Disinformation

Is Canadian Law Better Equipped to Handle Disinformation?

By Eve Gaumond
Friday, December 11, 2020, 8:01 AM

On Oct. 13, before President Trump—with only falsehoods as ammunition—began live-tweeting his attempt to overturn an election he lost, Emily Bazelon published an article in the New York Times Magazine entitled, “Free Speech Will Save Our Democracy: The First Amendment in the Age of Disinformation.” In this piece, Bazelon presents—and questions—the American free speech jurisprudence, according to which false statements and hurtful speech on public issues are presumptively protected by the First Amendment because “the ultimate good desired is better reached by free trade in ideas.” She wonders if the time has come for Americans to revisit the way they envision free speech.

In asking “whether the American way of protecting free speech is actually keeping us free,” Bazelon notes that free speech is shaped differently in Europe, Canada and New Zealand—and that those jurisdictions do not seem to be facing disinformation crises of comparable magnitude to the one facing the United States.

Invited to discuss her paper on Benjamin Wittes and Kate Klonick’s online daily show, “In Lieu of Fun,” Bazelon faced questions from Wittes on this conjecture: I love a piece that says that there might be a cost for treating free speech as we do in the U.S., Wittes noted, but is there any evidence that those countries with different free speech traditions really are handling the disinformation problem any better?

I’m Canadian—and, watching the show, I wondered about this as well. Has Canada indeed had any more success than the United States in countering disinformation? And if so, can that additional success be attributed in any serious way to Canada’s more permissive regulatory approach to free speech? It’s not an easy question to answer. Just as in the United States, the pandemic has brought a whole lot of misinformation and conspiracy theories to Canada, and the country—which is decidedly not insulated from the American information environment—imports nearly all U.S. conspiracy theories. I’m writing this piece from Quebec, which has no small number of QAnon activists, for example.

That said, it is true that in shielding its electoral system from floods of disinformation and misinformation—that are, respectively, intentionally false or misleading information aimed at achieving a political goal and falsehoods spread without an intent to deceive—Canada does seem to be better off than the United States. But whether that’s the result of Canada’s different free speech tradition or, say, its lower-stakes political environment and more easygoing political culture, is not at all clear.

In response to Bazelon’s argument, I set out to study how Canada manages disinformation and what role, if any, its constitutional framework for freedom of expression is playing in whatever success it may be having. The results are murky. While the Canadian electoral system does seem to have less disinformation than the U.S. system, there’s no clear evidence that the way Canada envisions freedom of expression is directly related to that fact.

Bazelon’s Conjecture

Before diving deep into the Canadian information environment and its attendant constitutional debates, it’s worth reviewing the specifics of Bazelon’s argument. Her article in the Times presents the American media ecosystem as a key feature of the U.S. disinformation crisis. Until the mid-1980s, she writes, the Federal Communications Commission regulated media ownership and “broadcasters were held to a standard of public trusteeship, in which the right to use the airwaves came with a mandate to provide for democratic discourse.” Then came the “libertarian shift of the Reagan era.” Media conglomerates started to develop, and the obligation for broadcasters to include diverse points of view was repealed. This led to polarizing Fox News-like media groups. Citing Harvard law scholar Yochai Benkler, Bazelon explains that those kinds of conservative media empires are now part of a feedback loop of disinformation in which false statements and hurtful speech reverberate.

Another addition to that same feedback loop, Bazelon argues, are the various online platforms: Facebook, Twitter and Google, for example. These platforms are like public squares, where disinformation spreads among individuals. As private actors, though, internet platforms aren’t legally bound by American free speech jurisprudence, which constrains only governments; they are allowed, instead, to moderate the content published by their users. And in some circumstances, they have been happy to do so—when it comes to limiting publication of pornography, for example. But for a long time platforms, influenced by the American free speech tradition and the First Amendment, held back from moderating potential disinformation and misinformation, opting instead for a more permissive approach. They didn’t want to become “arbiters of truth,” in Mark Zuckerberg’s notorious phrasing.

More recently, platforms have shifted gears and taken a more aggressive approach in countering disinformation and misinformation by adding fact-checking labels to controversial information in an attempt to “counter false speech with more speech,” as Bazelon puts it. But Bazelon quotes many scholars who remain unsatisfied. By the time platforms end up taking action, says Kate Starbird, “the false info/narrative has already done its damage.”

Bazelon, however, believes that the “information crisis was not inevitable, nor is it insoluble.” Things can be done to turn the tide, she argues: Governments could invest in nonprofit journalism; platforms could be nudged toward more transparency through a reform of Section 230 of the Communications Decency Act, which shields platforms from civil liability for third-party content published on their services; microtargeted ads could be regulated; and big tech companies could be broken up with antitrust law.

And Bazelon has another idea too. The United States could tweak certain aspects of its free speech tradition, she suggests, to look a little more like those of its sister democracies.

But that claim raises an interesting question: Are the United States’s sister democracies doing any better than the United States in countering disinformation? And if so, do their free speech traditions have anything to do with their comparative success?

The answer is “sort of”—at least in Canada’s case.

The Canadian Disinformation Environment

There is not much question that Canada has less of a problem with electoral disinformation than does the United States. According to the Digital Democracy Project, a joint initiative from the Max Bell School of Public Policy at McGill University and the Ottawa-based Public Policy Forum, “disinformation did not play a major role in the 2019 Canadian national election campaign.” This seemingly healthy electoral climate appears to have survived even in the midst of the pandemic. Indeed, three Canadian provinces—New Brunswick, British Columbia and Saskatchewan—have held their general elections this fall without any major disinformation incidents having been reported. Compare that to, say, the current environment around the Senate runoff in Georgia.

But this result is overdetermined. Part of the American disinformation crisis seems to be a Trump problem, and mainstream Canadian politicians are nothing like Donald Trump. To the extent that the American problem has been made worse by information operations from Russia, maybe the Kremlin doesn’t care as much about Saskatchewan or New Brunswick. The U.S. high-stakes, winner-take-all political system may play a role too. And yes, as Bazelon points out, there may also be a media component.

Indeed, Canada’s different media environment likely does play some role in the country’s ability to more effectively respond to the problem that disinformation poses. According to the Digital Democracy Project, “the Canadian political information ecosystem is likely more resilient than that of other countries, in particular the U.S., due to a populace with relatively high trust in the traditional news media, relatively homogenous media preferences with only a marginal role for hyperpartisan news, high levels of political interest and knowledge, and—despite online fragmentation—fairly low levels of ideological polarization overall.”

But this argument is a little different from Bazelon’s suggestion that Canada’s vision of freedom of expression may have protected it from disinformation and misinformation.

Could Canada Restrict “Fake News”?

Citing German-Jewish philosopher Hannah Arendt, Bazelon suggests that France-inspired laws that allow the takedown of misinformation or disinformation during election time might be solutions worthy of consideration. The Canadian constitutional environment would not allow regulations such as France’s. However, Canada has enacted some narrower regulation regarding dissemination of false and misleading statements in the electoral context.

As in the United States, freedom of expression is of foremost importance under Canada’s constitutional order. According to the Supreme Court of Canada, “It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression.” To be constitutionally valid, a limitation on freedom of expression has to be demonstrably justified in a free and democratic society following the four-step test from R v. Oakes (described below).

A quick glance into the past helps in defining what can—or cannot be—demonstrably justified under Canadian constitutional law.

Until 1992, the Criminal Code of Canada prohibited the offense of spreading false news. The provision was declared unconstitutional in R. v. Zundel on the grounds that it infringed the guarantee of freedom of expression protected by Section 2b) of the Canadian Charter of Rights and Freedoms. Ernst Zundel, a neo-Nazi, was prosecuted for publication and distribution of white supremacist literature such as pamphlets entitled “Did Six Million Really Die?” and “The West, War and Islam!”

Section 181 of the Criminal Code, under which Zundel was prosecuted, failed the constitutional test. It was a relic of British common law that had been abolished in England in 1887 and never made its way to the United States. For unknown reasons, this vague provision—that “[e]very one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years”—had survived in Canada, although nobody had ever been convicted of it.

Writing in Zundel, Supreme Court Justice Beverley McLachlin—who later became chief justice—explained that some of the expressions targeted by Section 181 had social and democratic benefits and thus could not be prohibited. Indeed, some deliberate lies have value, she argued:

Exaggeration—even clear falsification—may arguably serve useful social purposes linked to the values underlying freedom of expression. ... A doctor, in order to persuade people to be inoculated against a burgeoning epidemic, may exaggerate the number or geographical location of persons potentially infected with the virus. An artist, for artistic purposes, may make a statement that a particular society considers both an assertion of fact and a manifestly deliberate lie; consider the case of Salman Rushdie’s Satanic Verses, viewed by many Muslim societies as perpetrating deliberate lies against the Prophet.

The line between truth and falsehood cannot be objectively defined, the court argued. Oftentimes, the views and opinions of the majority end up being treated as facts and, therefore, opinions of the minority are perceived as false information. Yet the very reason why freedom of expression exists is to protect the right of the minority to express its views, however unpopular those views may be.

So far, Canadian constitutional law does not seem all that much more permissive than American law with respect to news that is simply false. But by explaining how not to regulate false news, Zundel provided—in a certain way—a road map showing how false statements could be limited in Canada. The implication of the decision, after all, was that some kind of lies do not have any social value, and their untruthfulness might be easily proved. Under such circumstances, Zundel suggests that a ban would stand.

Consider, for example, lies regarding a politician’s criminal record or his citizenship, place of birth, education, or professional qualifications. With respect to the ability to demonstrate truthfulness, these falsehoods do not pose problems comparable to those arising from complex historical events. The first set of facts might be proved quite easily using direct evidence, such as a birth certificate or official court records. By contrast, ascertaining the veracity of complex social and historical facts that occurred in the past may prove to be exceedingly difficult.

So it’s conceivable that Canadian constitutional law would tolerate a statute forbidding knowingly false reporting on the subject of “birtherism”—which American constitutional law would never tolerate. President Obama’s American birth, after all, is easily documented, and the lie about it serves no obvious social value.

In fact, since 2018, the Canada Elections Act has prohibited false or misleading statements regarding the personal characteristics of an electoral candidate if they are expressed during the election period with the intention of affecting the results of the election. Also prohibited are impersonations of politicians—other than for parody or satire purposes—or false statements regarding a candidate’s withdrawal from the election.

And any legal challenge to these provisions regarding false and misleading political statements on precise matters is unlikely to have much success. In 2007, the Supreme Court of Canada upheld rules against the promotion of tobacco by any means that are false, misleading or deceptive or that are likely to create an erroneous impression regarding health effects.

Note that these statements are undoubtedly protected speech under the Canadian equivalent of the First Amendment. But Canada considers preserving the election process from disinformation as a sufficiently pressing and substantial goal that—under a proportionality test—the benefits of such limits to freedom of expression outweigh its drawbacks in the context of a free and democratic society.

On this point, then, Bazelon is correct. Canada's more permissive regulatory environment with respect to free speech does offer more latitude in restricting disinformation than the American tradition does.

The harder question is whether these new tools developed by Canada to manage false and misleading statements have any explanatory power with respect to the lower incidence of disinformation in the electoral context. Is Canadian law the reason why disinformation did not play a major role in the 2019 Canadian national election campaign? Are there, for instance, any examples of the use of the new provisions against fake news that would tend to illustrate their effectiveness? Is there any evidence that they are acting as a deterrent?

The honest answer to these questions is no. There might even be some evidence of the opposite.

Andrew Scheer—leader of the Conservative Party of Canada and runner-up for the prime ministry in 2019—did, in fact, lie about his professional qualifications. The law did not seem to deter him when he pretended to have been a licensed insurance broker before entering public life—though, as the press reported about a month before the 2019 election, his time in the insurance business looked much more like a summer internship spent behind the copy machine than anything else. This was arguably sanctionable conduct under the new provisions of the Canada Elections Act, but no judicial consequences did, in fact, result from the offense. Nobody else has been charged under them either.

But don’t read too much into that. The fact that the new provisions have not been used might just reflect general compliance and—in the one major instance of violation—the fact that the media ecosystem itself had already taken care of the matter. Indeed, the story was broken by a major Canadian newspaper on Sept. 28, and two days later, Scheer admitted to the Canadian Broadcasting Company that he worked in the industry for only six or seven months and left before obtaining his license. One week after its release, the story had already faded away.

Can Canada Prohibit Dark Money Ads?

As an example of disinformation unfolding around the American election, Bazelon points to a deceptive scheme involving pictures of renowned basketball player LeBron James with deceptive messages about mail-in voting attached. LeBron James had nothing to do with the online campaign, which was instead sponsored by FreedomWorks, a U.S.-based nonprofit organization working for Trump’s reelection. When the Washington Post brought the issue to Facebook’s attention, the ads and all related content were taken down. But the ads had been seen hundreds of thousands of times.

On matters such as this kind of dark money spread of disinformation, Bazelon is clearly correct. The constitutional environment in Canada allows greater limitation of election spending, and this probably matters at least somewhat in curbing disinformation.

Following Russian interference in the 2016 U.S. election, Canada was worried about the disruption of its own electoral process. The Communications Security Establishment, a key governmental security and intelligence organization, expressed concerns that multiple hacktivist groups would very likely be deploying cyber capabilities in an attempt to influence the democratic process during the 2019 Canadian federal election. In response, the federal legislature enacted the Elections Modernization Act in order to address some of the issues arising from the use of digital technologies in the electoral context. Among other things, the law imposed stricter spending limits on advertisements for third parties and a ban on taking funding from foreign entities; established a ban prohibiting technology platforms from selling advertisements to foreign individuals or entities; and required platforms to create a registry of partisan advertising messages and election advertising messages for the preelection and election periods.

From an American perspective, at least some of these provisions would clearly run afoul of the First Amendment. Indeed, spending caps for third-party advertisers runs contrary to the principles set out in Citizens United v. Federal Election Comm’n. Moreover, in 2019 the U.S. Court of Appeals for the Fourth Circuit decided that Maryland’s law requiring disclosure and record-keeping of online political advertising was unconstitutional.

Arguing that disclosure and record-keeping requirements could have a possible chilling effect on speech, judges from the Fourth Circuit cited the example of Google, which had stopped hosting political advertisements in Maryland as a result of the law. Google acted in a similar fashion in Canada following the Elections Modernization Act. Indeed, the company refused to abide by the new ad transparency rules and simply banned all political advertising during preelection and election periods, alleging that the making of a registry was technically impossible given the way Google’s advertising system works.

But the Canadian law, unlike the Maryland law, remains on the books. Canada has persevered with its mandatory registry for online political ads. This requirement has not yet—and won’t likely—be struck down. Indeed, the Supreme Court of Canada has developed a robust body of jurisprudence asserting the constitutionality of stringent limits for political advertising, such as third-party spending limits and record-keeping.

Measures regarding third-party political advertising seem to have proved effective, though it’s less clear that they are useful specifically in controlling disinformation, as opposed to third-party spending more generally. Prior to the 2019 Canadian national election, there were some concerns that the federal election would be a replay of what happened in the Ontario provincial election the year before, when the conservative group Ontario Proud took advantage of social media to attack the incumbent Liberal government and promote right-wing populist candidate Doug Ford. In response, the federal government took many measures—like passing the Elections Modernization Act—to prevent such a thing from happening in the national election.

These measures seem to have been quite effective. On the federal scene, Canada Proud—the national offshoot of Ontario Proud, which aimed to push out Canada’s Liberal government in 2019—didn’t really take off. The organization did spend123, 000 Canadian dollars—about four times more than any other third-party advertiser—on political Facebook ads, but its work focused more on activating the enthusiasm of conservative-minded voters with online content than on persuading undecided voters. There is no direct evidence establishing whether the spending caps for third-party advertising and the registry of the various ads presented online directly limited the success of Canada Proud’s national political endeavor. But it’s notable that the organization, now under the watchful eye of Elections Canada, had a more modest success than it did in the Ontario election.

Again, the Canadian environment is—as Bazelon suggests—more permissive. And again, there are no major dark money expenditures in Canada. Here the linkage between the two facts seems clearer than with respect to possible prosecution of fake news.

Could Canada Ban Political Microtargeting?

Bazelon also points to microtargeting as an aspect of the disinformation problem. The problem with the LeBron James ad, for example, was not merely that it was misleading or paid for by third parties. It was that this ad, displayed on Facebook, was aiming to be misleading for a very specific group of people: minority voters in swing states.

This kind of strategy showed up in 2016 as well. A British team of investigative journalists from Channel 4, analyzing the data of almost 200 million American voters in the 2016 presidential election, recently reported what analysts have long suspected: Trump’s campaign, in partnership with the political firm Cambridge Analytica, used microtargeted ads in an effort to deter minority voters, especially Black people, from voting.

Whether or not Cambridge Analytica had any success in influencing the 2016 presidential election remains highly contested. But the scandal had a catalyzing effect on the debate regarding microtargeted political ads. The problem with those kind of ads, as Bazelon explains, is that unlike misleading television ads—which are widely available and can be fact-checked—misleading messages in microtargeted ads may be seen only by members of the targeted group, insulating them from challenge by the opposing campaign or the media.

To address this issue, Michael Pal—a democracy, election and constitutional specialist at the University of Ottawa—suggests that Canada should require advertisers to disclose the targeted audience of an ad in the mandatory online advertising registries discussed in the previous section. This proposition itself does not seem all that controversial, even in the United States. Indeed, such a requirement is part of the bipartisan Honest Ads Act introduced by Sen. Amy Klobuchar in the U.S. in 2017 and 2019 and framed to be consistent with First Amendment jurisprudence.

However, in an appearance on the LawBytes podcast, Pal went a bit further than transparency requirements, asking if Canada should forbid, for example, targeting racist people with political ads. The question was not necessarily framed as a policy recommendation, but it gives rise to an interesting thought experiment, especially considering the possibility of ads microtargeted at specific minority groups: Would Canada’s freedom of expression constitutional framework allow for a ban on discriminatory microtargeted advertisements in the context of politics? The question is particularly relevant because the idea of such a ban seems to be gaining some interest in the United States as well.

The short answer is that it would be surprising for a ban on microtargeted political ads to survive a constitutional challenge in Canada, at least as long as the country is not facing a major problem on this front. In this area, the United States and Canada—though by different means—would likely come to the same conclusion.

The longer answer requires a closer look at the Canadian Charter of Rights and Freedoms, which is the Canadian equivalent to the U.S. Bill of Rights. To determine if prohibiting microtargeted advertisements in the political context infringes on freedom of expression guaranteed by Section 2b) of the Canadian Charter, a court would look at three questions. First, do the microtargeted ads have expressive content? If so, is there something in the method or location of that expression—threats of violence, for instance—that would prevent the expressive content from being protected speech? If not, would the law limit the expression?

Most of the time, these questions are not too contentious, and Canadian courts generally find that there has been an infringement on freedom of expression after examining them. This would likely be the case for political microtargeted advertising as well. Assuming that the court would find that a microtargeting ban would limit protected speech, the question would come down to whether or not the infringement can be demonstrably justified in a free and democratic society.

The court has developed a four-step test in R v. Oakes to answer this question. A law infringing on any right guaranteed by the Canadian Charter needs a positive answer to all of these questions to survive scrutiny:

● Does the law pursue a pressing and substantial objective?

● Is the law rationally connected to that objective?

● Is the law designed to impair as little as possible the guaranteed right?

● And are the benefits of the law more important than its deleterious effect?

Ensuring the fairness of the electoral process and preventing minority groups from being targeted by discriminatory advertising techniques would likely be considered as a pressing and substantial objective, especially because the courts usually show great deference to the political choices taken by the legislature. With regard to the rational connection between the law and its purpose, the answer would likely depend on the particular manner in which the provisions were crafted—but a cautiously designed legal regime would probably pass muster.

A ban on microtargeted political ads, however, would likely not make it past the third step of the Oakes test, the one requiring minimal impairment to the right in question. There are ways to prevent discriminatory practices in microtargeted political advertising that are less onerous than banning such advertising altogether. Some transparency requirements—the disclosure of targeted audiences, for instance—would probably be sufficient to restrain an advertiser from engaging in practices such as targeting “Jew haters” for its political campaign. The government could also impose privacy and data protection rules governing the use of personal identifying information in order to prevent discriminatory harms in advertisements.

In other words, if Bazelon imagines that the Canadian free speech tradition would more readily tolerate an outright ban on microtargeting than would the U.S.’s First Amendment tradition, she may be wrong. The question would, to be sure, be closer in Canada than it would in the United States, but I suspect the courts would reject the idea here too.

In any event, no such law exists, so whatever success Canada has had in controlling disinformation has to find its explanation elsewhere.

Bazelon is clearly correct in some aspects of her conjecture, at least for Canada. The environment is better with respect to electoral disinformation. The free speech tradition is less strict. And at least in the campaign finance arena, there is almost certainly some degree of connection between these two facts. Less clear, however, is how closely connected to the more positive information environment is the more flexible free speech tradition. That connection remains a matter of some degree of instinct and guesswork. Put simply, there’s a lot of reason to think that there is a connection—and very little evidence to prove it.