The Diligent Platform and 'Lawful but Awful' Expression

Executive Summary

With an online safety bill expected from the Government of Canada, the central legal question is whether a risk management model can and should target "lawful but awful" expression — content such as mis- and disinformation, bullying, mob attacks, and hateful material that is generally lawful but harmful. Canada's approach is expected to follow the duty of care, due diligence models seen in the United Kingdom's Online Safety Bill and the European Union's Digital Services Act, which treat platform services as matters of product safety: companies must assess and continually monitor the systemic risks of their recommender systems, content moderation, advertising, and data practices, and are held accountable through mandatory transparency reporting and regulatory oversight.

The essay argues the product safety analogy has limits, because regulating discourse intersects with fundamental rights. Free expression protects unpopular, distasteful, and disturbing speech, but must be balanced against rights to privacy and equality, the Crown's fiduciary duties to Indigenous people, and the risk of unintended consequences — content moderation systems have been abused against marginalized groups. Laidlaw concludes there should be no obligation to remove lawful but awful expression, but design features like user empowerment tools, alternative news sources alongside flagged misinformation, and transparency obligations may be justifiable. Because a risk management model dictates process rather than outcomes, it is unlikely to trigger Charter scrutiny, though specific mandates — compelled amplification or mandatory warning labels — carry greater rights risks, especially in the US. The Government has good reason to start with a narrow list of illegal expression, leaving a vast penumbral space of harms to be debated over the next decade.