

00:21:51.160 And 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,

00:22:00.520 that idea of the government envisioning the Internet.

00:22:02.720 They'd be like, well, we don't care.

00:22:04.260 It's not the government's place to envision the Internet.

00:22:06.240 This is supposed to be an open source free domain for everyone.

00:22:09.300 And you talked about, you know, what's legal, what's not legal.

00:22:12.100 But as we discussed, I mean, there's already a framework around that.

00:22:14.720 I mean, we're not talking about, you know, people posting child pornography.

00:22:18.140 That is illegal.

00:22:19.160 And 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.

00:22:26.200 Defamation, libel, all that kind of stuff.

00:22:28.020 But when we talk about them re-envisioning these roles, is it going to be expansionist?

00:22:34.080 And 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.

00:22:45.160 And we don't all have a mutually agreed upon definition of what those mean things are.

00:22:49.520 Yeah, that's true.

00:22:51.680 We don't.

00:22:52.600 And, 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.

00:23:02.900 That does cause some amount of harm and says, you know, with the view that the government ought to play a role.

00:23:09.440 Again, I'd come back.

00:23:10.380 I feel offended.

00:23:11.200 I feel bullied.

00:23:12.120 I feel intimidated by your tweet or your Facebook post.

00:23:15.040 OK, well, you know, sorry.

00:23:17.480 It happens.

00:23:18.040 Well, to be fair, those are those can be very real and those can have real world impacts.

00:23:24.760 I personally would not simply dismiss it out of hand and saying, well, sorry, that's just life.

00:23:30.300 I think it does have implications for people's expression and their own ability to participate and express themselves.

00:23:37.460 And those kinds of things can have real world impacts.

00:23:41.080 So I'm sure.

00:23:41.600 But can you dismiss it?

00:23:42.880 So I would be I think we need to be clear.

00:23:44.800 There is a role to try to deal with these issues.

00:23:47.400 And in fact, the platforms oftentimes have policies in place where they say they will deal with some of those harms.

00:23:55.000 Oftentimes it's the failure to deal transparency and transparently and consistently with those harms.

00:24:01.520 That is the problem.

00:24:02.380 And 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.

00:24:21.180 Right. And I don't doubt there are very real harms to to people being offensive, being rude.

00:24:26.620 But I guess the question becomes, you know, I go to a party.

00:24:30.160 I'm polite.

00:24:30.880 I'm well mannered.

00:24:31.700 Another person not polite. 1.00

00:24:33.140 This guy's being a jerk at a party. 1.00

00:24:34.620 We may not like it. 1.00

00:24:35.620 Come on, buddy, like leave the party. 1.00

00:24:37.100 You're just you're just being a jerk and so forth. 0.99

00:24:38.660 But 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. 0.99

00:24:43.960 And 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.

00:24:54.340 Well, I think that there were concerns.

00:24:56.060 Actually, it's it's funny you mentioned this idea of proactively calling law enforcement.

00:24:59.680 One 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.

00:25:23.760 And 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.

00:25:48.740 So I think, you know, there certainly have been proposals that have talked about more active engagement in law enforcement.

00:25:56.040 And 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.

00:26:08.540 It's not a call not to regulate.

00:26:10.500 It's a call to ensure that we've got both smarter regulation and balanced regulation that effectively accounts for freedom of expression.

00:26:17.620 And I think so far what we've seen from the government is that it's failed to do that.

00:26:22.940 To what degree is the liberal government's attempts to change the regulatory framework around online realms specific to them?

00:26:30.740 And to what degree is this them being a product of their times or them following international trends?

00:26:37.460 Yeah, it's an interesting question.

00:26:39.720 I certainly think that the international trends is playing a big role in this.

00:26:44.780 You 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.

00:26:56.180 They were they, you know, they literally were on the same stage at times of some of these companies.

00:27:01.500 They 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.

00:27:19.960 You had Justin Trudeau on the same stage as Google and smart city projects.

00:27:24.040 So government at that time really took a pretty positive perspective.

00:27:28.100 It's pretty clear that's changed.

00:27:29.580 I think there were a number of events that globally that had an impact in that regard.

00:27:34.040 The Christchurch event, certainly in New Zealand, influence from France and their move to become more pro-regulatory.

00:27:42.360 And I would say even the experience that that certain members of parliament have received.

00:27:46.420 I 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.

00:27:55.540 And 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.

00:28:05.920 So I don't think it's about preserving their particular perspective online and diminishing the perspective of others.

00:28:14.180 I think in their case, they see others taking action.

00:28:17.620 I think they have a genuine belief that there are real harms online.

00:28:21.540 And I think there's certainly plenty of evidence to support that there are real issues in need of addressing.

00:28:27.860 My 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.

00:28:42.980 I'm familiar with those stories that Catherine McKenna told of being subject to, I guess, lots of sexist, you know, haranguing and harassment online. 0.99

00:28:53.640 And that's pretty deplorable conduct.

00:28:55.160 And I don't think people should be writing those things to other people at the same time.

00:28:59.540 So many people face that sort of stuff.

00:29:01.520 If 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.

00:29:07.800 And 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.

00:29:14.980 And I held those views when maybe the majority of people did not hold them.

00:29:18.120 So I was subjected to a lot of stuff.

00:29:21.360 And I think, you know, people, they're not going to say these things to your face.

00:29:24.720 They're not even going to write them in long emails, on tweets.

00:29:26.940 Anybody can put a rude thing.

00:29:28.520 So, I mean, my social media for two years has been just like invective, poured at me nonstop.

00:29:32.460 I also kind of understand what's going on in terms of these are just people, you know, mouthing off into the void.

00:29:38.320 I know I've put myself out there.

00:29:40.180 I 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?

00:29:56.120 Well, let's be clear.

00:29:57.300 There's, you know, and I face some of those things online as well.

00:30:00.440 In the case of McKenna, she had actual real, real space threats taking place at her, at her office.

00:30:07.380 I'm not sure if people are showing up to your home or to your place of office.

00:30:10.860 She did.

00:30:11.940 And that's not the comparison I'm making, but there are legal responses to that, are there not?

00:30:15.760 Like she, she has the right to call the police.

00:30:17.480 There 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.

00:30:29.460 And 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.

00:30:42.840 But that doesn't mean doing nothing at all.

00:30:45.520 And 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.

00:30:53.840 There needs to be some mechanism to address those kinds of concerns, particularly when platforms say they will address them.

00:31:02.920 And if they fail to do so, seems to me pretty reasonable to say they ought to be held to account.

00:31:07.940 Now, the government could be doing that.

00:31:09.820 That could be the approach that they take to say, you know what, you've got your policies in place.

00:31:14.140 Why aren't you effectively enforcing them?

00:31:16.300 And yet they're not.

00:31:17.080 They're creating the kind of bureaucracy that we're talking about.

00:31:20.200 They're creating slippery sorts of legislative reforms that have the ability to overshoot or the risk of overshooting.

00:31:27.100 And so I think that's where some of the concerns lie.

00:31:29.280 It's not, at least in my view, it's not with the mere notion that they are seeking to address some of these issues.

00:31:34.960 But 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.

00:31:45.920 But you're talking about other things that are a step below that, but there still needs to be a government remedy.

00:31:52.240 I don't mean the threats.

00:31:53.180 I don't mean the, you know, the acknowledged criminal harassment, but you mean a step below that.

00:31:59.200 I 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.

00:32:08.260 What we have learned is that not all those threats and those mean comments are idle.

00:32:13.780 And so there is a need to address.

00:32:15.960 But what do you mean threats?

00:32:16.820 Do you mean, like, what do you mean by threats?

00:32:20.320 I think if you take a look at the kind of feed, what her feeds look like at the time.

00:32:26.240 And I don't know the specific example, so I'm not.

00:32:29.760 Listen, it's quite clear that there are threats that are made to people online all the time.

00:32:35.300 And, you know, and the idea that you're entitled to make those threats online because it's online, I'm not sure that that's right either.

00:32:41.600 I do think that there is a role to play.

00:32:43.300 No, but don't you already have legal recourse?

00:32:45.440 If someone threatens you online, you're not entitled to.

00:32:48.920 Is that not the case right now?

00:32:50.300 I never thought I'd be the person to be defending some of this regulation stuff.

00:32:55.300 I just don't know.

00:32:56.120 Honestly, I'm trying to figure out like and what we mean by threats.

00:32:59.320 Well, Anthony, realistically, if we're talking about some anonymous Twitter account, what exactly do you think the person ought to be doing?

00:33:08.680 But what do we mean by the threat?

00:33:11.140 Like, you know, can you give me an example of a threat?

00:33:14.460 I don't mean the Catherine McKenna thing because I want to leave her out of this.

00:33:17.780 But what's an example of an online threat that isn't currently illegal but should be?

00:33:24.620 It'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.

00:33:30.840 The because I think that I think you're right when you say that many of these kinds of threats are already illegal.

00:33:36.940 But if we've got rules that don't have effective remedies, then we do need to take.

00:33:41.760 So 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.

00:33:48.700 Is 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.

00:33:59.680 But 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.

00:34:11.700 And 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.

00:34:19.960 And we more need a system where people know their rights online.

00:34:24.340 No, I think it's more than that.

00:34:26.120 I think that we see certain kinds of hate online, let's say anti-Semitic hate, for example, online.

00:34:33.080 I see it happening quite a bit.

00:34:35.120 And we know that there are groups that try to identify this and they are encouraged by the platforms to report it.

00:34:42.040 The problem that arises and it's clear that in some instances the speech will cross the line and be unlawful in Canada.

00:34:49.460 Yet it goes into a bit of a void.

00:34:52.220 It's not always clear what happens.

00:34:53.880 It's not clear if the platform has taken action.

00:34:56.420 It's not clear what if they have what action they have taken.

00:34:59.260 And 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.

00:35:14.620 That's where I think there's significant overstep in terms of what the government has had to say.

00:35:19.180 Or 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.

00:35:29.440 Or 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.

00:35:38.720 All 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.

00:35:49.760 And there are better, more effective ways of dealing with it.

00:35:53.660 Before we wrap, I got to ask you this.

00:35:56.240 Is Elon Musk's purchase of Twitter going to complicate all of these things or make things better?

00:36:03.160 Yeah, I think that's the question everybody's asking right now.

00:36:05.460 You know, I think the fairest answer at this moment is that we don't know.

00:36:12.380 We don't, you know, there's obviously been any number of Musk tweets where he talks about Twitter.

00:36:16.660 It's not totally clear how he will specifically change Twitter.

00:36:21.600 What 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,

00:36:31.940 or have Mark Zuckerberg run another one of the world's most important communications vehicles.

00:36:37.040 And we can literally be talking about how their individual choices can have implications for the expression of billions of people.

00:36:46.200 That's a problem.

00:36:47.500 You know, I don't think it ultimately should be up to Elon Musk or Mark Zuckerberg,

00:36:52.080 whether you think they're bad or benevolent, to be making these calls on their own.

00:36:57.620 Are we in the free marketplace of ideas where I understand people who aren't crazy about Elon Musk and the things he've said,

00:37:05.620 said, bye-bye Twitter, I'm going to another platform,

00:37:08.640 and I'm sure there's a hundred different people out there right now who are currently building new platforms

00:37:12.820 that they hope will be building a better mousetrap.

00:37:15.040 I mean, people don't use MySpace and Napster anymore or, you know, whatever previous incarnations were.

00:37:20.220 Is this just a natural progression?

00:37:22.140 Is Twitter here to stay?

00:37:23.140 Or are we going to see another paradigm shift move into the next generation of social media?

00:37:28.900 Listen, I'm an active Twitter user.

00:37:30.520 I think that it's economically has struggled at times.

00:37:34.420 And I think it has also struggled to adapt over time as well,

00:37:38.480 even just in terms of some of the kind of services that it provides,

00:37:42.640 the way it envisions itself, the level of transparency on certain issues.

00:37:46.240 There's a lot of improvements that could be made, and whether that's Elon Musk or anyone else,

00:37:51.280 I think that we could see certainly a better service.

00:37:55.720 Are there people who object to Elon Musk and will decide to go elsewhere?

00:37:59.500 I'm sure there are.

00:38:01.600 But, you know, when you're a large enough platform where hundreds of millions of people are actively using you,

00:38:07.700 in Twitter's case, or billions in the case of the Facebooks of the world,

00:38:11.300 it's pretty hard to unseat them, and the relevance of those platforms is enormous,

00:38:17.760 even if you choose to stay away.

00:38:21.500 Professor Geist, when it comes to this legislation that's on the table right now,

00:38:26.860 and the different attempts and online harms which may become legislation,

00:38:30.400 I know you acknowledge that there were some improvements to Bill C-10, transferring into Bill C-11.

00:38:35.720 And you're a critic of a lot of the things that are going on sort of between the weeds in this legislation,

00:38:40.500 but are you confident that things are going to be worked out in committee,

00:38:43.940 and that if people keep the pressure on, we're going to move forward productively?

00:38:48.140 Or are you nervous about the future of online regulation?

00:38:51.280 No, I'm really nervous.

00:38:52.540 I'm not at all confident to be perfectly candid.

00:38:56.660 I don't think that C-11, frankly, did address many of the core concerns around C-10.

00:39:02.340 There was an attempt to put back the provision that had sparked much of the initial discussion

00:39:08.280 around the potential inclusion of user-generated content,

00:39:12.040 but they've now put in a new exception to the exception, which I think reopens that door.

00:39:17.320 And so I think those concerns remain.

00:39:19.460 Frankly, the overbroad application of that legislation, which was a concern in C-10,

00:39:24.060 it remains a concern in C-11.

00:39:25.540 When you take the position that all audio-visual content is a program

00:39:30.060 and that it is potentially subject to some amount of regulation by the CRTC,

00:39:35.920 even if the individuals themselves are not subject to regulation,

00:39:38.900 their content might be as a program, I think that's clear overreach.

00:39:43.180 When I look at C-18, the Online News Act,

00:39:46.100 and I know it's obviously well-supported by some of the larger media organizations in this country,

00:39:50.840 but I think once you go beyond saying compensation for reproduction,

00:39:55.540 I think Canadians get compensation for links or facilitating access to news 0.56

00:40:00.300 in a structure that, frankly, opens the door to forum shopping,

00:40:04.800 where low-value news services decide to set up shop with a couple of reporters in Canada

00:40:09.480 because suddenly now they can get on that same gravy train.

00:40:13.180 I don't think that addresses the misinformation issues,

00:40:15.340 and I think it also creates some real harms as well.

00:40:17.820 And so, no, I can't say that I'm confident the government hasn't provided,

00:40:23.040 I think, enough indications so far to suggest that they are open to those kinds of changes.

00:40:28.320 If they, you know, had we seen more of an opening to that,

00:40:31.720 or had we seen the real changes that they've suggested are there but simply aren't,

00:40:36.020 let's say, in Bill C-11, I think one could look at that,

00:40:39.340 look at the hearing process and feel good about coming out with a better bill.

00:40:42.720 But at this stage, you know, both the government as well as at least some of the opposition parties

00:40:48.340 may well mean that, you know, that these bills pass,

00:40:52.260 and I'm not sure what kind of amendments we're going to see.

00:40:55.680 Lots to remain vigilant about, and I know you're doing just that.

00:40:58.400 We can find your updates on these issues at your website, michaelgeist.ca.

00:41:02.120 Professor Geist, thanks very much for your time today.

00:41:04.060 Oh, my pleasure. Thanks for having me.

00:41:05.720 Full Comment is a post-media podcast.

00:41:07.460 I'm Anthony Fury.

00:41:09.140 This episode was produced by Andre Proulx, with theme music by Bryce Hall.

00:41:13.140 Kevin Libin is the executive producer.

00:41:15.620 You can subscribe to Full Comment on Apple Podcasts, Google, Spotify, and Amazon Music.

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00:41:27.240 Thanks for listening.

Full Comment - May 02, 2022

The Trudeau Liberals’ ‘clear overreach’ to control the internet

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