Government Censorship and Pandemic “Mis”Information

Canada can flatten the curve without flattening free speech.  Government censorship is hardly a public health tool for fighting a pandemic.  It’s a political tool, or at least an effort, however well meaning, to narrow the marketplace of ideas, when wielded by governments.  Information about COVID-19 – good and bad, proven and speculative, true, false and unverifiable – has been coming at us at warp speed over the last few weeks. Now there are reports that the federal government is considering a law aimed at criminalizing harmful pandemic misinformation. I have written elsewhere about the dangers of misinformation, particularly during a global health crisis, and recognize the real harm that can result if we are not savvy consumers of information. Still, I am deeply skeptical about the ability of the criminal law to tackle this problem in a way that doesn’t create a whole host of new ones.

Canada’s Criminal Code used to prohibit “spreading false news”; it was the offence used to prosecute infamous Holocaust-denier Ernst Zundel and the one that was ultimately struck down by the Supreme Court of Canada as violating the fundamental freedom of expression enshrined in the Canadian Charter of Rights and Freedoms. That was close to thirty years ago. Without a doubt, much has changed. The provision under which Zundel was prosecuted was originally enacted to deal with “slanderous statements against great nobles of the realm” to ensure political harmony. A majority of the Court found that the government couldn’t simply adopt a new purpose (e.g. to achieve racial harmony or address hate speech) when the law was challenged.  It also found that even if the latter purpose was accepted as a compelling and pressing one, the law as drafted was disproportionate –  its terms were simply too broad and vague to achieve the intended goal without also capturing a whole lot more. Moreover, the majority pointed out that separating “pure facts” from matters of opinion was far from a straight-forward exercise. The Zundel case also had counter-productive effects. By prosecuting Zundel, Canada perversely gave him a legal platform in which he could spew his denial garbage – a Canadian court would be hearing witnesses and asked to decide whether claims about the Holocaust were true.

Is there a way to draft a law to deal with dangerous COVID misinformation that escapes these faults of vagueness and overbreadth? It is hard to imagine one. Is there a way to categorize, through precise drafting, the whole realm of expression into neat binary baskets of fact and opinion, true and false? I don’t think the world is nearly that simple. Would Parliament really create a new offence to deal only with COVID misinformation or will it use the opportunity to capture misinformation in other areas where the harm may be equally serious? I think the second option is more likely.

My skepticism is not grounded in a general distrust for government, nor is it based on any blind allegiance to the principle of free expression in our democracy (although make no mistake – I think freedom of expression is vital).  My concern is that truth and knowledge are not static. When talking about a new virus, scientific knowledge is evolving every minute, and what today is true and obvious may tomorrow appear to be fraudulent and dangerous. The issue is complicated by the fact that what I “know” about the virus invariably stems from hearing what experts are saying and reading what experts are writing. And it is not always easy to decide what constitutes expertise. And even experts can disagree. To take an obvious example, the federal government has relied on climate scientists and economic experts in deciding that a carbon tax is the best way to deal with climate change. Some provinces disagree – and their policy positions are also informed by experts.

Governments have a vested interest in ensuring that expert opinion lines up with their policy choices and in sidelining voices – even those of experts – who disagree with their approach. There may be nothing nefarious about that, but I prefer to do my own research and make judgments about expertise based on criteria that are not tied up with the political fortunes of leaders of the day.

Is a criminal law on misinformation necessary? I would argue that we already have some strong legal tools in the toolbox to tackle harmful misinformation. If the concern is about people seeking to financially benefit by spreading misinformation we already have criminal laws against fraud. We also have measures to combat misleading advertising and labelling of products. We also specifically regulate how health products are advertised. Some of the most obvious and harmful COVID misinformation might be adequately addressed by these laws that have been on the books for years. Let’s give them a chance to work before we open the Pandora’s box of criminalizing “misinformation”.

Of course, if the government does make it a priority to pass this kind of legislation in one of its limited sittings, I will reserve judgment until I see the bill that is proposed. I don’t doubt that there are good intentions at play here; I understand the anxiety that many of us have about the dangers of misinformation – particularly in a context where people’s behaviour – premised on bad information – has the potential to put our health at risk. But it is hard not to feel even more anxious about a law that allows the government to be the ultimate arbiter of truth – and then empowers individual Crown prosecutors to criminally pursue those who deviate from it.

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.