Privacy Commissioner not consulted over controversial online harms bill | #socialmedia


Experts have raised the alarm about numerous issues with the government’s proposed legislation, including over how it could affect privacy rights

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The federal privacy commissioner wasn’t consulted by the Liberal government in developing its online harms bill, proposed legislation that experts say could significantly impact Canadians’ privacy.

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The online harms bill would require social media and other online platforms to monitor and take down, within 24 hours, illegal content in five categories. Experts have been warning that the regulatory system the government has proposed, which the Liberals have promised to table as legislation within 100 days of Parliament’s return, would violate Canadians’ constitutional and privacy rights.

“Our office was not consulted by Canadian Heritage on this matter,” Office of the Privacy Commissioner (OPC) spokesperson Vito Pilieci said. The OPC was given a briefing on the technical paper the government released for consultation in July, after the privacy commissioner’s office asked for one.

The spokesperson said the OPC wouldn’t share its thoughts on the proposal publicly until the government introduces the bill.

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Michael Geist, the Canada research chair in internet and e-commerce Law at the University of Ottawa, said “of course” the government should have reached out to the privacy commissioner in developing the proposal. He noted that appeals to a new privacy tribunal are part of the online harms proposal.

“Further, there are proposals for mandated disclosures to law enforcement, implications for lawful access, and issues associated with algorithmic transparency that sit at the heart of the response to online harms,” Geist said.

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Experts have raised the alarm about numerous issues with the government’s proposal, including over how it could affect privacy rights. The bill would target terrorist content, content that incites violence, hate speech, intimate images shared non-consensually, and child sexual exploitation material, and would create a new regulator called the Digital Safety Commissioner of Canada to enforce the rules.

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In its submission to the Heritage Canada consultation, advocacy group OpenMedia criticized aspects of the proposal that require online platforms to report flagged content to law enforcement.

“Until our government restricts the vast data platforms collect on us, a requirement for platforms to turn over user data in any circumstances outside clear and imminent threat to life or a confirmed serious crime presents an enormous threat to the right to privacy of people in Canada,” the group said.

The Canadian Civil Liberties Association wrote that it has “significant concerns” about the proposal’s plan to use online platforms “as agents of law enforcement, creating mandatory reporting and preservation obligations that may expand over time and significantly impact the privacy rights of Canadians.”

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Ranking Digital Rights, an international advocacy group for freedom of expression and privacy on the internet, said the requirements for online platforms to monitor content proactively violate user privacy. It said the structure of the proposal “all but ensures” that online platforms will use tools like algorithmic filtering software to moderate content.

“Proactive filtering regimes of this kind have been identified by the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression as ‘inconsistent with the right to privacy and likely to amount to pre-publication censorship’,” the group said.

The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) told the government that by requiring platforms “to proactively monitor and filter content online, the Canadian government risks conscripting the private sector to engage in a form of dragnet surveillance that would have a chilling effect on people’s communications and behaviour online, and pose risks to their privacy.”

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The combination of proactive monitoring and mandatory reporting to law enforcement poses “an unacceptable risk to the privacy rights of Canadians,” CIPPIC said, adding that “such measures should have no place in the laws of a free and democratic society.”

Critics have also taken the government to task for the consultation process itself, for holding the proceeding during the election, which made it more difficult to participate, for refusing to release the 423 submissions the government received, and for releasing a consultation document that critics said looked like an outline of what the government had already made up its mind to do.

“The failure to even consult the Privacy Commissioner of Canada re-confirms that this online harms consultation may rank as the worst public consultation since the Liberals took office. To hold a consultation in the middle of an election, keep the results of the consultation secret, and fail to even consult the Privacy Commissioner of Canada is disqualifying,” Geist said.

“The proposal has rightly attracted criticism from across the political spectrum and from groups around the world. A restart is essential.”

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