legislation

Legislating a fine line

Vancouver Police last week arrested a woman for praising the Oct. 7 terrorist attacks. The woman, who multiple reports say is Charlotte Kates, a leader in a group called Samidoun Palestinian Prisoner Solidarity Network, was later released as police develop their case to present to the Crown for possible charges.

News of the arrest was met with a level of satisfaction among Jewish community organizations. Kates and Samidoun have been sources of outrage and concern for years. The group is routinely described as having “direct ties to the Popular Front for the Liberation of Palestine (PFLP),” which is designated as a terrorist entity under the Criminal Code of Canada. Canadian Jewish organizations have called for Samidoun to receive a similar censure – as it has in Germany, where it is a banned organization, and in Israel, where it is designated as a terrorist entity.

Kates, a British Columbia woman who is married to Khaled Barakat, a senior member of the PFLP, was arrested in relation to recorded statements made outside the Vancouver Art Gallery last month. There, she referred to several terrorist organizations as heroes and described the Oct. 7 attacks as “the beautiful, brave and heroic resistance of the Palestinian people.” She led a crowd of hundreds in chants of “long live Oct. 7.”

Emergence of the video led to absolute condemnation from BC Premier David Eby.

“Celebrating the murder, the rape of innocent people attending a music festival, it’s awful,” said the premier. “It’s reprehensible, and it shouldn’t take place in British Columbia. There is clearly an element of some individuals using an international tragedy to promote hate that’s completely unacceptable.”

Kates is banned from participating in public protests for five months, according to a statement released by Samidoun. An investigation is underway and it will be up to Crown prosecutors to determine whether charges are laid and the case goes to trial.

In announcing the arrest, Vancouver police spokesperson Sgt. Steve Addison explained the line police walk.

“We defend everyone’s right to gather and express their opinions, even when those opinions are unpopular or controversial,” said Addison. “We also have a responsibility to ensure public comments don’t promote or incite hatred, encourage violence, or make people feel unsafe. We will continue to thoroughly investigate every hate incident and will pursue criminal charges whenever there is evidence of a hate crime.”

The arrest comes as the federal government begins a process of reviewing Canada’s approach to hate-motivated expression. New legislation beginning its way through the wending process of Parliament is focused especially on “online harms” and involves a multi-pronged approach that would see amendments to the Criminal Code, the Canadian Human Rights Act and new laws addressing cyber-bullying, “revenge porn,” encouragement of self-harm and other actions.

The bill (click here for story) is part of an ongoing effort to address the social and technological challenges of hate-motivated crimes, as well as the range of dangers presented to children and others by online predators, bullies and extortionists.

The federal government’s efforts, long delayed and inevitably controversial, are part of an age-old effort to walk a line between the right to free expression, on the one hand, and the right, on the other hand, for people to be free from harassment and threats based on personal identity or other factors. Any discussion of balancing these contending rights – which is anything but an exact science – is destined to disappoint or anger people on both sides.

The next steps in the current legal investigation – whether it proceeds to criminal charges and, if so, how the case proceeds and concludes – will also not satisfy everyone, if anyone. Indeed, it is a factor of this sort of case almost exclusively where many argue the challenging position that, in the words of Voltaire, “I disapprove of what you say, but I will defend to the death your right to say it.”

Few today would defend to the death the right of anyone to glorify Oct. 7 (or anything else, probably), but the point is that the right of free expression is considered by many to be sacrosanct. This has always been a core differentiator between our society and that to which we so often compare ourselves, the United States, whose constitution prioritizes precisely this sort of freedom.

An absolutist position is much easier for courts to adjudicate. Drawing lines in moral conundrums is a much more challenging undertaking.

As we watch this one case proceed locally, we will also be carefully observing the broader, legalistic and philosophical disputations occurring in Parliament as Bill C-63 proceeds through the creation process. The outcome, in both instances, will be necessarily imperfect. The hope is that they should be as just as human endeavours can be.

Online harms mooted

A federal bill to address online harassment, bullying and hate has aspects to admire and others to cause concern. What happens in the committee process will determine the success of the proposed law.

That is the take of two experts – including one who had a hand in drafting the legislation. The devil, as always, is in the details of balancing free expression with the right to be free from threats and harassment.

Dr. Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, who also serves on the advisory board of the Electronic Frontier Foundation, was joined in a recent online panel by Dr. Emily Laidlaw, Canada Research Chair in Cybersecurity Law and associate professor in the faculty of law at the University of Calgary. Her recent work includes projects on online harms, misinformation and disinformation, and she co-chaired the expert group that advised the federal government on the development of the Online Harms Bill, which is known as Bill C-63. The virtual panel, on April 17, was presented by the Centre for Israel and Jewish Affairs and moderated by Richard Marceau, CIJA’s vice-president, external affairs, and general counsel. More than 850 people registered for the event, indicating what CIJA board chair Gail Adelson-Marcovitz indicated is a depth of interest, and perhaps concern, about the bill.

Geist explained that the new bill is a result of years of work, following the federal government’s withdrawal of an earlier attempt at addressing the problem of online harms.

Bill C-63 is really three separate concepts rolled into one. It would amend the Canadian Human Rights Act and the Criminal Code, as well as introduce a new Online Harms Bill. Together, the components would codify currently inconsistent approaches to the problems.

The bill would redefine “hatred” in the Criminal Code and define a new crime of “offence motivated by hatred.” That offence, as well as advocating or promoting genocide, could lead to life imprisonment.

Amendments to the Canadian Human Rights Act would add the “communication of hate speech” via the internet or other telecommunication technology as a discriminatory practice. Individuals would be empowered to bring a complaint before the Canadian Human Rights Commission, which could penalize offenders up to $50,000. The law, if passed, would affect public communications, like social media posts, not private messaging or emails.

Separate components of the bill would make it easier and quicker to address specific offensive content, such as “revenge porn” and posts that could harm children, encourage suicide or bullying or otherwise endanger young people.

A digital safety commissioner and ombudsperson would help guide individuals through the process of dealing with bullying or other issues related to the law.

image - On April 17, Dr. Michael Geist of the University of Ottawa spoke as part of a CIJA panel discussion on the Online Harms Bill — On April 17, Dr. Michael Geist of the University of Ottawa spoke as part of a CIJA panel discussion on the Online Harms Bill. *(screenshot)*

Geist said many legal experts who seek to balance freedom of speech with freedom from abuse “breathed a sigh of relief” after the federal government abandoned earlier efforts and relied for the new bill on expert advice.

“It’s a pretty good starting point,” Geist said. “We know the broad brushstrokes of what that might include but there is a lot of uncertainty still, so it’s easy to like it when we don’t know the specifics.”

Geist and Laidlaw agreed on most points but had some differences around oversight. Geist said the bill appears to grant enormous powers to a new digital safety commissioner. The idea of life imprisonment for an online comment, he added, may be a sticking point. “I find that hard to justify,” he said.

Laidlaw said the new office of ombudsperson is an important step in helping individuals navigate online hate and harassment. The ombudsperson would be able to pass specific information on to the digital safety commission, whose mandate includes education and research supported by a digital safety office.

The bill would also place new obligations on corporations that run online platforms, like social media companies. At present, Laidlaw said, some companies, notably X (Twitter), are not taking the problem very seriously.

While Jewish advocacy organizations have long advocated for legal responses to hate speech, Geist warned of a double-edge sword.

“Could somebody who is supportive of Israel will be accused of promoting genocide?” he asked.

Geist upended the binary assumption of harassment and free expression, noting that the idea that limits on hate speech could chill expression ignores the existing, difficult-to-measure effects of online (as well as offline) harassment and bullying.

“There is already a chilling effect for anyone in our community and, frankly, in a number of communities, that speaks out on these issues,” he said. “The backlash that you invariably face causes, I think, many people to [reconsider] whether they want to step out and comment, and it’s not just online. There’s a chilling effect offline as well. These issues are very real and many of them will not be solved by legislation no matter what the legislation says.”

He fears a barrage of complaints, many vexatious, from all sides of many contentious issues.

While there is a needle-in-a-haystack challenge in addressing online harms, Geist said, addressing the problematic major players could have a broad impact, though no one believes online hate and bullying can be completely eradicated.

“The legislation talks about mitigating these harms, it doesn’t talk about eliminating them,” he said. Social media platforms, he believes, are looking for guidance on these issues and will be amenable to adhering to legislation. Moreover, he said, Canada’s proposals are somewhat belated responses that would put us roughly in line with the European Union, Australia, the United Kingdom and other jurisdictions.

image - Dr. Emily Laidlaw of the University of Calgary, who joined the CIJA panel discussion on April 17 — Dr. Emily Laidlaw of the University of Calgary, who joined the CIJA panel discussion on April 17. (screenshot)

The inability to erase hate and harassment is not an excuse to do nothing, Laidlaw said.

“Enforcement has always been an issue,” she said. “But I don’t think it’s a reason not to pass laws.”

Laidlaw took exception to criticism that the new bill would represent government censorship. The proposed digital safety commissioner would be an independent body comparable with the existing privacy commissioner.

“Where there is some risk is in the fact that, in the end, government appoints the individuals,” she said. Still, the appointees would need to be approved by Parliament, not just the government in office.

“And remember,” she added, the commissioner’s “oversight is of companies, not of individuals. They’re not making individual content decisions or holding individuals accountable here.”

The commission would not be subject to legal rules of evidence, making it possible to immediately take down things such as child porn, encouraging suicide or other especially egregious posts.

Geist said this significant power demands that the government spell out more clearly the limitations of the commission.

“At a minimum, it seems to me that it is incumbent on the government to flesh out in far more detail where the limits, where the guardrails, are around the commission, so that we aren’t basically adopting a ‘trust us’ approach with respect to the commission,” said Geist.

Parliament is expected to take up consideration of the bill in committee soon and Laidlaw argued that some aspects deserve speedy passage while others require far more sober consideration.

“The Online Harms Bill could be passed with minor tinkering,” she said. The Criminal Code provisions, she said, give her serious concerns and deserve major revisions or complete scrapping. She also struggles with changing the Canadian Human Rights Act.

Geist agreed on taking the bill apart.

“I would separate out the bill,” he said. Criminal Code and Human Rights Act amendments deserve much deeper consideration, he said. The online harms piece, he said, could be tidied up and passed with tweaks.

Let’s talk about new bill

The federal Liberal government has introduced a new Online Harms Bill. The bill is intended to address two primary areas of concern – hate crimes against groups and posts that harm individuals, such as those that bully children – and recognizes a range of what are clearly serious problems.

If passed, the new law would require social media platforms and “user-uploaded adult content” websites to delete offending posts within 24 hours. These could include posts that encourage self-harm, target a child for bullying or are examples of “revenge porn” – the distribution of, for example, nude photos of a former partner.

The bill also proposes making hate-motivated crimes a separate offence. Hate motivation can currently be considered in the sentencing phase as an aggravating context. The bill would amend the Canadian Human Rights Act to have the Canadian Human Rights Commission address some of these concerns.

Maximum penalties would be severely stiffened. For example, the maximum sentence for advocating genocide online would be life imprisonment, up from five years.

The law would also create a panel, a “digital safety commission,” to oversee online content and it would reclassify hate speech as discrimination under the Criminal Code. A digital safety ombudsperson would support victims and guide social media companies. Companies that break the rules could be fined up to $10 million or six percent of their global revenues. Private messages between individuals, like email, would not fall within the prohibitions.

Since Section 13 of the Canadian Human Rights Act was repealed a decade ago, commentators and activists, including Jewish organizations, have been calling for something to address serious issues around online content. This is the government’s overdue response – overdue by its own admission, having promised during the last election campaign to advance such a bill in its first 100 days if reelected.

Opposition parties fell into sadly predictable lines. New Democrat leader Jagmeet Singh said his party will vote for the bill and condemned the government for waiting so long. Conservative leader Pierre Poilievre turned his hyperbole hose on full force, calling the bill part of “Justin Trudeau’s woke authoritarian agenda.”

“What does Justin Trudeau mean when he says the words ‘hate speech’? He means the speech he hates,” said Poilievre. “You can assume he will ban all of that.”

Surely parliamentary democracy can come up with something more nuanced between “Faster, faster! More, more!” and “We’re all headed for the gulags.”

The bill was tabled last week and will go through committee before coming back to the House of Commons. The committee phase is when elected officials examine the details of proposed legislation and we trust (despite the above caveats) that sober consideration will be given to balance the right to free expression and the legitimate need to protect individuals and groups from harm.

The experience of now-defunct Section 13 should be an object lesson for politicians considering the new law. The section was finally killed after showing itself to be both too weak to address the realities of an online world that didn’t exist when the law was originally drafted, yet strong enough to drag individuals and institutions with controversial but probably reasonable speech (for example, Maclean’s magazine and commentator Mark Steyn) before something resembling a Cold War show trial.

Justice Minister Arif Virani responded to concerns over free expression.

“It does not undermine freedom of speech. It enhances free expression by empowering all people to safely participate in online debate,” he said. This reflects an emerging approach to online dialogue, in which traditional ideas of free speech are balanced with the reality that some people are excluded from participation through harassment and threats, which may be a fair assessment.

Outrage at hate speech is an appropriate response, but one aspect of the bill could have the effect of turning reasonable people off it. Few would seriously believe that a judge is going to send someone to prison for life (ie., 25 years) for a late night, drunken rant that the law characterizes as incitement to genocide. However, the fact that the law would permit precisely that outcome makes the whole exercise faintly preposterous, like the exasperated parent who shouts, “You’re grounded for life!” Appearance can be reality and that aspect of the bill looks ridiculous. Moreover, all of us should apply sober second thought when advocating for the expansion of the prison system – imprisonment is not a solution to hate.

Canada has always taken a different approach to expression than our First Amendment cousins in the United States. Absolutism, which is the American approach, is comparatively easy. The more nuanced approach of finding a balance is an organic, always shifting challenge.

Most Canadians do not pay a great deal of attention to the goings-on in parliamentary committees. This would be a good time to start. Last week’s tabling of the Online Harms Bill should be the beginning of a national conversation.

Housing as a human right

A tent city in Vancouver’s Oppenheimer Park, 2019. Canada has some of the lowest stock of social housing – about 3.5% of total housing stock, compared with 16% or 17% in the United Kingdom, and 7.5% across the European Union. (photo by Ted McGrath / flickr.com)

Recent federal legislation promises to revolutionize the way Canada confronts housing and homelessness – but the paper promises depend on tangible actions, according to expert panelists assembled last month at an annual human rights dialogue convened by two leaders in Vancouver’s Jewish community.

Housing as a Human Right was presented online Nov. 29 by the Simces & Rabkin Family Dialogue for Human Rights, in partnership with the Canadian Museum for Human Rights and Equitas, a centre for human rights education.

Zena Simces and Simon Rabkin, founders of the dialogue, now in its fifth year, set the terms of the discussion by outlining the scope of the problem.

“We established this dialogue to enhance understanding and create an opportunity for conversation on current human rights issues that are impacting us as a community and as a society, with the hope of generating positive actions,” said Simces, who has decades of experience in human rights issues, including as a leader in the now-defunct Canadian Jewish Congress.

A recent poll in Vancouver, Simces noted, indicates that 48% of respondents identify housing as a top priority.

“We have legislation in Canada, the National Housing Strategy Act, that enshrines housing as a human right,” said Simces. “But what does this actually mean? Why is housing being treated as a commodity and not as a social good and a legal right? What can be done to make a difference?”

Rabkin, a medical doctor who has provided healthcare in underserviced areas in Canada’s north and in Africa, explained the health outcomes of homelessness and inadequate housing.

“There is good evidence that people dealing with inadequate housing confront a wide range of adverse health consequences such as poor mental health, lung disease and various infectious diseases, to name a few,” he said. “As a physician, I see these health consequences, specifically poor cardiometabolic health, including higher prevalence and poor control of conditions such as hypertension, diabetes and heart failure.

“Death rates of the homeless in North America are three to five times greater than in the general population,” he added. “Cardiovascular diseases are a major cause of death in homeless adults between 25 and 64 years of age and are three times more common in the homeless than in an age-matched general population.”

The event was moderated by homelessness and anti-poverty activist Michael Redhead Champagne, a community leader in North Winnipeg, where Simces and Rabkin both grew up.

The National Housing Strategy Act, passed by Parliament in 2019, has the potential to shift housing from a charity model to a justice model approach, according to the event’s panelists. It applies international law to the Canadian context and created a federal housing advocate.

“It’s led to more data because we have terrible data about housing need and information around unhoused populations,” said panelist Alexandra Flynn, a University of British Columbia law professor and director of the Housing Research Collaborative, which focuses on Canada’s housing crisis. She is a data evangelist who helped create the Housing Assessment Resource Tools project. These federally funded tools allow anyone to enter their municipality and see how much housing is needed, based on available data, she said.

“Having that information is a necessary foundation for the right to housing,” she said. “How can we know what we need to do as a community, as governments, if we don’t know how different people are impacted?”

Some of the foremost work in the field is being done at the municipal level, said Flynn, whose academic work centres on local governance. For example, she said the city of Toronto has forced the three levels of government to the table and, in London, Ont., community activists have forced officials to adopt a “human rights lens” for how people in tent cities are treated.

The 2019 legislation is so revolutionary it led panelist Kaitlin Schwan to leave a job at the United Nations in New York to return to Canada. Schwan is now executive director of the Women’s National Housing & Homelessness Network and a senior researcher at the Canadian Observatory on Homelessness. She teaches social policy at the University of Toronto’s Faculty of Social Work and is a former senior researcher for the United Nations Special Rapporteur for the Right to Adequate Housing.

“It was absolutely historic,” she said of the National Housing Strategy Act. “It creates a new legal path for advancing housing affordability and adequacy in Canada.”

The act sets out guidelines for how government is accountable to rights-holders.

“It’s based in international human rights law and these laws dare to insist on a society that holds everyone equal in dignity and worth,” said Schwan, whose work emphasizes the impacts of gender on the housing issue.

“We don’t often think of the housing crisis as a gendered crisis, but it really, really is,” she said. “When you look at the research, we know that women and gender-diverse folks, especially racialized folks, indigenous folks, LGBTQ2S folks, are more likely to be in core housing need, live in poor housing, have poor income, struggle with security tenure. There is a huge range of data in this area.”

A group of individuals and agencies has made a human rights claim under the new legislation and the federal housing advocate is undertaking an inquiry. After that report is delivered to Parliament, said Schwan, the federal housing minister will have 120 days to respond.

Schwan criticized existing patterns of presumed solutions which, she said, see a majority of funding going into housing that is not going to meet the needs of those with low, or very low, incomes.

“A majority of where we’re spending federal dollars in terms of the development of housing is in middle class or slightly lower housing development,” she said.

Compared to other developed countries, Schwan said, Canada has some of the lowest stock of social housing – about 3.5% of total housing stock, compared with 16% or 17% in the United Kingdom, and 7.5% across the European Union.

“Do not believe the narrative that this problem is not solvable, that it’s too complex, that we can’t get there,” she said. “It is not true. There are countries, like Finland, like others around the world, who have eradicated homelessness – not through tremendously complex initiatives that we can never understand. There are roadmaps around the world that we can be drawing on as a nation. We have the resources and we have the capacity to build a really dignified world for us to live in.”

The third panelist, Lavern Kelly, runs the Youth Excelling & Attaining Housing (YEAH!) Parenting Program at Watari Counseling and Support Services. She works with youth, especially single women and young mothers, in Vancouver’s Downtown Eastside. As a youth, she was a ward of child services.

Canada’s federal system, she said, allows the three levels of government to point fingers at one another and avoid addressing the problem.

Public opinion is another barrier, she added. Many have the belief that all youth in need have housing and that there are many supports in place to protect them.

“This is not the case,” said Kelly. “We know housing is difficult for even the average person. Can you imagine how hard it is for youth to find housing, with all the barriers that they face just by being a youth? We need to support our youth by advocating for the right to housing.”

Adequate housing is critical to young people’s success, she said.

“When basic needs are met, one can succeed,” said Kelly. “When a youth is housed, they have a stronger sense of safety and belonging. They can build roots, networks, friends and neighbours.”

The recorded event can be accessed at the Canadian Museum for Human Rights website or YouTube channel.

Every person has a voice

Elon Musk’s purchase of the social media behemoth Twitter, which appears probable, is raising questions about what the new management could mean to users and society at large. For Jewish tweeters and others, there are red flags.

The growth of social media of all varieties over the past 15 years has resulted in a massive change in the public dialogue. People have some ability to amplify or diminish the voices they do or do not want to hear, resulting in an unprecedented ability to self-select the information (or misinformation) to which we are exposed. The relative anonymity of the media has had additional harmful impacts, with racist, misogynistic, homophobic, antisemitic and other hateful statements being posted in volumes too massive to effectively police. The spike in antisemitic hate crimes we have seen in recent years is almost certainly a result, in part, of online antisemitism moving into the “real” world.

Since 2016, when Russian and other bad actors influenced the U.S. presidential election in favour of Donald Trump, some platforms, including Twitter, have been driven to address some of the most egregious content on their sites and abuse of the medium. Their efforts, however imperfect and inadequate, reflect an assumption that hate speech should not be accepted.

Musk’s planned purchase of Twitter (which has a number of hurdles yet to overcome) raises fears among some that his self-identification as a “free speech absolutist” may reverse the small strides Twitter has made in addressing hate speech.

If Musk, who is presumed to be the richest person on earth and who is known to be a micromanager, chooses to imprint on Twitter his vision of absolute free speech, we should expect the limited efforts to police the worst content will be diminished or eliminated.

Of course, Musk would not be the final arbiter of what is acceptable. He may be the richest person on earth and Twitter may be among the most powerful communications platforms ever known, but they are still subject to government oversight.

Among the challenges, of course, is that Twitter, like the rest of the internet, effectively knows no national boundaries. So, while the United States is lenient toward extreme speech, different countries take a different approach.

For example, Canada’s Parliament is considering two proposals to make it illegal to deny or diminish the historical facts of the Holocaust. Legislation like this – as well as existing hate crimes laws that prohibit the targeting of identifiable groups – will inevitably come up against transnational norms set by platforms like Twitter. Will social media platforms face endless legal challenges? Or will the sheer volume of offences make it impossible to challenge any but the most outrageous affronts?

Canadians have always had a different approach to free speech than our American cousins. Our Parliament, like many in Europe, recognizes limitations in the interest of national harmony. These often lead to contentious debates over where lines should be drawn. Introduce an anarchic, foreign-owned social media platform into the equation and these discussions become far more complicated.

These are difficult issues. In a perfect world, absolute free speech would be ideal, because, again in a perfect world, individuals themselves would balance their right to expression with their responsibilities as citizens of a pluralistic society. But, we do not live in a perfect world and some compulsion sadly seems necessary to prevent, say, outright incitement to murder or genocide.

Here, though, is something not difficult or complicated at all – we do not need legislation or philosophical debates around freedom in order to counter hate speech right now. In this space, over many years, we have argued that the best way to confront bad, or hateful, speech is not stifling that speech, but countering it with truth, compassion and decency. Silencing hatred (even if it were possible in the wired world) will not eliminate hatred. We are in a war of words, and more words, not fewer, should be our approach.

A magnificent case-in-point occurred in the past month.

After the student society of the University of British Columbia passed a resolution endorsing the boycott movement against Israel, Santa Ono, the president of the university, responded with a thoughtful statement condemning BDS.

Too often, destructive, hateful messages like anti-Israel boycott resolutions are met with silence, usually with the excuse that such resolutions or protests are legitimate expressions of free speech. Of course, they may well be. But this argument, which was used by UBC administrators and others in the past, misses the point. Free speech does not mean the right to have one’s opinions uncontested. As Ono’s statement makes clear, both sides have a right to have their voices heard. That is free speech.

At a time when too many campuses across North America are roiling with anti-Israel spectacles, the significance of a statement like Ono’s did not go unnoticed. In fact, the university president received a letter from another president. Isaac Herzog, the president of Israel, wrote a “Dear Santa” letter, thanking Ono for his unequivocal statement.

That Israel’s head of state would intervene to express gratitude for Ono’s statement is itself a statement of how serious the threats are from uncontested hate speech. But it also reminds us that we do not need legislation or courts to stand up – as individuals and as a community – against egregious attacks. Every person has a voice. Some use it to spread misinformation and hatred. Others use it for good.

Who stops the hate?

Taylor Owen speaks at the third annual Simces and Rabkin Family Dialogue on Human Rights, Nov. 9. (screenshot)

Canada, like most of the world, is behind in addressing the issue of hate and violence-inciting content online. In attempting to confront this challenge, as the federal government will do with a new bill in this session of Parliament, it will be faced with conundrums around where individual freedom of expression ends and the right of individuals and groups to be free from hateful and threatening content begins.

The ethical riddles presented by the topic were the subject of the third annual Simces and Rabkin Family Dialogue on Human Rights, Nov. 9, in an event titled Is Facebook a Threat to Democracy? A Conversation about Rights in the Digital Age.

The annual dialogue was created by Jewish Vancouverites Zena Simces and her husband Dr. Simon Rabkin. It was presented virtually for the second year in a row, in partnership with the Canadian Museum for Human Rights.

The featured presenter was Taylor Owen, who is the Beaverbrook Chair in Media, Ethics and Communications, the founding director of the Centre for Media, Technology and Democracy, and an associate professor in the Max Bell School of Public Policy at McGill University. He presented in conversation with Jessica Johnson, editor-in-chief of The Walrus magazine.

The advent of the internet was seen as a means to upend the control of a society’s narrative from established media, governments and other centralized powers and disperse it into the hands of anyone with access to a computer and the web. Instead, as the technology has matured, online power has been “re-concentrating” into a small number of online platforms like Facebook, Twitter and YouTube, which now have more global reach and cultural power than any preexisting entity.

“Understanding them and how they work, how they function, what their incentives are, what their benefits are, what their risks are, is really important to democratic society,” said Owen.

These are platforms that make money by selling ads, so it is in their interest to keep the largest number of people on the platform for the longest time possible, all while collecting data about users’ behaviours and interests, Owen said. These demands prioritize content that is among the most divisive and extreme and, therefore, likely to draw and keep audiences engaged.

The sheer volume of posts – in every language on earth – almost defies policing, he said. For example, in response to public and governmental demands that the company address proliferating hate content and other problematic materials, Facebook has increased resources aimed at moderating what people post. However, he said, 90% of the resources dedicated to content moderation on Facebook are focused on the United States, even though 90% of Facebook users are in countries outside of the United States.

A serious problem is that limitations on speech are governed by every country differently, while social media, for the most part, knows no borders.

Canada has a long precedent of speech laws, and Parliament is set to consider a controversial new bill intended to address some of the dangers discussed in the dialogue. But, just as the issues confounded easy answers in the discussion between Owen and Johnson, attempts to codify solutions into law will undoubtedly result in fundamental disagreements over the balancing of various rights.

“Unlike in some countries, hate speech is illegal here,” said Owen. “We have a process for adjudicating and deciding what is hate speech and holding people who spread it liable.”

The United States, on the other hand, has a far more libertarian approach to free expression.

An example of a country attempting to find a middle path is the approach taken by Germany, he said, but that is likely to have unintended consequences. Germany has decreed, and Owen thinks Canada is likely to emulate, a scenario where social media companies are liable for statements that represent already illegal speech – terrorist content, content that incites violence, child exploitative content, nonconsensual sharing of images and incitement to violence.

Beyond these overtly illegal categories is a spectrum of subjectively inappropriate content. A single media platform trying to accommodate different national criteria for acceptability faces a juggling act.

“The United States, for example, prioritizes free speech,” he said. “Germany, clearly, and for understandable historical reasons, prioritizes the right to not be harmed by speech, therefore, this takedown regime. Canada kind of sits in the middle. Our Charter [of Rights and Freedoms] protects both. The concern is that by leaning into this takedown regime model, like Germany, you lead platforms down a path of over-censoring.”

If Facebook or YouTube is threatened with fines as high as, say, five percent of their global revenue if they don’t remove illegal speech within 24 hours, their incentive is to massively over-censor, he said.

Owen said this will have an effect on the bottom line of these companies, just as mandatory seatbelts in cars, legislation to prevent petrochemical companies from polluting waterways and approval regimes governing the pharmaceutical industry added costs to those sectors. Unfortunately, the nuances of free speech and the complexities of legislating it across international boundaries make this an added burden that will probably require vast resources to oversee.

“It’s not like banning smoking … where you either ban it or you allow it and you solve the problem,” said Owen. There are potentially billions of morally ambiguous statements posted online. Who is to adjudicate, even if it is feasible to referee that kind of volume?

Rabkin opened the dialogue, explaining what he and Simces envisioned with the series.

“Our aim is to enhance the understanding and create an opportunity for dialogue on critical human rights issues, with the hope of generating positive actions,” he said.

This year’s presentation, he said, lies at a crucial intersection of competing rights.

“Do we, as a society, through our government, curtail freedom of expression, recognizing that some of today’s unsubstantiated ideas may be tomorrow’s accepted concepts?” he asked. “Unregulated freedom of speech, however, may lead to the promulgation of hate towards vulnerable elements and components of our society, especially our children. Do we constrain surveillance capitalism or do we constrain the capture of our personal data for commercial purposes? Do we allow big tech platforms such as Facebook to regulate themselves and, in so doing, does this threaten our democratic societies? If or when we regulate big tech platforms, who is to do it? And what will be the criteria? And what should be the penalties for violation of the legislation?”

Speaking at the conclusion of the event, Simces acknowledged the difficulty of balancing online harms and safeguarding freedom of expression.

“The issue is, how do we mitigate harm and maximize benefits?” she asked. “While there is no silver bullet, we do need to focus on how technology platforms themselves are structured. Facebook and other platforms often put profits ahead of the safety of people and the public good.… There is a growing recognition that big tech cannot be left to monitor itself.”

The full program can be viewed at humanrights.ca/is-facebook-a-threat-to-democracy.