A digital bill of rights

As Canada continues to push forward on its Digital Charter, I noticed an interesting thread looking at Florida’s proposed “digital bill of rights”.

Ben Sperry, of the International Center for Law & Economics, writes:

While it bills itself a “Digital Bill of Rights,” the Florida Senate Bill 262 could actually harm consumers and businesses online by substantially raising the costs of targeted advertising.

For consumers, this would mean less “free” stuff online, as publishers switch from advertising-based to subscription-based models. For businesses, it would mean having less ability to target advertisements to consumers who actually want their products, resulting in less revenue.

Unintended consequences.

In Canada, we have countless examples of overly simplistic analysis of digital issues that fail to consider the logical responses (and counter-responses) of the marketplace to new legislation and regulations.

• Exhibit 1: CRTC regulations that effectively capped the amortization period for devices at 2 years. The Commission and consumer groups were warned that this would lead to higher monthly prices (how could it not?) but pressed ahead anyway. There were other options that could have permitted portability, but preserved the ability to pay for pricy smartphones over a longer period.
• Exhibit 2: CRTC banning Videotron’s Unlimited Music and Bell Mobile TV. These innovative services were competitive differentiators, offering new choices to consumers. Rather than letting the market place respond with either lower prices or competitive differentiators, the CRTC just said “no”.

It is worth noting that Canada has not yet tabled draft legislation that targets online harms and hate, which has been the subject of numerous posts on these pages (such as here, here, here, here, and here).

Last month, Canada’s Privacy Commissioner lost a high profile case against Facebook parent Meta arising from the Cambridge Analytica “incident”. In its review of the Federal Court’s decision, McCarthy’s law firm writes that the dismissal is “a monumental victory for Meta”, providing “important lessons for businesses about Canadian privacy law”. The note says, “The federal Personal Information Protection and Electronic Documents Act (“PIPEDA”) strikes a balance between individual and organizational interests, and should therefore be interpreted in a flexible, pragmatic, and common-sense way. This means that courts must consider not only the individual’s privacy interests, but also the organization’s legitimate interests in collecting, using, and disclosing personal information for commercial purposes.”

As Canada moves forward with examination of its Digital Charter, it will be critical to maintain this balance of interests. Policy would be more robustly crafted if it anticipates how different actors might respond to legislative and regulatory initiatives.

Will parliamentary review of Canada’s digital bill of rights anticipate potential consumer and commercial consequences arising from the legislation?