The question of how to regulate large online platforms, a matter of fierce worldwide debate since the 2018 Facebook-Cambridge Analytica scandal, has exploded in Canada over Bill C-10, An Act to Reform the Broadcasting Act. This bill, now in its second reading before the Standing Committee on Canadian Heritage, represents Canada’s first attempt to regulate comprehensively the activities of online content platforms. The government plans to follow it with legislation dealing with harmful and illegal activities on these platforms.
Canada is a latecomer to the platform-regulation game. Countries and regions such as the United Kingdom, Australia, the European Union and Germany have already either implemented or are currently debating legislation to address the novel challenges that platforms present. Even the United States, birthplace of the internet and ground zero for minimal-regulation digital libertarianism, is embracing the need for platform regulation.
Despite Canada being a laggard, there is little in the Bill C-10 debate to suggest that either the government or many of its critics have taken many lessons from other countries’ experiences. The Liberal government has failed to provide clear explanations for the policies of Bill C-10. Many critics, meanwhile, have turned a regulatory proposal that seems to be mainly focused on getting foreign content platforms to pay to support Canadian cultural industries and to promote Canadian content into an existential battle over the future of free speech and the “free and open internet” in Canada.
Whatever the failings of the actual bill — and there’s definitely reason to think that it has its fair share of problems — this type of rhetoric only serves to muddy the water. It conflates specific criticisms with a debate over principles. It also has the effect of shutting down honest debate. After all, you’re not against free speech and the free and open internet … are you?
In contrast to other countries that are focused on how to regulate platforms, this type of rhetoric suggests that we’re still trapped in a debate over whether we should regulate them.
There are three fundamental points that can help Canadians assess both the government’s proposals and critics’ reactions, without falling prey to unhelpful black-and-white sloganeering.
The first point involves understanding the actual choice before us. The choice we face when considering platform regulation isn’t whether or not speech should be regulated; it’s who should be responsible for these regulations — platforms or governments —and whether these rules reflect Canadians’ values and perceived interests.
There is no such thing as a neutral platform. Every platform makes explicit decisions about how to order its users’ content, including decisions related to “discoverability” — how to order and display the content hosted on their website. Platforms also already make decisions about what legal content should be kept off their platform, for various reasons, including concerns that it might cause harm to their users — a recent example is COVID-related mis/disinformation, which, while it poses a health risk, is not explicitly illegal. These decisions are made according to their own internal and often vague, arbitrary and ad hoc determinations of what is acceptable to them.
These choices are shaped by the platforms’ commercial interests — which are focused on a global market — and their own ideological biases — which, in the case of the tech giants, largely reflect their libertarian Silicon Valley roots that emphasize US-style free speech (including a relative indifference to hate speech); minimal privacy; and free cross-border data flows.
Platforms’ non-neutrality and their particular commercial interests create a couple of problems. One is that the unaccountable nature of platforms’ rulemaking in the absence of government oversight with respect to legal but harmful content goes against the human-rights-based principle of the right to have a say in rules that affect you. Another is that the choices taken by these companies, made in their own self-interest, are not necessarily in the self-interest of Canadians, as determined through our elected representative governments.
To complicate things even further, the choice isn’t cleanly between government, on the one hand, and platforms, on the other, when it comes to setting the rules. Even in the absence of a regulatory framework, governments often pressure platforms to change their rules through informal “secret handshake agreements,” in ways that are completely unaccountable to the public. This type of situation, as we have noted elsewhere, is the worst of all possible regulatory worlds. It’s also the most likely outcome should the idea of government regulation be discredited.
The second fundamental point is that Canadians must be skeptical of arguments framed as defending moral absolutes, such as “free speech” and the “free and open internet.” These seemingly unobjectionable phrases come loaded with a whole set of assumptions and ideologies that don’t always stand up to scrutiny. Criticizing government regulation of social media platforms as an assault on free speech, for example, ignores the reality that speech on these platforms is already regulated, by companies. It pretends that the choice is between no regulation and government regulation, rather than between private corporate regulation and democratic oversight.
Similarly, appeals to the “free and open internet” when applied to platforms confuse the network of the internet with the activities of the US monopolies that have come to dominate the commercial layer. As any first-year economics student could tell you, there’s nothing exactly “free and open” about a monopoly.
The third fundamental is that Canadians must demand that their government put together a coherent package of platform-governance policies and explain these clearly to the public — something the federal government has not yet done.
Countries such as Australia and the United Kingdom have spent years on widely publicized public consultations, reports and white papers leading to legislation. The upside for them in undertaking this intensive work has been that the resulting debates have been much more focused and productive.
The Canadian government needs to engage in extensive consultations if it wants to get platform regulation right. As we have written previously, the process surrounding Brazil’s Marco Civil da Internet (Internet Bill of Rights) legislation provides a useful template, which includes inviting comments on an open proposal, followed by a response to this proposal and, finally, legislation. The UK process in developing the Draft Online Safety Bill has followed a similar model.
All this is not to say that every government proposal is a good idea; each must be judged on its merits. But, at the very least, the government needs to explain clearly why it is proposing specific legislation and how it expects it to work. Merely presenting legislation and asking Canadians to “trust us” is not likely to lead to good laws. What’s worse, it jeopardizes the very legitimacy of the idea that Canadians have the right to set the platform rules under which we all live.
