Freedom of Expression

Can a Politician Block you on Twitter?

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

Can an elected representative block a critical constituent on Twitter? What about suing another representative for defamation? How much control do politicians have over their online reputation and how much should they?

With a federal election on the horizon, voters will no doubt be relying on a great deal of online content and social media chatter to help them make decisions about candidates. In the buildup to October 2019, those who hope to get elected will be especially careful about their online presence. Candidates will not only ensure that they don’t post anything that could lose them votes but also take care that others aren’t posting items that may damage their chances. Online reputation management is big business – not just for those selling products and services. Reputation is a currency in the political sphere. There is a special incentive for politicians to make sure that the online record casts them in the best possible light, even if that means silencing critical or otherwise inconvenient voices.

If you are not already an elected representative, there is likely to be less online content about you, and you may even have a chance to delete some of those embarrassing tweets or Instagram posts before anyone thinks to take a screenshot for posterity. However, in my view, elected officials have special constitutional duties and responsibilities to their constituents – and this means that they may need to have thicker skin when it comes to online criticism. The question for those already in the public eye is: when does standing up for yourself start to look like heavy-handed silencing of your critics?

Recently, CCLA learned of a woman who has been blocked by her federal Member of Parliament on Twitter. MP John Brassard (Barrie-Innisfil, Ontario) has decided that the critiques that this constituent has voiced about him on Twitter merit retaliation. She no longer has the privilege of getting notifications about his tweets or regular updates about what he is doing in Parliament on behalf of his community. When she asked his staff why she was blocked, one response was that she was “a woman with very strong opinions”. They also told her that she “threatened to harass” the MP – this in response to her promise to be at campaign events and try to correct any misinformation she felt he was spreading about climate change. That is not harassment; that is political engagement, and candidates should welcome the opportunity to engage with an informed citizenry. These responses suggest a fundamental misunderstanding of how the political process works.

Brassard has also recently launched a $100,000 defamation suit and lodged a complaint with Barrie’s Integrity Commissioner regarding a Facebook post made by local Barrie city councillor Keenan Aylwin. Posted just days after the Christchurch massacres, Aylwin criticized Brassard and another Barrie-area MP, Alex Nuttall, for failing to speak out on what Aylwin characterized as Andrew Scheer’s “appearance on the same stage as a neo-Nazi sympathizer, Faith Goldy, at a United We Roll Rally.” Aylwin argues that the MPs are “playing footsies with white supremacists”. Brassard says the statement is false and defamatory, and that it violated the Code of Conduct for Barrie councillors. The Integrity Commissioner appears to agree with Brassard and Aylwin may face consequences from the council when they bring the matter before them.

In my view, these actions show a failure to appreciate the importance of free expression in Canada, particularly when it comes to political speech. I don’t believe that anyone – elected or not – has to subject themselves to repeated harassment in the real world or online. However, that is not what is happening in either of these two instances. An elected representative is going to face criticism, harsh, excessive, or worse: reasonable and eloquent. If the narrative is misleading or just plain wrong, an elected representative has avenues to correct the record. As we get closer to October 2019, Canadians should expect candidates to contribute to our political debate, not to stifle it. Silencing critics is not the answer.

In the United States, courts have already ruled that a public official who blocks a constituent from their Twitter feed has violated the First Amendment’s protection of freedom of speech. I think a Canadian court might well find a Charter violation in similar circumstances since these online spaces have become our new public squares. If these social media tools are used to connect representatives with their constituents, they have to take the good with the bad. Blocking a constituent and suing the city councillor sends a clear message to those who wish to engage with Brassard on matters of policy: tread lightly.

This kind of chill is terrible for our democracy.

Freedom of Expression

Breaking down the “Digital Charter” – Part 1

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

In the wake of the live streaming of the massacres in Christchurch, New Zealand, Canada has joined many other nations in answering the “Christchurch call” and vowing to eliminate violent extremist and terrorist content online. But what does the proposed “Digital Charter” mean for people in Canada and our civil liberties? At the moment, the Charter appears to be entirely aspirational: we have a list of principles the government has announced but have no sense of whether, how or when those principles will be embedded in law, policy or practice.

Of the 10 Charter principles, at least one – if implemented into an enforceable law – will have a direct and significant impact on the content that Canadians can create, disseminate and access online. In other words, a very real impact on our freedom of expression which, it’s worth remembering, is protected in our Canadian Charter of Rights and Freedoms. That is a real – not aspirational – Charter with the full force of the Constitution, Canada’s supreme law. The government has said, “Canadians can expect that digital platforms will not foster or disseminate hate, violent extremism or criminal content.” On its own, a principle which sets out an “expectation” for what privately owned platforms will do has little weight, but one of the other principles promises “clear and meaningful penalties” for violations of law and regulations to support the principles.

This principle has me worried. How do we deal with hate and extremism without capturing the merely unpopular or offensive? Don’t get me wrong: I don’t spend time on neo-Nazi sites or seek out graphic acts of violence on video streaming platforms. I don’t like this kind of content and actively avoid it. But I worry about broad rules which “outlaw” some types of content and what this means for a democracy where free expression is supposed to be a fundamental freedom. Regulating expression is notoriously tricky. The sheer volume of content online and the Internet’s fundamentally global character only add to the challenges.

I need to know more about the kind of “violent extremism” from which Canadians can expect to be shielded. It is appalling that the massacre in Christchurch was live streamed using a social media platform, but is there a way to address that problem without also censoring other content which might have significant social value? Think of repressed minorities who suffer violence at the hands of the state. Live streaming those acts of violence might bring the world’s attention to an important issue. Consider also the impact of live streaming videos which have captured horrific acts of police brutality. Video can be an important means of holding the powerful to account. Does the government get to decide who can stream content live? Does Facebook? Should we let an algorithm determine who can be trusted to stream?

What does the government mean when it talks about “fostering or disseminating hate”. The legal definition of “hate speech” is quite narrow, and for good reason. But when most people use the term, it’s not that narrow definition they have in mind, or expect to be enforced. Our Criminal Code prohibition on hate speech (s. 319) has been held to be constitutional by the Supreme Court because it is supposed to only capture the most extreme kind of content. Even so, the legal definition is open to varying interpretations, and courts and judges frequently disagree about whether a given piece of content crosses the line. When does harsh criticism of Israel become anti-Semitism? When do strong statements of religious beliefs about the “proper” definition of marriage become hate propaganda targeting the LGBTQ community? Is the Digital Charter going to place these decisions in the hands of private platforms? If so, will those platforms be punished if, in the eyes of the government, they make the wrong call? If the answer is yes, they will certainly err on the side of censorship rather than free expression. And if dissemination is relatively clear, what does it mean to “foster” hate? Will platforms be expected to interfere in how online networks form to ensure like-minded bigots can’t find each other? If the goal of social media is to help connect people, are we now saying that some people really do need to be isolated? Our constitutionally protected freedom to associate is protected by the same Constitution which safeguards freedom of expression.

Finally, is the principle’s reference to “criminal content” a separate category, or are hate and violent extremism sub-categories of this broader theme? Are platforms responsible for deciding if content is criminal or will they only be expected to remove something which has already been the subject of a criminal conviction? State censorship is dangerous because we never know when our views, opinions or content may be deemed too offensive or harmful (or simply on the wrong end of the political spectrum) for public dissemination. Outsourcing censorship to a corporate entity accountable only to its shareholders is at least as dangerous.

With an election coming up in a few short months, the aspirational Digital Charter may make for talking points with little substance. Nevertheless, it is good to put this issue on the agenda. It is worth having a serious think about how to reconcile a strong commitment to free expression with a commitment or desire to deal with extremism online. And, when we pick our next elected representative, we should at least understand how they feel about free expression, and what they intend to do to protect and promote this right in the digital public square.

Fundamental Freedoms

In the fight for free speech, where does Facebook…

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

As an organization with a strong commitment to freedom of expression, CCLA has traditionally focused on prohibitions and restrictions on speech put in place by government or state institutions. We have challenged the breadth of hate speech and child pornography laws, advocated for changes to the law of defamation to help foster free speech, and supported legislation to make it harder to succeed in using our courts to stifle public participation.

But the landscape relevant to protecting free expression has changed dramatically since CCLA’s inception in the 1960s. Today, Canadians don’t only live their lives in Canada – increasingly they live in online spaces that are governed by private (and global) corporations with an enormous amount of power. While those corporations are required to follow local law, they are not bound by the same Charter of Rights and Freedoms that requires that governments limit our rights only insofar as such limits are reasonable and can be justified. Facebook develops its own Community Standards and can then enforce those standards on its platform, and change those standards if and when it sees fit. It has no checks and balances, no separation of powers. But should it? Should we start treating Facebook more like a government? Is it moving in that direction itself?

Whether you think what Facebook does is best characterized as content moderation or simply censorship, it is clear that the social media behemoth is already deep into the business of deciding what kind of expressive content has a place on its platform, and what kind decidedly does not. In effect, this means that Facebook has a great deal of power over online expression – period. Over 2 billion people use the platform worldwide, and for some, there is no meaningful distinction between the internet and Facebook. Recognizing the enormous power the company has over online content, it has proposed the creation of a Facebook “oversight board” to make difficult content decisions. I was invited to participate in a Canadian Roundtable Discussion that the company hosted to discuss this proposal. They are engaged in these discussions worldwide, are soliciting comments from the public through a consultation process, and plan to have the board “up and running” by the end of the year.

The idea behind an oversight board is that the trickiest content decisions would not be left to the company, but instead the subject of a decision by an “independent” body by which Facebook agrees to be “bound”. I am being liberal in my use of quotation marks because the details around the proposal are still very preliminary. There are many challenging questions to address: how would the board be constituted; how would it decide which “cases” to “hear”; what would a “hearing” look like; would the process be adversarial or inquisitorial; how does the use of such a board serve Facebook’s interests; how does it serve those of its users? These are each complex questions with no easy answers. If there is one thing you can say about the proposal to establish an oversight board: it’s ambitious.

I’ll admit that I have not come to a landing on whether an oversight board for Facebook would be a welcome development. Part of me wonders whether global standards of free expression are even feasible given how rooted in local context and cultures expression is – particularly online. Nevertheless, I think experimenting with new governance structures may, at a minimum, create a global discussion about freedom of expression: what it means, its limits, and how it can be fostered. CCLA will definitely be engaged in that discussion, and if you care about free speech, you should be too.

Freedom of Expression

Letter to Quebec Minister of Justice Regarding Child Pornography…

The Honourable Sonia Lebel
Ministère de la Justice
Édifice Louis-Philippe-Pigeon
1200, route de l’Église
9e étage
Québec (Quebec) G1V 4M1
ministre@justice.gouv.qc.ca
April 12, 2019

Dear Minister,

I am writing on behalf of the Canadian Civil Liberties Association (CCLA) regarding your decision to prosecute author Yvan Godbout and editor Nycolas Doucet for production and distribution of child pornography.   This is a terrible exercise of your quasi-judicial powers.  There are self-evident constitutional bars to such censorship by Criminal Code, and this matter clearly does not meet the second branch of prosecutorial discretion:  it is not in the public interest.

The CCLA is a national, non-profit, public interest advocacy organization that has been at the forefront of promoting and protecting freedom of expression since our founding in 1964. CCLA made submissions when Parliament first introduced criminal offences relating to child pornography and has been involved in every significant Supreme Court of Canada case that interprets the child pornography provisions. We recognize the pressing need to protect children from exploitation and abuse. However, we have sought to ensure that criminal laws are not used to stifle expression, including artistic expression. This prosecution does just that.

It is our understanding that the prosecution of the author and publisher in this case stems from the description, on one page of a 270-page horror novel, of the sexual assault of a young child. Now that charges have been laid, you have managed no doubt to increase the books’ readership exponentially, even though your charge suggests those in possession of it have child pornography – and are liable under the criminal law – in the eyes of your office.

While the Criminal Code definition of “child pornography” does include written descriptions whose creation does not involve harming children, the provisions must be construed narrowly, as noted by the Supreme Court of Canada in R. v. Sharpe, 2001 SCC 2. The material must either “advocate or counsel sexual activity with a person under the age of eighteen years” that would be an offence, or have as its “dominant characteristic” the description “for a sexual purpose, of sexual activity with a person under the age of eighteen years” that would be an offence. Provided our description above is accurate, it seems clear that the material is not intended to advocate for the sexual abuse of children. Moreover, the Court has held that the phrase “for a sexual purpose” should be understood to consider whether, reasonably perceived, the material is intended to cause sexual stimulation to some viewers. Our understanding is that this is a novel written in the horror genre, and that the relevant passage is only one page in close to three hundred. Given this context, it is straining the limits of reasonableness to suggest that the novel is “child pornography” as contemplated under the Code.

We also note that there are defences to the child pornography provisions which the Supreme Court has held must be liberally construed. In particular, the Code includes an artistic merit defence which the Supreme Court has confirmed should be interpreted broadly: “Any objectively established artistic value, however small, suffices to support the defence. Simply put, artists, so long as they are producing art, should not fear prosecution under s. 163.1(4).” (Sharpe, para 63)

This criminal prosecution is wrong-headed and we urge you to re-evaluate and revisit the decision in light of the foregoing, and otherwise withdraw the information.  While sexual violence and exploitation of children is a wrong, so is government censorship.  Artists always have and always will explore these subjects in their works. Prosecuting an author and editor for depicting such violence in a novel is contrary to the public interest, and sends a chill through literary and artistic communities. We petition you to reverse your decision and stop censoring literature through the Criminal Code.

 

Sincerely,
Cara Faith Zwibel, LL.B., LL.M.
Director, Fundamental Freedoms Program

Letter to Quebec Min Justice – Child Pornography Prosecution


Madame l’honorable Sonia Lebel
Ministère de la Justice du Québec
Édifice Louis-Philippe-Pigeon
1200, route de l’Église
9e étage
Québec (Quebec) G1V 4M1
minister@justice.gouv.qc.ca

 

12 avril, 2019

Madame la ministre,

Je vous écris à la part de l’Association Canadienne des Libertés Civiles (ACLC) au sujet de votre décision d’instituer une procédure à l’encontre de l’auteur Yvan Godbout et de l’éditeur Nycolas Doucet, pour production et distribution de pornographie juvénile. Ceci est un exercice absolument horrible de vos pouvoirs quasi-juridiques. Il existe des interdictions constitutionnelles évidentes à l’encontre de cette censure dans le Code criminel et ceci ne tombe pas bien évidemment sous l’emprise de la  discrétion d’un procureur d’intérêt secondaire: il n’y a aucun intérêt public à ce faire.

Notre association, la ACLC, est un organisme national à but non-lucratif et d’intérêt public, qui a toujours mené à bien la promotion et la protection de la libre-expression, et ce depuis notre fondation en 1964. La ACLC a déposé maintes soumissions lors de l’introduction au parlement de lois relatant aux offenses criminelles sur la pornographie juvénile. Outre, nous nous sommes impliqués dans toutes affaires importantes de la cour suprême du Canada relatant aux provisions sur la pornographie et sur les abus d’enfants. Toutefois, nous avons toujours  cherché à assurer que les lois criminelles ne soient jamais utilisées à des fins d’étouffement de l’expression, y-compris de l’expression artistique. Votre poursuite ne semble viser qu’à cela.

Selon nous, toute poursuite judiciaire à l’encontre de l’auteur et de l’éditeur ci-concernés dépend à l’évidence même de la description d’une agression sexuelle sur un enfant de bas âge, figurant sur une page unique sur 270 d’un roman d’horreur. Depuis que ces accusations ont été portées, il semblerait donc que vous ayez promulgué malgré vous la lecture et l’achat de ce livre, même si vos accusations essaient d’impliquer une responsabilité criminelle quelconque de la part des usagers du livre aux yeux de votre office.

Bien que la définition de la “pornographie juvénile”, selon le Code criminel, n’inclue pas les descriptions qui ne nuisent pas à un enfant de part leur création, ces provisions doivent être interprétées de manière stricte, ainsi que décrété par la Cour suprême du Canada, dans R. c. Sharpe, 2001 SCC 2. Le matériel doit donc préconiser ou conseiller  une activité sexuelle spécifique avec une personne de moins de dix-huit ans, telle activité constituant une offense, ou qui aurait pour “caractéristique dominante, dans un but sexuel” une activité sexuelle avec une personne  âgée de moins de  dix-huit ans et qui constituerait donc une offense. Étant donné la précision ci-dessus, il semblerait acquis que la lecture du livre ne promulgue en aucune sorte un abus sexuel quelconque d’un enfant.

En outre, la Cour a jugé que la phrase “dans un but sexuel” doit être interprété comme étant voulu intentionnellement stimuler sexuellement certains lecteurs. Selon nous, le roman en question est écrit dans le genre du roman d’horreur; le passage en question ne constitue qu’une seule page sur presque trois cent. Sur ce, il n’est certainement donc pas raisonnable de suggérer que l’intégralité de ce roman constitue en fait une “pornographie infantile” quelconque à l’encontre du Code criminel.

Nous notons donc qu’il existe des défenses incontroversibles contres toutes provisions de pornographie infantile interprétées par la Cour suprême. En particulier, le Code permet une défense de mérite artistique, interprétée assez vastement: “Toute valeur artistique objectivement établie, si minime soit-elle, suffit à fonder le moyen de défense. Tant qu’il produit de l’art, l’artiste ne devrait tout simplement pas craindre d’être poursuivi en vertu du par. 163.1(4).” (Sharpe, para 63)

Toute prosécution dans ce sens serait mal dirigée. Nous vous prions fortement de ré-évaluer votre décision dans cette nouvelle lumière et de vous désister. Bien que la violence sexuelle et que toute exploitation d’enfant soit bien évidemment  à tort, toute censure gouvernementale l’est bien sûr de même. Les artistes ont toujours exploré et exploreront toujours ces sujets de part leur oeuvre. Emmener en justice un auteur ou éditeur pour avoir illustré telle ou telle violence dans le contexte d’une oeuvre romancière est de fait contraire à l’intérêt public, et ce envoie un frisson de part la communauté littéraires et artistique. Nous vous demandons donc de revenir sur votre décision et d’arrêter de censurer la littérature par le biais du Code Criminel.

 

Bien sincèrement à vous,
Cara Faith Zwibel, LL.B., LL.M.
Directrice, programme des libertés fondamentales, ACLC

Lettre Ministre de Justice Quebec – Pornographie Juvenile

Court Cases

A Win for Online Privacy Rights at the Supreme…

CCLA’s voice was heard and recognized in the Supreme Court of Canada (SCC) decision released today, Douez v Facebook, Inc. The case addressed whether a Vancouver woman, Deborah Douez, should be able to pursue a claim against the social media giant under Canadian law, in Canada.

CCLA argued, and the Court agreed, that one reason we need to make sure that privacy and other rights are protected in these kinds of contracts is that social media use is becoming an essential part of participation in public life:

As the intervener the Canadian Civil Liberties Association emphasizes, “access to Facebook and social media platforms, including the online communities they make possible, has become increasingly important for the exercise of free speech, freedom of association and for full participation in democracy.” (para 56)

Most of the important principles CCLA argued for found traction with the Court, which generally agreed that “take it or leave it” consumer contracts are different than other kinds of commercial contracts because they raise questions of meaningful consent, and that it is in the public interest to protect rights such as privacy when evaluating where disputes about this kind of contract should be heard.

Recent statistics reveal that in March 2017 there were more than 1.94 billion active users on Facebook, with five new users joining every second.[1] More than 18 million of these are Canadian, 1.8 million in BC alone.[2]   CCLA believes that all of these people, who use Facebook as an important part of their social lives, and who share their photos, sexual preferences, location, religious affiliation, political views and all kinds of personal information, should have an option to bring forward a case in Canada, under Canadian law, if they experience privacy violations.

Ms. Douez tried to initiate legal actions against Facebook in British Columbia, for using her name and picture in “sponsored stories” advertisements without express consent. Facebook argued that she could not bring forward her case in BC because when she created her account, she agreed to their terms of service. Those terms of service include a forum selection clause, specifying that users must resolve any claims against the company in a US court located in California.

This case revolved around a very complex body of law relating to forum selection. The existing common law test to determine whether a Canadian court should override a forum selection clause was established by the Supreme Court in the Pompey case.[3]

The Pompey test was designed for commercial contracts, where two equal parties negotiate an exchange of goods and decide together where conflicts should be resolved. The built-in presumption in the test is that forum selection clauses should mostly be upheld, because they are part of the bargain agreed to by both parties.

This case is the first time the SCC has been asked to consider how the Pompey test applies to a “take it or leave it” consumer contract, known more formally as ‘contracts of adhesion’. CCLA argued that the test needs an important update if it is to be used to decide in which jurisdiction individuals may pursue privacy violations. When individual users open accounts with big companies like Facebook or Google, those individuals have no power to bargain a contract that is fair to both parties. Contracts for social media accounts are all or nothing documents: users must give consent for whatever the company asks, or they cannot create an account. We argued that when important rights such as privacy are at risk, Canadians should not automatically have to give up their rights to seek recourse in a Canadian court in order to open a Facebook account.

CCLA is pleased that the SCC agreed, stating that “Canadian courts have a greater interest in adjudicating cases impinging on constitutional and quasi-constitutional rights”, such as privacy rights.

An improved ability to bring forward privacy complaints against large social media companies in Canada and have them heard under Canadian law is an important victory.

CCLA would like to thank Cynthia B. Kuehl and Meredith E. Jones of Lerners LLP for all of their work on this case.

Read CCLA’s factum here.

 

[1] https://zephoria.com/top-15-valuable-facebook-statistics/

[2] https://www.statista.com/statistics/282364/number-of-facebook-users-in-canada/

[3] ZI Pompey Industrie v ECU-Line NV, 2003 SCC 27 (available on CanLII) [Pompey]. https://www.canlii.org/en/ca/scc/doc/2003/2003scc27/2003scc27.html

 

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