Is Canadian Law Better Equipped to Handle Disinformation?

The Supreme Court of Canada in Ottawa. (Joanne Clifford, https://tinyurl.com/y2xaoraf; CC BY 2.0, https://creativecommons.org/licenses/by/2.0/deed.en) 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—fair
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