April 3, 2022
Pablo Rodriguez is getting better at this. The Heritage Minister who is trying to shepherd three Internet bills through Parliament in 2022 has filtered out the political noise on two of them and paid attention to important warnings that the public consultation for his proposed Online Harms Bill was going to blow up on him.
On March 30th Rodriguez announced a panel of twelve bone fide experts in Internet law and social policy who will advise Heritage on what to do about the reeking sludge of online speech that social media platforms can’t seem to keep at bay.
One of those experts is Taylor Owen, Director of the Center Media, Technology and Democracy. Owen took the opportunity to tweet that he was pleased that his expert panel was being mandated to “pivot” towards a “systems” approach:
If you are wondering how to interpret Owen’s semaphore, a “systems-based” approach means less emphasis on illegal speech policed by government-established monitoring requirements and more emphasis on getting platforms like Facebook to self-regulate with whatever methods work best under a general legal “duty of care.”
In other words, it means less government regulation and more incentive for Big Tech to develop a better sludge solution so as to avoid liability.
That could be the best policy approach given the gargantuan challenge of combing through millions of posts to find harmful content and the very real possibility that platforms will over-censor in order to do so.
Keeping it real, we should acknowledge that Facebook and other platforms are like private sewage companies being told they must not leak a drop of shit.
On the other hand, they are monetizing shit.
The Heritage Department’s initial consultation paper leaned heavily towards the no-leaks approach by obliging platforms to pre-emptively filter, moderate, and delete posts so harmful they are illegal. And depending on the posts, the stakes are raised by requiring platforms to report the posts and the posters to the authorities.
That kind of regulation has civil libertarians in a lather, though many are prone to absolutist opposition to any regulation of communications.
And where Internet free speech is concerned, expect red-hot politics to follow. Even the most cautious Online Harms legislation will be seized upon by the Conservative Party and some advocacy groups as creeping digital communism. The fundraising opportunities are priceless.
The expert panel is to meet weekly up to 12 times to come up with advice for the Minister on how to design the legislation. It’s encouraging that the Minister will be publishing the panel’s discussion papers and, on a non-attributed basis, the experts’ views.
Where this might end up (or so I am hoping) is the panel advising the Minister to establish hardcore regulation of highly dangerous content —— probably terrorism, child exploitation, revenge porn, Criminal Code hate speech offences, and threats of imminent harm—- which would be regulated as illegal speech with strict enforcement and reporting requirements imposed on the platforms.
Beyond those core concerns lays all manner of harmful but not imminently dangerous content —-think dog-whistling bigotry and racism—— which can be managed in a more ad hoc fashion by the platforms themselves (including banning serial offenders). The platforms will avoid corporate liability so long as their efforts show continuous improvement and meet Canadians’ expectations of corporate responsibility.
By re-booting the consultation process and creating his impressive panel of experts, the Minister should build the necessary political credibility before tabling an inherently controversial piece of legislation.
In addition, the re-boot allows the United Kingdom to forge ahead with their Online Harms legislation, allowing Canada to learn from any mistakes.
That’s policy with brains.