Canada, the internet, social media, privacy laws and freedom of speech

by Maj (ret'd) CORNELIU E. CHISU, CD, PMSC, FEC, CET, P. Eng. Former Member of Parliament Pickering-Scarborough East As spring descends on Canada, with economic worries and a bleak international environment surrounding us, Canadian parliament is in session and focusing on laws to put more controls on the citizens of Canada. Two of the most important values in a democracy are the right of citizens to have their privacy protected and their right to free speech. With the advances in internet technology and electronic management of your finances, shopping and social media, you never know where your personal information is going. Worse still, your personal information and even your personal movements can now be tracked and used by malefic organizations with the intension to control you and eventually punish you. So we need to do something to avoid further loss of our personal freedom, while also avoiding a nefarious digital environment. Canada's current privacy law, which governs how Canadians' personal information must be handled and protected by the businesses and government you share it with, was brought into force about 20 years ago. While there have been some tweaks made to it since then, the digital world we live in today is vastly different from twenty years ago. Federal law simply hasn't kept up with the pace of change, and consequently, ordinary Canadians donating to charitable organisations and Canadian businesses are now finding themselves exposed and at a disadvantage. Unfortunately, state bureaucrats like to do work for themselves and create little kingdoms. In Canada there is the added complication of several sets of privacy laws; the federal privacy law and the provincial privacy laws. How nice and efficient. The federal privacy laws, including those that regulate digital privacy and digital trade, are increasingly coming into play, and are also significantly outdated. They are now outdated to the point of holding Canadian innovation and entrepreneurship back, while also limiting the freedom of expression. The lesson to learn from this is to create an efficient law, a common sense one, to ensure that Canada doesn't end up with a proliferation of new privacy laws being enacted in each province individually. More importantly, the new privacy law must not act as a limitation on personal freedoms. In a digital world, Canadians are connected like never before. As virtual activities continue to increase, businesses and their customers must be confident that their data is protected. Simply put, Canada needs 21st century privacy legislation to help get the job done. This new reality creates a world of opportunity for those who desire to have some control over you, your activities and your movements. This must be avoided at all cost. There is little doubt amongst experts, policy makers and the public, that the ways in which our digital infrastructure is designed and incentivized has had widespread social, economic, and political costs. The largest and most vexing piece of this policy agenda is what to do about harmful content online and how we define it. When we discuss this issue we need to be very careful to avoid infringing on the basic freedom, the freedom of speech. We need to be assured that ensuring online safety does not harm the core democratic right, which is the free expression. Democratic governments around the world define and regulate speech differently, and so there is no global set of rules for platforms to follow - this will be determined country by country. In the Canadian context, the Charter provides robust protection for free speech, while recognizing that governments can limit speech to prevent harms, provided the limits are reasonable and justified in a free and democratic society. So the Canadian government must find the best way to accommodate privacy, safety and freedom of expression. Some countries have developed some systems, but our society must define one for Canadians by the Canadian legislators who have been elected to serve the people. The systems must be made radically transparent. One of the core problems with digital platforms is their opacity. Platform companies such as Facebook and Google could be compelled to share privacy-protected data with the public. Platforms must also be held accountable for how they build their products. To do so, we should base our regulatory system on a concept already in use in Canadian law - that of a statutory duty to act responsibly. This would place the onus on platforms themselves to demonstrate that they have acted in a manner that would minimize the harm of the products they build and offer to Canadians. A well-resourced regulator could have the power to audit these systems. It is also critical to shift the balance between platforms and their users. We can do so through mandated interoperability and data portability, a serious national civic education and digital literacy initiative, and critically, significantly strengthened and long overdue data privacy protection. This approach is not about responding or reacting to content, or speech, but about assessing the level of risk and implementing product safety standards so that platforms are being subject to the same statutory duty to act responsibly as other consumer facing products. For too long the issue of online harms has been erroneously framed as one of individual bad actors and the regulation of speech, but the problem is one of systemic risk and it must be addressed as such. Canada now has the chance to learn from and build on the policies attempted in other countries and get it right once and for all. Hope they will do it well!