Michael Geist: Why the Liberals have become the most anti-internet government in Canadian history | Unpublished

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Unpublished Opinions

Michael Geist's picture
Ottawa, Ontario
About the author

Dr. Michael Geist is a law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law. He has obtained a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School.  Dr. Geist is a syndicated columnist on technology law issues with his regular column appearing in the Toronto Star, the Hill Times, and the Tyee.  Dr. Geist is the editor of several copyright books including The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2013, University of Ottawa Press), From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda (2010, Irwin Law) and In the Public Interest:  The Future of Canadian Copyright Law (2005, Irwin Law), the editor of several monthly technology law publications, and the author of a popular blog on Internet and intellectual property law issues.

Dr. Geist serves on many boards, including the CANARIE Board of Directors, the Canadian Legal Information Institute Board of Directors, the Canadian Internet Registration Authority, and the Electronic Frontier Foundation Advisory Board. He has received numerous awards for his work including the Kroeger Award for Policy Leadership and the Public Knowledge IP3 Award in 2010, the Les Fowlie Award for Intellectual Freedom from the Ontario Library Association in 2009, the Electronic Frontier Foundation’s Pioneer Award in 2008, Canarie’s IWAY Public Leadership Award for his contribution to the development of the Internet in Canada and he was named one of Canada’s Top 40 Under 40 in 2003.  In 2010, Managing Intellectual Property named him on the 50 most influential people on intellectual property in the world and Canadian Lawyer named him one of the 25 most influential lawyers in Canada in 2011, 2012 and 2013.

Click here to view Dr. Geist’s full CV.


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Michael Geist: Why the Liberals have become the most anti-internet government in Canadian history

April 17, 2021

The Liberals led by Prime Minister Justin Trudeau were first elected in 2015 on a platform that emphasized transparency, consultation, and innovation. The signals were everywhere: it released ministerial mandate letters to demonstrate transparency, renamed the Minister of Industry to the Minister of Innovation, Science and Economic Development to point to the importance of an innovative economy, and soon after the cabinet was sworn in, Canadians were awash in public consultations (I recall participating in an almost instant consult on the Trans Pacific Partnership). With promises of entrenching net neutrality, prioritizing innovation, focusing on privacy rather than surveillance, and supporting freedom of expression, the government left little doubt about its preferred policy approach.

As I watched Canadian Heritage Minister Steven Guilbeault yesterday close the Action Summit to Combat Online Hate, I was left with whiplash as I thought back to those early days. Today’s Liberal government is unrecognizable by comparison as it today stands the most anti-Internet government in Canadian history:

  • As it moves to create the Great Canadian Internet Firewall, net neutrality is out and mandated Internet blocking is in.
  • Freedom of expression and due process is out, quick takedowns without independent review and increased liability are in.
  • Innovation and new business models are out, CRTC regulation is in.
  • Privacy reform is out, Internet taxation is in.
  • Prioritizing consumer Internet access and affordability is out, reduced competition through mergers are in.
  • And perhaps most troublingly, consultation and transparency are out, secrecy is in.

This is not hyperbole. The Action Summit is a case in point. I was part of the planning committee and I am proud that the event produced two days of thoughtful discussion and debate, where both the importance and complexity of addressing online hate brought a myriad of perspectives, including from the major Internet platforms. There was none of that nuance in Guilbeault’s words, who spoke of the evil associated with the “web behemoths” and promised that his legislation would target content and Internet sites and services anywhere in the world provided it was accessible to Canadians. The obvious implications – much discussed in Internet circles in Ottawa – is that the government plans to introduce mandated content blocking to keep such content out of Canada as a so-called “last resort”. When combined with a copyright “consultation” launched this week that also raises Internet blocking, Guilbeault’s vision is to require Internet providers to install blocking capabilities, create new regulators and content adjudicators to issue blocking orders, dispense with net neutrality, and build a Canadian Internet firewall.

If that wasn’t enough, his forthcoming bill will also mandate content removals within 24 hours with significant penalties for failure to do so. The approach trades due process for speed, effectively reducing independent oversight and incentivizing content removal by Internet platforms. Just about everyone thinks this is a bad idea, but Guilbeault insists that “it is in the mandate letter.” In other words, consultations don’t matter, expertise doesn’t matter, the experience elsewhere doesn’t matter. Instead, a mandate letter trumps all. If this occurred under Stephen Harper’s watch, the criticism would be unrelenting.

In fact, one of the reasons that the government finds itself committed to dangerous policy is that it did not conduct a public consultation on its forthcoming online harms bill. Guilbeault was forced yesterday to admit that the public has not been consulted, which he tried to justify by claiming that it could participate in the committee review or in the development of implementation guidelines once the bill becomes law. This alone should be disqualifying as no government should introduce censorship legislation that mandates website blocking, eradicates net neutrality, harms freedom of expression, and dispenses with due process without having ever consulted Canadians on the issue.

Further, this is the same minister whose Bill C-10 (the Internet regulation broadcast bill) by-passed the usual House of Commons debate, eliminates committee review on government policy directions, and will be the subject of a clause-by-clause review following an embarrassingly superficial series of hearings. It is also the same minister who has launched two copyright consultations with short timelines that ignore the most extensive review and consultation on copyright in a decade. And it is a minister who pays for Facebook advertising, but threatens to mandate payments for news links, yet again without a public consultation. In fact, this week his department wrote to academics (myself included) with a questionnaire on the issue that granted only two weeks to respond. It is consultation theatre, not consultation.

Guilbeault may be government’s the leading anti-Internet voice, but he is hardly alone. As I pointed out last month, Innovation, Science and Industry Minister Francois-Philippe Champagne has been missing-in-action on digital files, most notably Bill C-11, the privacy bill that has languished since its introduction last year. Champagne quickly responded that the bill was a government priority, but six weeks later, nothing has happened and it is clear that privacy reform is going nowhere.

The same minister has abandoned longstanding department copyright policy priorities, ignoring the Standing Committee on Industry’s authoritative report on copyright by promoting a consultation on website blocking and doing nothing on its actual recommendations or to address the concerns of his stakeholders. His silence on issues that have enormous implications for the innovation economy – site blocking, digital taxes, link payments – speaks volumes. So too does his disappearing act on consumer wireless affordability, offering little in the way of a reassurance that the issue matters anymore to the government. His cabinet colleague plans to undermine net neutrality and his department that has responsibility for telecom issues says nothing. It has only been a few months, but it is hard to think of a recent Industry/ISED Minister that has been less effective or engaged on digital policy.

Indeed, that approach permeates the entire cabinet and the Prime Minister. Where is International Trade Minister Mary Ng on tax and digital policies that are likely to result in billions in tariff retaliation and may violate the USMCA?  Where is Justice Minister David Lametti on the constitutionality of Guilbeault’s site blocking plans? Where is Digital Government Minister Joyce Murray where her cabinet colleague says AI is one of our greatest threats?  Where is Minister Maryam Monsef as many Canadians in rural and remote areas still lack affordable Internet access?  And where is Prime Minister Justin Trudeau, who was happy to sub-tweet then-U.S. President Donald Trump on net neutrality but is now set to oversee censorship legislation that includes mandated content blocking?

All remain silent as the government pursues policies and non-consultative processes that would have been unimaginable when it took office. It may have started with emphasizing innovation, but discouragingly today it is more accurate to lament that it has become the most anti-Internet government in Canadian history.

The post Why the Liberals Have Become the Most Anti-Internet Government in Canadian History appeared first on Michael Geist.