Online harms panel looking to adopt U.K’s duty of care model, won’t prioritize freedom of expression: Co-chair

Canada’s online harms panelists are looking at adopting the United Kingdom’s duty of care model because the “ship has sailed” for Canada to start off with a smaller online harms bill, similar to that of Australia, according to the panel’s co-chair. Canada Research Chair in Cybersecurity Law Emily Laidlaw, made the comments Tuesday at an International Institute of Communications conference panel on Online Harms. The concept of "duty of care" in law refers to a fiduciary responsibility held by companies to make decisions that will not harm the public they serve, for example, a duty to keep users safe from harmful activity on online platforms. Laidlaw was joined by Australia’s eSafety Commissioner, Julie Inman Grant, and British Conservative MP Jeremy Wright who shared lessons from their countries in regard to regulating harmful content online. Laidlaw said that even though there are certain elements of online harms which are already illegal, through the criminal or civil code, “the problem is that on the ground, day to day” there is no avenue to resolve those issues when they take place online. Laidlaw is a member of the "expert advisory group" appointed in March by Heritage Minister Pablo Rodriguez to assist the department in drafting the planned legislation. “So we have a huge access-to-justice problem. And a lot of it comes down to just the sheer volume of content online and just the ease of that attack vector, if I can call it that, and the need for speed,” Laidlaw said. She said tech needs to play a key role in the space whether it is removing content or flagging it and she is “on board” with the idea of duty of care. “Really this is about the idea of what risk management measures do platforms need to put in place to deal with the risk of harm of their services,” she said. Laidlaw said that beyond risk management, tech platforms must also take action when something happens. For example, she said, Amazon Inc.’s Twitch allegedly took down the recent livestreamed Buffalo, N.Y., supermarket mass shooting within two minutes, whereas Meta Platforms Inc.’s Facebook allegedly left it up for 10 hours. The latter situation raised questions about what went wrong with its risk management model, she said. Panel moderator and Android Central reporter (and former Wire Report reporter) Shruti Shekar said that the U.K.’s bill, which is undergoing its second reading in the British parliament, received criticism for putting the onus on big tech and “making the enemy in charge. Wright, who was responsible for the bill while serving as Secretary of State for Digital, Culture, Media and Sport, responded that duty of care is all about proactivity on the parts of incumbent platforms. “For me, the logic of a duty of care approach is largely around that requirement that we expect partners to be proactive in identifying harms and then doing what they can to deal with those harms,” he said. He noted that the U.K.’s approach does not set out a very specific number of duties, nor a list of things platforms must do to meet those duties, because a “very prescriptive” rules-based approach would quickly become outdated. “And it doesn't expect that productivity from the platforms that we're all agreed we want to see. The duty of care model is really there to say to the platforms ‘look, you've got a responsibility to keep your users as safe as you reasonably can,’” he said. Wright highlighted the fact that the word "reasonably" was key to that statement. “We're not expecting them to work miracles and we're not saying that every piece of bad content reaching every vulnerable user is automatically a breach of that duty of care. But we are saying that you have to construct systems and processes that will do the best job they possibly can at restricting the amount of bad content that will be getting to vulnerable users.” Wright also noted that Canada’s regulator, or digital safety commissioner, would need the tools to be able to analyze how the system is working, therefore, transparency requirements and algorithmic analysis would need to be imposed on platforms. Grant, who noted that Australia implemented the world's first online safety regulator, said instead of “biting off everything at once” the government decided to start off small with a children’s safety commissioner “because nobody could argue with the fact that children are vulnerable.” “We're not here to be the censors of the internet. We're not proactively monitoring the internet. We don't have tentacles into the lounge rooms of people. So we're not we're not censoring in that respect when responding to complaints,” Grant said. Grant said that if platforms, such as Facebook, do not take down a reported post, her office becomes “the safety net.” If they find the post meets the threshold for serious cyberbullying, harassment or threats, the commissioner informs the platform that they are in violation of the law. Grant said they have seen a 90 per cent compliance rate with the companies they work with.. Wright also argued that expeditious takedown was necessary, especially in cases of child bullying, and that Canada’s future safety commissioner needs to be granted takedown powers. Wright said they eventually set up an image-based abuse portal and, after the 2019 Christchurch mosque shootings in New Zealand, were granted more powers to stop the virality of terrorist events, torture, kidnapping and child rape that is captured by a perpetrator. For example, she said, her office can compel internet service providers to block certain content if an online crisis event is reached. More recently, Wright has implemented an adult cyberbullying scheme. “It really was a great builder to start with children's safety, and kind of expand from there. But I don't think that we're in an environment now where we could similarly limit that. I don't think that there'll be any way that we can propose online safety that did not instill within it things like hate speech, terrorist content. That ship has sailed,” Laidlaw said. Laidlaw also said the recommendations for Canada’s online harms bill will not prioritize freedom of expression over other rights or potentially harmful impacts on marginalized “All constitutional rights are equal. So that means that the right to freedom of expression is equal with the right to equality, for example, the right to privacy, and that there are reasonable constraints on these,” she said. “So to the extent that these can both be accommodated, they are, and when they cannot, then it's balancing.” Laidlaw added that the government has special fiduciary obligations for Indigenous people, and therefore the panel’s recommendations will examine how different rights are impacting marginalized and Indigenous groups while ensuring it does not promote an environment of general monitoring and surveillance. – Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca.

Online harms panel looking to adopt U.K’s duty of care model, won’t prioritize freedom of expression: Co-chair

News | May 17, 2022

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Online harms panel looking to adopt U.K’s duty of care model, won’t prioritize freedom of expression: Co-chair

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