Public Consultations as Secret Affairs

Consultation with the people about government legislation, said to be one of the instruments for giving rise to government with the consent of the people, is in deep crisis. One of its features is the increasing privatization of consultations, with members of parliament no longer carrying any responsibility for their purported role as the conveyors of popular opinion to the state.

Public consultations are typically conducted by private companies and corporations contracted by government and they never enter the public realm where people gather to speak in their own name and hear each other's views.

The Liberal consultations on "online harms" have unfolded as a classic case of the privatized nature of public consultations. In effect, public consultation has become a redundancy, where the aims of the government to serve the private interests which have taken over the state conflict with maintaining even the appearance of the public interest being served.

After conducting just such public consultations in the summer and early fall of 2021 on its plans to regulate "online harms," the Liberals took the unprecedented measure of refusing to make public the briefs and submissions it had received.

In October 2021, Michael Geist, a law professor at the University of Ottawa and Canada Research Chair in Internet and E-commerce Law started a project to compile the withheld briefs by contacting those who had made submissions. He also filed an access to information request to obtain all the documents pertinent to the consultation.

At that time, he wrote: "Keeping the results of the consultation secret is incredibly damaging, raising further questions about whether the government plans to incorporate the feedback or simply march ahead with an extreme, deeply flawed proposal."

The government's attempt to summarize the consultations as "what we heard," Geist said, "left little doubt that the government's plans were widely criticized and required a policy reset."

In April of this year, Geist's access to information request resulted in the release of a 1,162 page file. Still, some of the briefs may have been excluded, according to Geist.

Geist summarized "several key takeaways" from his study of the submissions that were released.

"First, the government's determination to keep the consultations submissions secret until compelled to disclose them by law eviscerates its claims to support open, transparent government. There is simply no good reason to use secrecy as the default for a government consultation. While officials claimed that submissions 'may contain confidential business information,' the actual results demonstrate the argument had little merit. Indeed, the government could have used openness as a default and redacted any confidential information as needed. A government that supports openness should not be forced to disclose information from a public consultation only under threat of failing to comply with its own access to information laws.

"Second, the participation of the Internet platforms was more extensive than previously disclosed. While Google released its submission, there were also submissions from the Business Software Alliance, Microsoft, Pinterest, TikTok, and Twitter. Further, in addition to TekSavvy and Tucows, the large Canadian telecom companies (Bell, Rogers, Telus, Cogeco, Quebecor and Shaw) provided a joint submission. These submissions contain important data that should be publicly available, not hidden by the government. For example, TikTok reported that in the first quarter of 2021, content that violated its community guidelines accounted for less than one per cent of all video and that 91.3 per cent of the videos it removed were identified and removed even before a user reported them. Other notable submissions included the CBC, which argued for a special recognition of threats to journalists as content that incites violence and hate speech, and the Ukrainian Canadian Congress, which called months ago for the removal of Russia Today from Canadian broadcast systems.

"Third, the criticism of the government's plans were even more widespread than previously revealed. Indeed, reviewing the submissions uncovers very few supportive comments of the government's online harms from either organizations or the hundreds of individual submissions. For example, the big Canadian telecom companies warned that the proposal could disincentive investments in 5G networks and opposed disclosing basic subscriber information without judicial authorization. Their submission -- along with others in the sector -- reinforces how inexplicable and damaging it is that Innovation, Science and Industry Minister François-Philippe Champagne has seemingly abandoned digital and Internet policy. Vesting responsibility in Canadian Heritage (what does Canadian Heritage have to do with online harms anyway) has been disastrous for the development of balanced, effective digital policies.

"The most notable submission came from Twitter, which warned that the proactive monitoring of content envisioned by the government: 'sacrifices freedom of expression to the creation of a government-run system of surveillance of anyone who uses Twitter. Even the most basic procedural fairness requirements you might expect from a government-run system such as notice or warning are absent from this proposal. The requirement to 'share' information at the request of Crown is also deeply troubling.'"

As the defenders of liberal democracy are wont to do, Twitter used the disinforming stereotypes of authoritarian governance to condemn the Liberal government's plan.

Geist quotes the Twitter submission which stated:

"The proposal by the government of Canada to allow the Digital Safety Commissioner to block websites is drastic. People around the world have been blocked from accessing Twitter and other services in a similar manner as the one proposed by Canada by multiple authoritarian governments (China, north Korea, and Iran for example) under the false guise of 'online safety' impeding peoples' rights to access information online.

"Further, there are no checks or balances on the commissioner's authority, such as the requirement of judicial authorization or warnings to service providers. The government should be extremely mindful of setting such a precedent -- if Canada wants to be seen as a champion of human rights, a leader in innovation and in net neutrality globally, it must also set the highest standards of clarity, transparency and due process in its own legislation."

In summarizing other submissions, Geist reports that "In fact, even groups that might have been expected to support the proposal were critical. For example:

"- the National Association of Friendship Centres warned that changes to the CSIS Act related to obtaining transmission data or basic subscriber information posed 'a legitimate risk of governing bodies weaponizing this legislation to identify protests as anti-government, especially when Indigenous people across Turtle Island articulate their inherent rights and sovereignty.

"- the Canadian Centre for Child Protection, while supportive of some elements, warned against the plan to offload funding regulation to the Internet providers: 'we strongly urge the government to reconsider the optics of directly linking the funding of these offices to the very entities being regulated by it.'

"- the Safe Harbour Outreach Project feared 'the proposed Digital Harms framework has grave potential to hurt sex workers, 2SLGBTQ+ folks, BIPOC [Black, Indigenous, People of Colour] communities, and other marginalized populations.'

"- the Centre for Israel and Jewish Affairs noted 'a one-size-fits-all model is not appropriate. While online hate may be detestable, it may not be comparable to the imminent risk or serious harm caused by a potentially pending terrorist attack. Put simply, with respect to reporting to police, the threat of bombing a building is not the same as espousing hatred.'

"- the National Council of Canadian Muslims stated 'simply put, the legislation as it stands now could inadvertently result in one of the most significant assaults on marginalized and racialized communities in years. NCCM does not participate in hyperbole; but this is gravely, dangerously concerning.'"

Geist concludes, "While Canadian Heritage Minister Pablo Rodriguez has agreed to re-assess the online harms policy with a new expert panel and initiated a re-branding as 'online safety,' the entire consultation process is an absolute embarrassment to the government.

"The secrecy associated with the consultation and the associated submissions was a repudiation of the government's professed commitment to openness and transparency with only fear of legal violations of access to information laws compelling disclosure of information that should have been publicly available by default months ago.

"Yet despite these disqualifying actions, there are seemingly no consequences. The same department is pushing ahead with anti-Internet policies in Bill C-11 (regulating user generated content) and C-18 (mandated payments for facilitating access to news online), backing copyright term extension, and gearing up for another run at online harms with an expert panel that presumably hasn't even been given access to these submissions. It is time for the government to take responsibility for the online harms debacle and take a far closer look at the mess it is creating on Internet policy by re-assessing its approach and leadership on the issues."

The submissions made by the following to the consultations on 'online harms' are now available:

Access Now; Alliance for Safe Online Pharmacies Canada; B'nai Brith Canada; BC Coalition of Experiential Communities; Business Software Alliance; Canadian Association of Research Libraries; Canadian Association of University Teachers (CAUT); Canadian Bar Association; Canadian Centre for Child Protection; Canadian Civil Liberties Association; Canadian Coalition for the Rights of Children; Canadian Internet Policy and Public Interest Clinic (CIPPIC); Canadian Telecommunications Service Providers (Bell, Rogers, Telus, Shaw, Cogeco, Quebecor); Canadians Concerned About Violence in Entertainment; CBC/Radio-Canada; Centre for Gender & Sexual Health Equity; Centre for Israel and Jewish Affairs; Centre for Law and Democracy; Centre for Media, Technology and Democracy; Chinese Canadian Council for Social Justice; Citizen Lab (Cynthia Khoo, Lex Gill, Christopher Parsons); Cybersecure Policy Exchange; Defend Dignity; Federation of Black Canadians; Free Speech Coalition; Global Network Initiative; Global Partners Digital; Google Canada; Independent Press Gallery of Canada; International Civil Liberties Monitoring Group; Internet Archive Canada; Internet Society Canada Chapter; Joint Submission from Civil Liberties and Anti-Racism Groups; LEAF -- Women's Legal Education and Action Fund; Living in Community Society; Microsoft; National Association of Friendship Centres; National Council of Canadian Muslims; News Media Canada; Office of the Federal Ombudsman for Victims of Crime; OpenMedia; Pivot Legal Society; Public Interest Advocacy Centre; Ranking Digital Rights; Rassemblement  pour la laïcité; Safe Harbour Outreach Project; Sex Workers of Winnipeg Action Coalition; TechNation; TekSavvy; Tucows; Twitter; Ukrainian Canadian Congress.

Individual experts who made submissions include: Blayne Haggart and Natasha Tusikov; Darryl Carmichael and Emily Laidlaw; Drew Wilson; Fenwick McKelvey; Michael Geist; and Valerie Webber and Maggie MacDonald.

The submissions included in the access to information package can be obtained at no cost by requesting file A-2021-00174 from the Department of Canadian Heritage.

Other submissions previously obtained can be found here

This article was published in
Volume 52 Number 7 - July 17, 2022

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