The proposed settlement between Meta and 51 U.S. state attorneys general, filed last week and still subject to court approval, ranks among the biggest developments in technology litigation in years, featuring both big money and big design changes. The settlement is limited to the participating states, but it is likely to have significant implications for Canadian users and for legislative initiatives such as Bill C-34. Whether Meta extends the measures voluntarily, in response to similar Canadian lawsuits, or as part of a legislated duty to act responsibly in Bill C-34, changes are likely to make their way into Canada. This post highlights key provisions of the settlement and reviews the implications for three Canadian policy concerns: legislation vs. litigation, age verification or age assurance, and privacy.
Post Tagged with: "c-34"
Online Harms’ Forgotten Generation: Why the Government Needs to Pay Attention to Protecting Seniors
For much of the past month, someone has been trying to break into my Apple account. I receive regular e-mail and text notifications confirming a password change, which are soon followed by spoofed phone calls with caller ID that purports to be from the company but likely originates from Russia. As my Globe and Mail op-ed notes, I know enough to ignore the calls, delete the messages, and ensure I have two-factor authentication enabled to help keep hackers out.
Thanks For Joining the Movement: French Constitutional Council Strikes Down Kids’ Social Media Ban
French President Emmanuel Macron has been the global leader in promoting a ban on social media for kids, consistently welcoming countries that propose such measures with a “thanks for joining the movement” tweet. That includes Canada, which received its congratulatory tweet after a ban was included in Bill C-34. As I argued last month, however, I believe the Canadian ban is vulnerable to constitutional challenge on at least two fronts: freedom of expression, since blocking an entire cohort of Canadians from accessing information and expressing themselves on social media infringes Section 2(b) of the Charter, and privacy, since enforcing the ban will require millions of Canadians to verify their age to use social media services with the promised safeguards nowhere in place when the ban takes effect. Last week, France became the first major jurisdiction to have such a ban reviewed by its highest constitutional court, and it proceeded to strike down the law on substantially the same two constitutional concerns.
Why the Answers to Hateful Content Online are Hiding in the Platforms’ Own Rules
The Canadian government has a two-pronged legal strategy to counter rising hate: New Criminal Code provisions to address offline harms, such as intimidation or protests outside schools and places of worship, and the digital safety bill introduced in June, which targets online harms. A new legal duty to act responsibly, which would require internet platforms to publish digital safety plans, provide greater transparency on their efforts to counter harms, and occasionally remove content, serves as the foundation for fighting back against the spread online of illegal content such as non-consensual distribution of intimate images, cyberbullying, terrorist content, and content that incites violence or hatred.
These are worthwhile measures. But for those concerned with antisemitism, Islamophobia, or other forms of hate, my Globe and Mail op-ed notes that stricter rules against illegal content are basic table stakes. The bigger challenge is the far larger category of content best described as “awful but lawful”: the tropes, conspiracy theories, and coded dehumanization that cause serious harm but remain constitutionally protected expression. A law mandating this material’s removal would invite an immediate Charter challenge. Instead, we need to figure out how to address harms without overstepping constitutional safeguards for freedom of expression.
Why the Government’s Plan for a Social Media Ban in Bill C-34 Is Unconstitutional
he debate over the government’s proposed social media ban for under 16s has raised several difficult questions, including doubts about whether it will work, which services it will cover, and what risks to privacy mandating age verification could create. But beyond the operational questions is a more fundamental one: is the ban constitutional? Bill C-34 contains some signals that the government knows there are serious constitutional vulnerabilities, given the obvious implications for freedom of expression that come from blocking an entire cohort of Canadians from accessing information and expressing themselves on social media. The bill contains several provisions that are seemingly designed to act as safeguards that could be used to argue that the ban is proportionate. These include guidance on age verification technologies to address privacy concerns, promises that the verification obligation does not require measures that “unreasonably or disproportionately” limit expression, a requirement that the new Digital Safety Commission consider freedom of expression, equality, and privacy when it establishes regulations and guidelines, and the ability for services to seek a ban exemption if they can demonstrate adequate safeguards for children.
Even with these measures, the ban might still be found to be unconstitutional. But if you think they provide a plausible argument that the ban can be justified (as Emily Laidlaw argues here), the problem is that none will be operational when the ban takes effect. In other words, there is a major disconnect between the law the government says it is establishing and the one it plans to implement. If the safeguards are not implemented and millions of Canadians are required to verify their age to express themselves on social media, I believe the ban is likely to face an immediate court challenge and that a court will rule it violates the Charter of Rights and Freedoms.
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