Few stakeholders fully support Heritage proposal for online harms: report

The government needs to rethink its approach to regulating harmful content online, the majority of submissions to a consultation process argue, according to a summary of those findings released Thursday. The report, released by Canadian Heritage following a July to September consultation, summarized hundreds of submissions on the Government's efforts to create a new Digital Safety Commissioner to combat online harms in the five listed categories, and force online platforms to remove illegal content within 24 hours of being flagged. While the comments themselves have not been made public, members of civil society, academics, and industry stakeholders criticized the government's proposal to combat terrorist content, hate speech, non-consensual distribution of intimate images, and content that incites violence and sexually exploits children, according to the report. Only "a small number of submissions from those stakeholders” were mostly supportive of the framework as a whole, according to the report. “Though respondents recognized that this initiative is a priority, many voiced that key elements of the proposal need to be re-examined. Some parties explained that they would require more specificity in order to provide informed feedback and that a lack of definitional detail would lead to uncertainty and unpredictability for stakeholders,” Canadian Heritage wrote in its report, noting that this framework could set a precedent for other countries. Stakeholders' main gripe with the proposal, according to the report, was the definition of online communication service providers which “many stakeholders” argued was too broad. They said the proposal should instead focus on social media networks and video-sharing platforms which arguably pose the greatest risk to Canadians. The initial proposal said the bill would target online communication service providers including Facebook, PornHub, TikTok, and other services that “enable users of the service to communicate with other users of the service, over the internet.” Telecom service providers, private communication services, and fitness and travel apps are all excluded. “Respondents questioned whether services like personal websites, blogs, or message boards would fall within the scope of regulation. Some recommended that the Government introduce criteria to categorize entities, which would then be used to determine whether they fall within the legislative scope,” the report reads. Respondents also expressed concern that smaller providers of online services would experience financial and resource burdens as a consequence of having to meet the obligations laid out in the proposed legislation. “There was strong desire to have smaller platforms be exempt from the framework,” the report stated, adding that respondents recommended that the Government implement platform size thresholds. On the other hand, “a few” respondents felt that all online entities who provide services to end-users should be included within the scope of the legislation, arguing that harmful content can be exploited if there are gaps in the system. Some even extended that recommendation to include “at least in part” private communication and encrypted services. “These respondents advocated that, at minimum, requirements for user notice and transparency reporting should be placed on these services. They asserted that extending the scope of regulated entities in this way would better enable harm reduction and would mitigate the risk of an incentive for companies to create more closed or private platforms as a means of sidestepping obligations,” the report stated. Respondents also asserted that the proposed regime would be inadequate in fulfilling the seriousness of the task of content moderation in the five categories (terrorism, child exploitation, violence, hate speech, and non-consensual distribution of intimate images) outlined. “Some pointed out that a one-size-fits-all approach would unlikely address the nuances of each type of content. Many respondents stated that the five types of content were very different and that each required a specialized approach, or perhaps an entirely separate regulatory regime,” the report stated. At the same time, some respondents recommended that the department add doxing (the non-consensual disclosure of an individual’s private information), disinformation, bullying, harassment, defamation, conspiracy theories and illicit online opioid sales in the scope of the legislative and regulatory framework. While some respondents applauded the government’s proposal for going beyond the criminal code definition of some types of harmful content (ie. including material relating to child sexual exploitation in the definition that might not constitute a criminal offence) other respondents felt it could raise serious issues by violation free speech under the Canadian Charter of Rights and Freedoms. “Many cautioned against opening up the categories of harmful content to speech that, though harmful, would nevertheless be lawful. Concerned stakeholders expressed that requiring the removal of speech that would otherwise be legal would raise risks of undermining access to information, limiting Charter rights, namely the freedom of expression, and restricting the exchange of ideas and viewpoints that are necessary in a democratic society,” the report states. According to the report, respondents called for the Government to reframe and reconsider its approach to what content moderation obligations, if any, would be placed on platforms to reduce the spread of harmful content online, including the 24-hour removal provision and the obligation for platforms to proactively monitor their services for harmful content. Only “a few respondents” supported the obligation on platforms to take all reasonable measures to identify harmful content that is communicated on their platform and to make it inaccessible to Canadians, while “most stakeholders” flagged these obligations as “extremely problematic.” “The proactive monitoring obligation was considered by many as being inconsistent with the right to privacy and likely to amount to pre-publication censorship. They explained that in a regulatory context where content would be prevented from being uploaded, the requirement would operate as a de facto system of prior restraint,” the report reads. Many called for the provision in the proposal legislation to be removed or more narrowly defined. The argument goes that by forcing platforms to monitor their websites (instead of moderating content by reacting to flagged content) the regime would effectively force platforms to censor expression prior to that expression being viewed by others. Multiple respondents considered that to be an infringement on human rights and questioned whether a service provider should be the entity to decide what content is unlawful. In a similar line of argument, the proposed 24-hour requirement to remove content was viewed “nearly all respondents” as being systematically flawed as it could lead to the over-removal of content by platforms seeking to avoid non-compliance and it would provide very little time for a contextual analysis or thoughtful balance between the content and rights of expression. “Some respondents also felt that faced with a plethora of incorrect moderation decisions, users would likely lose trust in online platforms’ content moderation processes,” the report stated. It was also argued that if content was found to be justifiably illegal, a 24-hour removal would nevertheless be flawed as it would prevent law enforcement from identifying and preventing threats to public safety or investigating criminal activity. “By contrast, a few respondents indicated that the 24-hour timeframe would be too long for certain types of content. More specifically, they asserted that illegal sexual content should be automatically removed when flagged,” the report stated. According to the report, stakeholders questioned the independence and oversight of the new regulatory body, what types of content would be captured by the regime, how that content would be defined in relation to existing criminal law and the proposed compliance and enforcement tools, including its blocking power. The Digital Safety Commissioner’s function, as proposed by the government, would be to oversee online content moderation by administering and enforcing obligations; engaging groups disproportionately affected by harmful online content, supporting platforms in reducing harmful content, and creating education and research initiatives. The proposed regulatory body “was broadly supported” provided that it be staffed with the right expertise (ie. with experts in human rights law) with training on implicit bias, cultural humility, and victim-centred and trauma-informed approaches, considering that a regulator of online expression is an unprecedented role for a regulatory body in Canada. Mandatory reporting of content to law enforcement and national security agencies or preservation obligations was also a concern for stakeholders, with only “a select few” in support, after the government proposed to amend the CSIS Act to allow it to quickly seek basic subscriber information to “provide for a more expedient process to ensure timely investigations and greater flexibility than the regime currently provides.” Respondents argued that the proposal would result in the disproportionate reporting of content produced by marginalized groups – which already receives a disproportionate amount of flagging compared to other communities – to law enforcement, some of which may not be illegal. “Coupled with the 24-hour takedown obligation, some argued that the proposal could result in these groups finding that their posts are excessively forwarded by platforms to law enforcement or CSIS for investigation,” the report stated. According to the report, the Government will consider its next steps and will announce further action shortly. Some stakeholders who commented also noted that the consultation process happened at an inopportune time during a Federal Election period and a pandemic, and that the consultation time was too short, arguing it was difficult to put forward meaningful input, according to the report. OpenMedia campaigns director, Matt Hatfield, said in a press release that the government is better off taking its time with the proposal, which the organization called disastrous, rather than putting it on the “fast-track.” “Acknowledging serious problems isn’t the same as adequately addressing them,” Hatfield stated. “They’re promising experts will be convened within weeks to fast track fixing their proposal while getting it right. But it will take a lot of time to work out fixes to everything that was wrong in last year’s proposal. Any proposal that impacts our online freedom of expression and privacy is incredibly sensitive.” – Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca.

Few stakeholders fully support Heritage proposal for online harms: report

News | February 3, 2022

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Few stakeholders fully support Heritage proposal for online harms: report

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