Consistent with legislative initiatives in Australia, the UK, Netherlands, and other countries, the Government of Canada has been working mightily to enact privacy-invasive encryption-busting legislation it says is necessary to protect against legal but “hurtful” online content.
Despite sweeping criticism of Bill C-10 and its companion bill to address harmful content online, Bill C-36, the recently re-elected minority government (elected by a mere 20% of registered electors) has vowed to pass a triad of laws — within 100 days of the Cabinet being sworn in — to restrict as-yet undefined ‘hurtful’ online content and target content in five targeted categories: terrorist content, content that incites violence, hate speech, intimate images shared non-consensually, and child sexual exploitation content.
In practical terms, that means platforms would have to inspect all content — including images posted and remarks made by anyone, domestic or foreign, including Canadian citizens, residents, refugees, and foreign students; confidential and privileged communications between lawyers and clients, and between physicians, psychiatrists and other healthcare professionals and their patients; journalists, academics and anyone else — to judge if it crosses an as-yet undefined ‘hurtful’ threshold or falls into any of the five targeted categories.
Accomplishing that would require encryption be broken; and it would undermine any semblance of privacy.
But there might be a wrinkle in the government’s plan.
Over 9,000 members of the public provided individual comments to the government’s harmful content consultation held during the summer election campaign. Given the government’s refusal to reveal anything about the response, civil society organizations including the PACC issued a joint letter urging the government to be transparent about the consultation.
And now the Supreme Court of Canada has ruled that, under the Quebec Charter, speech — even controversial or repugnant speech — has social value and should be protected from unjustified state intrusion, and that there is no right not to be offended. Whether or not free speech is permitted only Quebec has yet to be seen; but even if it is, content from and to Quebec will be caught in the federal government’s online inspection web.
