PIAC comments on the Government’s proposed approach to address harmful content online

PIAC tells government it is inappropriate to use “site-blocking” to restrict access to “harmful content online”

In September, PIAC commented on the Government’s proposed approach to address harmful content online. PIAC has many concerns about the proposed framework, but for now we limited our comments to the possible impact of the Proposal’s site-blocking regime on telecommunications consumers.

The Proposed Framework

The proposed framework would require “online communication service providers” (OCSPs), such as Facebook, Twitter, Youtube, TikTok, and Pornhub, to do whatever is reasonable and within their power, including using algorithmic automated systems, to monitor for “terrorist content; content that incites violence; hate speech; non-consensual sharing of intimate images; and child sexual exploitation content” and make such content inaccessible in Canada within 24 hours of this content being flagged.

The proposal would also, among other things, impose mandatory reporting to law enforcement and CSIS on OCSPs; extend OCSPs’ data retention periods; and expand the Mandatory Reporting Act to require internet service providers to provide basic subscriber information to law enforcement.

Three new regulators – the Digital Safety Commissioner of Canada, the Digital Recourse Council of Canada, and an Advisory Board – would be created to oversee and enforce these new regulatory requirements. The Commissioner would have the power to: 1) issue Administrative Monetary Penalties up to 10 million dollars or 3% of an entity’s gross global revenue, whichever is higher; 2) refer offences to prosecutors with fines of up to $25 million or 5% of an entity’s gross global revenue, whichever is higher; or 3) as an exceptional recourse, apply to the Federal Court to seek an order to require telecommunications service providers to implement a blocking or filtering mechanism to prevent access to all or part of a service in Canada that has repeatedly refused to remove child sexual exploitation and/or terrorist content. This last point is discussed in PIAC’s submission.

PIAC’s Position

PIAC believes it is generally inappropriate to use site-blocking to address the online harms identified in the Proposal because mandatory site-blocking: 1) is incompatible with Canada’s net neutrality framework rooted in ss. 36 and 27(2) of the Telecommunications Act, which must be interpreted in furtherance of s.7 objectives; and 2) could result in excessive infringement of Canadians’ rights to freedom of expression on the Internet. We acknowledge, however, as an exception to this position, that it may be permissible to expand the existing practice of ISPs voluntarily blocking access to non-Canadian websites that are hosting child pornography using Cleanfeed Canada.

While we are deeply opposed to the idea, if the Proposal is to create an avenue for site-blocking we suggest that the CRTC be the decision-maker to ensure that site-blocking does not undermine Canada’s telecommunications system nor impair Canadian’s rights to freedom of expression. If the government instead makes the Federal Court the site-blocking adjudicator, as is currently the case in copyright cases, we suggest that it provide explicit requirements that the court consider s. 36 and s. 27(2) rulings and jurisprudence and issue narrow orders that apply only to the conduct of the specific parties before them in order to safeguard the role of the CRTC and Canada’s telecommunications system.

Read our full submission here.

Michael Geist, Professor and Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, has compiled a list of publicly available submissions. We encourage those interested to review these submissions.