Given the enormous popularity of social media, establishing a foothold on Facebook, Twitter, YouTube, and other popular websites has become a top priority for most organizations. The same is true for the federal government, which last year released a lengthy policy document that established the rules for departmental engagement with “Web 2.0” sites and tools.
The policy document encourages officials to use the sites “as an efficient and effective additional channel to interact with the public”, noting that the Internet offers opportunities for public consultation, recruitment, collaboration, and the provision of government services.
The government acknowledges that there are risks, however. These include potential misuse of government content or the possibility of negative perceptions associated with official use. While the document establishes a myriad of rules and guidelines for use of these services, it surprisingly does not consider how to respond to the negative risks.
The absence of policy direction may be partially to blame for recent revelations of government department demands to Google to remove certain content from its search database or websites. The haphazard manner in which these demands have occurred demonstrate the dangers of proceeding in an ad hoc manner in which officials race to demand the removal of lawful content without uniform policies or guidelines.
The most notorious example occurred in September 2011, when officials at Passport Canada asked Google to remove a YouTube video featuring a Quebec man urinating on his passport and attempting to flush it down a toilet. Google rejected the request, but the department has steadfastly defended the takedown demand on the grounds that “desecrating property of the Government of Canada is not something we will support or condone.”
Yet newly obtained documents under the Access to Information Act indicate that the request was little more than a knee-jerk reaction to an online news story without internal vetting or legal analysis.
On September 29, 2011, an article appeared on AmeriQuebec.net, an independent Quebec media site, calling attention to the YouTube video, which was a somewhat vulgar protest against plans to include the Queen’s crown inside pages of Canadian passports. The video had just 21 views at the time, but the reaction within Passport Canada was to immediately contact Department of Justice officials for legal assistance and to express the hope that “we can legally threaten whoever posted it.”
The following day – before a legal analysis had even been completed – a Passport Canada official filed a takedown notice with YouTube, listing the violating law as “a Canadian citizen urinates on his Canadian passport before disposing the travel document down the toilet.”
While the case might be excused on the grounds that it involved an isolated incident and an overzealous official, a recent request for all Google-related government takedown requests by Lise St-Denis, a Liberal Member of Parliament, confirmed that Fisheries Canada also had a 2011 takedown request rejected by Google (other copyright related demands from the National Film Board and Public Service Commission have succeeded).
Moreover, earlier this year, Transport Canada issued a takedown demand to Scribd.com over the posting of an on-the-record response it provided to a journalist, while the Department of National Defence sought the removal of a leaked government document that had widely circulated for several years.
There may be legitimate reasons for some of the takedowns, particularly those involving inadvertent disclosures of personal information due to incorrect search engine settings, yet the absence of a government-wide policy on takedowns demands that fully respects free speech rights is a cause for concern. The government’s decision to embrace Web 2.0 is welcome, but a more balanced plan to address risks might help prevent future legally questionable takedown demands.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.