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The (Still Secret) Online Harms Consultation: What the Government Heard, Part Two

Last week, I posted on the results of this summer’s online harms consultation, which remains shrouded in secrecy as the Canadian government still refuses to disclose the hundreds of submissions it received. That post focused on the common concerns raised in the submissions as pulled from my ongoing blog post that features links to dozens of submissions that have been independently posted. This second post highlights frequently cited recommendations. These recommendations are particularly important given that the mandate letter for Canadian Heritage Minister Pablo Rodriguez indicates that any online harms legislation “should be reflective of the feedback received during the recent consultations.”

That language is notable since the most common recommendation was to call on the government to scrap the consultation and hold a new one. Many argued the consultation was deeply flawed (because it does not actually ask questions, was conducted during an election, offered a complete policy as opposed to asking about the best approach), advocating instead for meaningful contributions by stakeholders to determine the shape of the policy backed by more of an evidence-based approach from government.

Several submissions maintained that the government should explicitly acknowledge that human rights protection be the guiding principle, both in terms of the legislation and in how content moderation is conducted. Because of the potential harm to rights that this regime could have is significant, they argue such explicit recognition is needed to both create a safe bill and ensure it is implemented according to human rights principles

There was also widespread support for removing the 24 hour takedown requirement, though there was less agreement about what should replace it. Some did not recommend any measures beyond removal. A few recommended alternate time frames with which content should be removed, such as requiring it be done “expeditiously”, implying more of a duty of care framework that allows for more flexibility when making determinations. Others suggested a ‘trusted flagger’ system that would grant certain content flaggers special status indicating that their reports are trustworthy, thereby allowing for more expeditious takedowns.

There were also considerable calls to refine the definitions and scope of the law. For example, many called for a narrowing of the scope of the reporting requirements to law enforcement or its removal altogether. Those in favour of keeping it suggested narrowing it to situations where harm to person is imminent or for certain, specific kinds of online harm such as child sexual exploitation material and terrorism content.

Many recommended that website blocking be removed or, if the government insists on implementing it, narrowly defined to protect rights and only used as an extraordinary remedy. Another common recommendation was the removal of proactive monitoring obligations altogether.

 

Recommendations Who Recommended It? Number of Submitters
1. Stop this proposal and undertake a more robust consultation process with explanations/justifications for the policy Canadian Civil Liberties Association

CitizenLab

International Civil Liberties Monitoring Group

Internet Archive of Canada

Internet Society: Canada Chapter

Joint Submission from Civil Liberties and Anti-Racism Groups

LEAF

OpenMedia

TechSavvy

Tucows

Haggart and Tusikov

11
2. Remove 24-hour timeline AccessNow

Canadian Civil Liberties Association

CIPPIC

Cybersecure Policy Exchange

Global Network Initiative

Google Canada

OpenMedia

Ranking Digital Rights

Carmichael and Laidlaw

9
2(a). Mandate the review of content “expeditiously” which provide flexibility for determinations AccessNow

CIPPIC

Cybersecure Policy Exchange
Global Network Initiative

Google Canada

TekSavvy

Carmichael and Laidlaw

7
2(b). Have expedient takedowns for child sexual abuse material and non-consensually distributed intimate images, but not the other harms LEAF 1
2(c). Have clear guidelines for what characteristics merit prioritization in moderation Global Network Initiative 1
2(d). Separate the content removal obligations from the voluntary ‘flagging’ systems that the platforms have for legal, but harmful, content Google Canada 1
“Trusted Flagger” system Google Canada

Carmichael and Laidlaw

2
3. Definitions need to be more precise/narrow (what services are covered, the precise definitions of the harms) AccessNow

CIPPIC

Cybersecure Policy Exchange

Global Network Initiative

Google Canada

International Civil Liberties Monitoring Group

Technation

Carmichael and Laidlaw

McKelvey

9
3(a). Policy should target only what is illegal Technation

Google Canada

2
3(b). The GiC should not be delegated such broad powers to change the scope of the proposal Independent Press Gallery 1
4. Site-blocking should be removed or narrowly defined with clear criteria AccessNow

Cybersecure Policy Exchange

Internet Society Canada Chapter

OpenMedia

Public Interest Advocacy Centre

TechSavvy

Tucows

Carmichael and Laidlaw

8
4(a). Stricter safeguards around site-blocking to ensure it does not infringe rights Public Interest Advocacy Centre

TekSavvy

Carmichael and Laidlaw

3
4(b). CRTC should be the decision-maker for site-blocking, if site-blocking is mandated Public Interest Advocacy Centre 1
5. Reporting to law enforcement obligations should be narrow (such as for imminent harm or child sexual exploitation/terrorism)/not exist and cannot be combined with proactive monitoring CIPPIC

Cybersecure Policy Exchange

Chinese Canadian National Council for Social Justice

Google Canada

International Civil Liberties Monitoring Group

LEAF

OpenMedia

Carmichael and Laidlaw

8
5(a). Due process protections should be included in the reporting requirements Google Canada 1
6. Remove proactive monitoring AccessNow

CIPPIC

Cybersecure Policy Exchange

Google Canada

OpenMedia

Technation

Carmichael and Laidlaw

7
6(a). Indicate that using automated systems is not mandatory Google Canada 1
7. Each harm should be dealt with independently CitizenLab

International Civil Liberties Monitoring Group

Internet Society Canada Chapter

LEAF

OpenMedia

TechSavvy

6
8. Have human rights-based approach i.e. as explicit guiding principles Ranking Digital Rights

LEAF

TechNation

Carmichael and Laidlaw

4
There must be democratic oversight of the regulators Global Network Initiative

Ranking Digital Rights

Technation

3
Transparency requirements should be publicly accessible in a way that protects privacy Cybersecure Policy Exchange

International Civil Liberties Monitoring Group

LEAF

3
Target the ad-centric business model for regulation OpenMedia

Ranking Digital Rights

Haggart and Tusikov

3
Independent/non-governmental/public auditing and transparency around content moderation tools, algorithms, and human rights impacts Chinese Canadian National Council for Social Justice

OpenMedia

Ranking Digital Rights

3
Recognize new forms of harms (identity fraud, TFGBV based ones like rape and death threats, online threats to journalists) Cybersecure Policy Exchange

LEAF

News Media Canada

3
Regulate the broader digital economy, dealing with issues like monopolistic behaviour Canadian Association of Research Libraries

Haggart and Tusikov

2
Proposal raises concerns for innovation and competition Google Canada

Wilson

2
CSIS’ new powers should be dealt with in a separate bill International Civil Liberties Monitoring Group 1
Increase funding for libraries Canadian Association of Research Libraries 1
Provide more immediate and direct support to victims experiencing TFGBV (technology-facilitated gender based violence) LEAF 1
Provide alternative remedies to those proposed through law enforcement/criminal justice LEAF 1
Add research and education as one of the central mandates of the regulator LEAF 1
Regulate OCSPs through mandating criteria for meaningful transparency, due process requirements, etc AccessNow 1
Implement provisions that highlight the principle of protecting children Canadian Coalition for the Rights of Children 1
A bill must immediately be tabled with a fixed budget and timeline to ensure it is created soon Chinese Canadian National Council for Social Justice 1
The advisory board must be transparent and have its individuals elected Chinese Canadian National Council for Social Justice 1
The burden on the appeals process should be on the content producer to show it is legal Chinese Canadian National Council for Social Justice 1
There should be a uniform reporting function Chinese Canadian National Council for Social Justice 1
Enforcement measures should be more stringent Chinese Canadian National Council for Social Justice 1
The police role should be cautiously implemented Chinese Canadian National Council for Social Justice 1
There should be staggered obligations for different size organizations Carmichael and Laidlaw 1
Expand the due diligence defence Google Canada 1
Ensure that monetary penalties are imposed in a reasonable and proportionate manner Google Canada 1

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