The Canadian government has no interest in listening to you over the online harms proposal. The mandate letter is the latest sign of that.
When the Canadian government launched the consultation process over the online harms proposal, they had no intention of taking any feedback. Everyone knew that when the consultation process was launched and it is still obvious today. Ultimately, the consultation process was nothing more than a box ticking exercise in the end. If there was somehow any doubts that this is an obvious fact about the consultation, the mandate letter puts yet another nail in that coffin of wishful thinking.
Yesterday, we reported on the recently released mandate letter, noting that the Prime Minister is still keen on implementing the failed link tax policy. Of course, as we noted, his anti-Internet agenda extends far beyond the link tax. Making another mention is the online harms proposal. From the mandate letter:
To ensure Canada’s laws reflect our evolving digital world, you will work to introduce legislation to reform the Broadcasting Act, ask web giants to pay their fair share and combat serious forms of harmful online content.
To realize these objectives, I ask that you achieve results for Canadians by delivering the following commitments.
Continue efforts with the Minister of Justice and Attorney General of Canada to develop and introduce legislation as soon as possible to combat serious forms of harmful online content to protect Canadians and hold social media platforms and other online services accountable for the content they host. This legislation should be reflective of the feedback received during the recent consultations.
Probably the more subtle, yet serious implication in these comments is the fact that Trudeau is urging his ministers to implement liability for online platforms for the actions of their users. In the US, that is actually a violation of Section 230. In Canada, it’s basically a giant middle finger to network neutrality as a whole. What’s more is that this is a shot across the bow of those trying to innovate online. If you are going to be liable for the actions of your users, it basically means that there is no legal method to create a large platform in Canada. It’s effectively impossible. As such, the message from the Prime Minister is that if you want to innovate and start a business, don’t do it on our soil.
With Canada soon going to be closed for business, it also adds another nail in the consultation process. As you know, the consultation process began somewhere around early August. I, of course, did the responsible thing and submitted my own response, saying that this is a terrible idea and that it should be scrapped. Of course, one thing I noted at the time was the fact that the way the consultation was presented sent signals that this was not a serious attempt to solicit feedback. Instead, it was basically a consultation by notice. The government put out paperwork detailing what they had already intended on doing. The messaging was that it was up to the public to agree with everything that they proposed.
Obviously, that didn’t happen. Instead, it was noted many times over and over again throughout the submissions that the government had effectively made up its mind and did not ask any open ended questions. As a result of the governments actions, submitting responses to the consultation felt more like an act of protest rather than an honest two way communication between the public and the government. So, ultimately, almost no one believed this was an honest consultation process right from the start. The first nail in the coffin was present right on launch.
A second nail in the coffin came in the form of the Canadian election. Back in August, the consultation was scheduled to carry on right through the election. If the government was serious about soliciting feedback, then the government would have cancelled the consultation process and restarted it after the election was over. That ultimately didn’t happen and the move to keep the consultation process going was seen by many as an effort to suppress feedback in the process. It makes sense because the government was seeing the consultation go in a direction it didn’t want it to go. So, the only logical move was to keep the process going so as to get as few submissions as possible.
A third nail in the consultation process coffin came during the election process. When the Liberal party released their party platform, it was widely noted (including from us) that the online harms proposal was part of it. Keep in mind that this platform was released while the consultation process was ongoing. This was seen by many as the government saying on the one hand that they want to hear from the public, yet, on the other hand, saying to the electorate that their minds are already made up. At this stage, you should already be entirely convinced that the consultation was conducted in bad faith simply because the evidence is overwhelming.
A fourth nail in the coffin came in the form of the Speech from the Throne after the election was over. During that speech, the government said that they are moving ahead with the online harms proposal. Not only is this a slap in the face to those that participated in the consultation process, but also sent a message that the government was moving ahead with their agenda in full defiance of what the public told the government to boot.
Now, we are presented with a fifth nail in the consultation process coffin. The mandate letter shows that the Prime Minister is actively ordering his ministers to move forward with the online harms proposal as-is. This despite the many people and organizations explaining why the proposal is flawed and needs to be scrapped altogether. With the public not playing ball with their grand schemes, the Liberal party has ultimately opted to go it alone and move forward anyway regardless of the evidence saying that they shouldn’t. At this point, almost no one is going to believe the lip service towards the consultation process at the end of that last paragraph in the excerpt.
What’s more in all of this is the fact that the general war on the open Internet comes straight from the Prime Minister’s Office. This is significant in that it basically kills off any hope that anyone coming into the role of the Innovation Minister and Heritage Minister will be burdened with the fact that they will be forced to the role of just following orders. There is no sense of impartiality in the role and, as such, no hope that anyone will look at the situation and say, “Hey, wait a minute. It looks like what we are doing might be a mistake.” While this is not the first time we’ve shown that these marching orders comes from the top, it’s nice to have more evidence to add to the pile.
At the end of the day, this is bad news for anyone who wants to use the Internet in any way. For users, it’s bad news because the government envisions a massive regulatory super structure to determine what speech is and is not allowed. What is and is not allowed? That can change at any time at the discretion of the regulatory super structure. For those who want to start a small business, these regulations will put such an onerous burden on them, it will make it impossible to stay alive for any length of time. So, if you want to start a business in Canada, the Internet is now off limits. For innovators, if they want to try a bold new web concept, the only logical first move is to find a way to originate somewhere outside of Canada. The regulations will basically destroy the idea before it even takes off.
The spinoff effects are that this is bad news for society. While a large portion of the rest of the world are free to engage each other in conversation, Canadians will have to wonder if their speech is going to get them in trouble with the speech police. It’s astonishing that “speech police” is no longer a complete fabricated exaggeration anymore. As a result, any good causes buttressed by the Internet will effectively get hamstrung regardless of cause. It’s also bad for the economy because when you drive away online business and innovation, you drive away tax revenue, reducing government revenues to do anything at all.
What’s more is that this will inevitably lead to litigation. The speech violations of this are as obvious as the sun in the sky on a bright cloudless afternoon. We are talking about a federal government dictating what can and cannot be said. If that is not a violation of freedom of expression, I struggle to think what is. It’s not often that we see a case surrounding free speech be this cut and dry. In so many instances, we have to consider private businesses and what rights they have, the context of location, and so much more. That really doesn’t apply here given how broad such a government mandate is.
So, this leads to the obvious implications of the government paying high priced lawyers to fight for an obviously unconstitutional law. There’s a cost associated with this not to mention the fact that such a law is destined to be tied up in the courts in the process. Not only will you have civil rights organizations fighting against this for obvious reasons, but also Internet companies who actually understand the ramifications of such a law. In some instances, a companies very survival could ride on litigating the government. Good luck getting much more motivation then that to fight against a law.
So, if you want any more evidence that the consultation was not a serious effort to solicit feedback, the Prime Minister just handed it to you on a silver platter. His mind is already made up and the question now is when the fight to stop this law begins. Let’s face it, at this stage, if this somehow doesn’t become a bill by the end of next year, that would be a heck of a surprise to everyone involved.
Drew Wilson on Twitter: @icecube85 and Facebook.
