A Balancing Act: freedom of expression and protection from harmful content

by Charlotte Ridsdale

I started my internship with the Centre for Law and Democracy remotely, living the work-from-home life in Montreal. This was harder than I initially anticipated – relying solely on self-motivation to complete my independent tasks alone in my apartment was challenging! I was grateful for friends to co-work with at Thomson house and café’s. I was also grateful to be able to drive up to Halifax to complete the second half of my internship at the end of June.

A change of scenery: lobster traps near Peggy’s Cove.

CLD is often commissioned by civil society groups to conduct legal research for various educational materials they produce. My first research tasks were for a project with Media Defence, an organization that provides legal help to journalists and independent media globally. CLD was adapting some training materials for digital rights through African national and regional human rights courts with examples from South and Southeast Asia. It was very interesting to examine the ways in which various Asian countries address digital rights, journalistic freedom and defamation on new media platforms. I enjoyed compiling quotes on the importance of freedom of expression and the media.

This one aptly describes some of CLD’s motivations behind their work on media freedom and right to information;

The media, be it electronic or print media, is  generally called the fourth pillar of democracy. The media, in all its forms, whether electronic or print, discharges a very onerous duty of keeping the people knowledgeable and informed. The impact of media is far-reaching as it reaches not only the people physically but also influences them mentally. It creates opinions, broadcasts different points of view, brings to the fore wrongs and lapses of the Government and all other governing bodies and is an important tool in restraining corruption and other ill-effects of society. The media ensures that the individual actively participates in the decision-making process. The right to information is fundamental in encouraging the individual to be a part of the governing process.”

From Sanjoy Narayan, Editor-in-Chief, Hindustan Times and Others v. High Court of Allahabad 2011 [para 5]

One of the best parts about interning with CLD is the variety of issues that I get to think about. Beyond media freedom, I’ve also been working away at a report on digital regulation around the world. I’m comparing the way democracies have chosen to regulate online platforms to mitigate the negative impacts of disinformation, hate speech and other harmful content. Different countries have decided to approach these issues from different angles. The USA’s s.230 provides “good Samaritan” protections from liability for online platforms (note the exceptions to these protections in the 2018 FOSTA-SESTA bills to curb online sex work) which contrasts the sweeping regulatory mechanisms imposed by the EU’s Digital Services Act.

Canada and Australia fall somewhere in between, with the proposed approach to address online harms in Canada and Australia’s Online Safety Act. Australia’s laws were quickly enacted in response to the Christchurch mass shooting of 2019, which was live-streamed on Facebook. Without getting too deep into the weeds, the law contains provisions requiring online platforms to remove violent and offensive content within 24 hours of being notified, and harsh financial penalties for failing to remove certain content.

Although I believe that online platforms have a responsibility to protect their users from hateful, violent and otherwise harmful content, state action like the Australian bill may create issues of over-censoring. It makes me question whether states and big tech companies should be in a position to decide what kinds of content individuals are able to access. For example, the Australian law’s classification scheme may require online platforms to remove sex workers’ profiles from their sites which blocks access to essential tools allowing them to work safely.

Shouldn’t adults be able to choose what kinds of online content they are exposed to? Why are states in a position to decide? Perhaps these are unintended consequences of well-meaning and even necessary government regulation to mitigate hate and violence. However, all of the laws that I’ve looked at are blurring the boundaries of free speech, resulting in various degrees of alarm from civil society. It is, indeed, a difficult balancing act.

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