Platform Responsibility and Regulation in Canada: Considerations on Transparency, Legislative Clarity, and Design
Sonja Solomun, Maryna Polataiko, Helen A. Hayes
February 18, 2021
Ahead of Canada’s speculative take-down legislation, Centre for Media, Technology and Democracy Research Director Sonja Solomun, Policy Fellow Helen Hayes, and former Legal Fellow Maryna Polataiko, published an article in the Harvard Journal of Law & Technology Digest outlining legislative considerations on transparency, clarity, and design.
Without weighing in on the merits of take-down legislation, the article highlights the importance of transparency reporting and detailed legislation that clearly defines categories of speech and establishes both notice and counter-notice requirements.
Following a federal mandate from Prime Minister Justin Trudeau to “take action on combating hate speech and online hate and harassment” by creating “new regulations for social media platforms,” the Ministers of Canadian Heritage, Public Safety and Emergency Preparedness, and Innovation, Science, and Industry, have set forth to develop a uniquely “Canadian approach” to online speech regulation.
This prime-ministerial call was echoed by the Centre’s own Canadian Commission on Democratic Expression (CCDE), whose recent report outlines a comprehensive framework for protecting democratic expression online. The report’s overall considerations, including a call for robust transparency protocols within the forthcoming Canadian legislation, fall in line with suggestions from policymakers and civil society actors for increased platform regulation in Canada. The Commission’s recommendations likewise join the growing body of scholarship advocating for the development and implementation of moderation standards councils or social media councils that may help democratize content regulation processes.
Published just days after the Heritage Minister’s official announcement of the plan to table legislation addressing harmful online speech, the article highlights the necessity of protecting online users from unlawful speech and oppressive take-downs, while likewise recognizing the importance of regulation that “uphold[s] and protect[s] the inherently democratic ideals of online spaces.” It also draws on existing international legislation, including the German Network Enforcement Act (NetzDG), the EU Digital Markets Act and Digital Services Act, and the U.S. Digital Millennium Copyright Act, to contextualize its considerations.
Transparency in Content Moderation
Platform companies hold increasing levels of power in determining the contours of public discourse and online expression. Drawing on both the Santa Clara Principles and the Manila Principles, the article highlights the importance of robust - and mandatory - transparency reporting, especially in conjunction with take-down legislation. This consideration stems from the article’s recognition of the increasing concerns over excessive and arbitrary content removal and censorship of online speech.
Drafting and Legislative Design
Mounting evidence suggests that Canada’s incoming legislation will include some form of notice-and-takedown regime. Given the complexity of takedown legislation, the article recommends that Canada’s bill be clear on two fronts: 1) in its definitions of unlawful speech that must be removed, and 2) in its notice and counter-notice requirements. These specifications, they claim, help prevent over-removal by “providing platforms with guidance on how to respond to removal requests” and “restraining abuses of the take-down system.”
In advocating for the establishment of counter-notice mechanisms, the article presents an important assessment of the central role that due process, transparency, and freedom of expression must play in the platform governance agenda more broadly.
Read the full article online or download the PDF below.
