How Online Harms Regulation Empower Speech and Engagement

Résumé analytique

One of the most common criticisms of the Government of Canada's planned online harms legislation is that such regulation will have a profound chilling effect on people's rights and freedoms, particularly online speech, sharing, and engagement. Social media platforms have been highly successful in weaponizing such claims to advance an anti-regulatory agenda, framing law and regulation as a threat to users and innovation. Chilling effects are real, but in the regulatory context the evidence is far less clear. Recent empirical studies demonstrate the contrary: regulations enacted to address online harms can actually have an empowering effect, encouraging more speech and engagement online, especially by women and minorities, while any chill is negligible.

This permissive environment is anchored by Section 230 of the United States' Communications Decency Act, which grants platforms near-blanket immunity for user-generated content, and whose broad scope traces to the 1997 Zeran v America Online decision built on chilling-effect concerns. Because most powerful platforms are American, this approach has shaped Canada, which has no general intermediary liability statute. Yet online harassment, bullying, and abuse themselves have a totalizing chilling effect that silences victims, disproportionately women and minorities.

In a 2019 article, Citron and Penney studied nearly 1,300 US-based adult internet users and found the cyberharassment law they tested would have a negligible chilling effect; most participants said it would have no impact or make them more likely to speak and engage online, with an empowering effect particularly for women. Explained through expressive law theory, well-tailored and clearly communicated online harms legislation can support a wider diversity of speech, especially for those most often silenced by abuse.