Mark Goldberg


www.mhgoldberg.com





#CTS20

Free from online discrimination

What does it mean for Canadians to have the ability to be free from online discrimination including bias and harassment?

In the mandate letter for Minister of Innovation, Science and Industry Navdeep Bains, he is told to “Work with the Minister of Justice and Attorney General of Canada and the Minister of Canadian Heritage” to deliver that as part of advancing Canada’s Digital Charter. There is a similar section in the mandate letters for the Minister of Justice and Attorney General of Canada, and for the Minister of Canadian Heritage.

Work with the Minister of Justice and Attorney General of Canada and the Minister of Canadian Heritage to advance Canada’s Digital Charter and enhanced powers for the Privacy Commissioner, in order to establish a new set of online rights, including: data portability; the ability to withdraw, remove and erase basic personal data from a platform; the knowledge of how personal data is being used, including with a national advertising registry and the ability to withdraw consent for the sharing or sale of data; the ability to review and challenge the amount of personal data that a company or government has collected; proactive data security requirements; the ability to be informed when personal data is breached with appropriate compensation; and the ability to be free from online discrimination including bias and harassment.

There is a lot packed into that paragraph. For now, let’s look at just the last clause: “the ability to be free from online discrimination including bias and harassment.”

The Criminal Code has a section that deals with Criminal Harassment. Is that what is being considered here? Is it the removal of content subsequent to a judicial finding of harassment? If so, then it is understandable that Canadians should have an ability to be free from online criminal harassment.

The idea of an ability to be free from online bias is more troubling.

What does it mean “to be free from online discrimination including bias”? Simply having a bias isn’t illegal and it should not be. We all have certain biases, frequently expressed through the newspapers we read or the political parties we favour. Commission of a criminal offence motivated by bias is a consideration for sentencing, but do we (or should we) have an “ability to be free from online … bias”?

If the mandate letters’ intent is to protect people from being defamed online, there is already a body of law that affords protections. A defamatory publication remains defamatory whether it is published in print, broadcast, or online. Republishing a defamatory statement, even online republishing, is in essence a new publication, and in most cases, the republisher becomes liable.

Will someone’s right to be free of online bias interfere with my right to express my thoughts, my beliefs, my opinions, despite my accumulated biases? As the Supreme Court of Canada found in 2008 in WIC Radio v Simpson,

“Chilling” false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self‑censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements.

A society that seeks to promote healthy debate should require evidence of a malicious motive before restricting the expression of opinions based on true facts that concern matters of public interest. It would protect spirited — but not mean-spirited — speech.

About a year ago, there was an article that called for the creation of a “Moderation Standards Council” to address how social media platforms deal with and moderate what is termed as “harmful content.” At the time, I expressed concerned about the proposal for such a body:

we need to take a look at whether a democratic country like Canada should be or even could be involved in creating a legislative framework to assert such authority over what might be termed ‘merely’ harmful content, as distinguished from illegal content. Canada’s Charter of Rights and Freedoms “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

2. Everyone has the following fundamental freedoms: …

    1. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

I noticed that the mandate letters are silent on the issue of “hate”. The Criminal Code has defined Hate Propaganda. Is there a reason that “bias” is explicitly included as an example of discrimination while “hate” is left out? It might have been easier to understand this part of the Ministers’ shared mandate had the examples been online speech that can be adjudicated by the Courts.

Aaron Sorkin wrote a line in An American President that I have quoted a number of times on Twitter and on these pages:

You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.

As I wrote last year, we need to set a very high bar in defining what forms of speech are illegal, as contrasted with speech that someone merely feels is biased.

We need to protect spirited — but not mean-spirited — speech as we continue to promote healthy debate on issues.

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