What did this judge do to stretch that tort to fit a creator with an audience?

Yeah, no, that's right.

So we have had for a number of years now in Canada this notion of a, a, a tort of harassment in internet communications, and we should recognize, of course, there's real speech implications when we get a court engaged in this.

So the court in some of those earlier cases have said, "Listen, this is really, we're trying to target the most extreme conduct communications that's, you know, so outrageous in character, duration, it goes on for a long time, that it really exceeds all bounds of decency." But it's generally been understood to be sort of this one-on-one, as you said, the, the person that kind of just is relentless and, and raises real harassment.

In this instance, the court is saying, "Well, we're seeing a different kind of har- effectively saying, "We're seeing a different kind of harassment here.

It's not per se by the person, by a single person doing the, uh, doing the harassing, but rather they're really weaponizing their audience to act on their behalf." And I think we had the judge take a look at what the, what the person who weaponized their audience had done, uh, the effect that it had had in terms of people actively engaging, and felt that it was appropriate effectively to say, "I'm gonna try to f- I, I'd li- I'm gonna, I'm willing to issue an order to ensure that it stops."

If that assumption, um, is now shifting, what does the online conversationist in, in, in this country look like in five or 10 years?

Yeah.

What do you understand the sticking point to be? How do you sort of see the situation?

Yeah, it's interesting.

There are really two elements to the federal law, that Online Streaming Act.

And I think only one of them is really driving this.

Actually, in some ways, it's a Quebec law that may be behind even more of it.

So in the federal law there's really two elements that are obligations for those large internet streamers and they're of course predominantly American like Netflix and Disney.

One is the mandated contributions the idea that you kick in a percentage of your revenues to help fund the creation of Canadian content and it should be noted the government already backtracked from that.

It's basically the same principle at work, especially when it comes to the discoverability piece, isn't it?

What do you understand the sticking point to be? How do you sort of see the situation?

Yeah, it's interesting.

There are really two elements to the federal law, that Online Streaming Act.

And I think only one of them is really driving this.

Actually, in some ways, it's a Quebec law that may be behind even more of it.

So in the federal law there's really two elements that are obligations for those large internet streamers and they're of course predominantly American like Netflix and Disney.

One is the mandated contributions, the idea that you kick in a percentage of your revenues to help fund the creation of Canadian content.

It's basically the same principle at work, especially when it comes to the discoverability piece, isn't it?

So I think we're getting spun a little bit by the prime minister with a little bit of this kinda jingoistic, nationalistic Canadian sovereignty narrative.

Of course, we are willing to give up some of our trade flexibility now being described as sovereignty as part of a trade deal.

This is pretty standard stuff it seems to me, where especially when you're negotiating with parties that have somewhat unequal bargaining power, one party is gonna demand most favored nation status.

They're basically going to say, "We get the very best deal you offer, and if you turn around and offer in the future a better deal to someone else, we've got the ability to get that same kinda deal or to try to stop you from entering into that.

We want the very best deal." You see that in commercial deals, and you see it in trade deals as well.

That's pretty standard.

If, on the other hand, this created restrictions that were even more broad or at a minimum the US basically saying the deal itself isn't worth the paper that it's printed on because we've got the ability to walk away from all kinds of things that we just agreed to, and there's speculation that that was part of what the deal included.

What do you have to duly note today?

Before we get into what this new proposal might have in it, can you remind us again back in 2023 when Meta blocked Canadian news? What was the big argument then?

Well, the big argument was that the government wanted Meta and Google to pay for linking to news.

So we should be clear, this is all about linking to articles that appear on publisher sites, not about the appearance of actual news on the platform.

And they argued that the company should be paying for those links.

The company said, listen, we're not the ones that post those links.

Those are our users.

We send the traffic back to the original site.

So do you think that might be part of it as well?

is there potentially a solution in the offing?

Right.

Well, listen, I mean, I think the Carney government's been walking away from what was a failed digital policy for some time now, right? I mean, we saw them back down on digital services tax.

We saw what amounts to, if not a repeal, a bit of a gutting of the Online Streaming Act.

That was Bill C-11.

And so following suit with C-18 with the Online News Act wouldn't come as a surprise.

What Meta is proposing is, frankly, back to the status quo or the status quo before the law took effect.

have

You mentioned the CRTC and you mentioned the Privacy Commissioner, that this doesn't necessarily fall under its purview, but don't you think there's overlap to a degree with these two organizations? Yeah,

I think there is.

And I think that certainly raises real questions about how this will operate.

Although in the context, especially of privacy, the government's proposed in one of their bills, Bill C-36, to take away responsibility for privacy from the Privacy Commissioner.

which I think actually is a real concern.

I would have preferred some overlap and to ensure that the expertise that the Privacy Commissioner and that office has in dealing with these issues would be enhanced with real penalties and order-making power.

But instead, the government's decided to take all of those powers away from the Privacy Commissioner, I think really undermining its role in other contexts and vested in this super regulator structure so that it becomes more than a Digital Safety Commission.

If you look five years from now, do you think this legislation will be viewed as a necessary modernization of Canada's digital laws, given your experience and watching the transformation of everything that's happened in our modern world?

Is the government striking the right balance in regards to this?

Yeah, okay.

Going with the really easy questions now, eh? Um, I, I guess, you know, this is extremely difficult, alt issue.

I, I, I'll say...

I guess I, I'll say the following.

First, I think that we ought to, to be able to recognize that where there is unlawful speech, where it is criminalized and has, is able to withstand a charter challenge so that it is viewed as constitutional limits on expression, uh, for reasons that we do have limit- we have appropriate limits, um, I think that's, you know, the... ensuring that platforms, you know, will be responsive to their obligations to address that kind of content appropriately is right.

All right.

In plain language, from your perspective, what power is the government really asking for?

But in terms of how all of this is going to work, and this is where the devil's really in the details, because it sounds like initially it kind of will be a blanket ban and then we'll just sort of figure out the rest later.

I think that's right.

I think this idea of some sort of mechanism whereby it's temporary is at least in the short to medium term an illusion.

And I think that's just the reality based on the timing that government officials are now proposing.

It's probably worth noting that when this was launched, the minister talked about the social media ban taking effect immediately.

It felt as if he hadn't read his own bill because if he looked at his own bill, that was clearly not going to be the case.

And so government officials kind of walked that back fairly quickly and said, no, it's clear that there is a need for assortment of regulations for this to take effect because this may surprise some.

But what would you make of that argument?

What would that actually look like?

Yeah, no, you're right.

I mean, the implementation is enormously problematic because it involves some mechanism to get people's age to verify that they are of a certain age so that they are entitled to use or create accounts on social media.

Now, at least at the moment, this largely unfolds in two different ways, both of which raise serious issues.

One is what's known as age verification technologies that basically would require someone to upload government-issued ID and Then there's an attempt to match it with the face to ensure that the ID is the one that belongs to the individual.

That creates huge privacy risks on its own, right? Suddenly, we've got millions of Canadians uploading their ID to third-party services.

It probably won't be to the social media companies themselves.

What does that look like to responsibly manage digital platforms?

But I mean, doesn't it make sense to kind of create legislation in tandem with this technology as it's developing instead of kind of letting it see the harms it might do? I don't know.

Yeah, I mean, I, I don't think it's about letting us see the harms.

I mean, uh, because I think th-this technology really does represent one where we can, you know, rapidly identify some of the real benefits but, you know, easily recognize that there are some risks as well.

So I think the starting point where there are requirements to mitigate certain risks is where they're starting.

Having a better understanding of these services, uh, and what takes place by requiring transparency I also think is, is really valuable and, and quite important.

Too much of this is, is just really unseen.

People just don't have a real sense of what takes place.

Right.

So Professor Geist, What's actually going on with Bill C-22? What are you and others raising concerns about? Should we be worried about security risks and vulnerabilities, not to mention violating our charter rights?

Yes.

Okay, perfect.

Great podcast.

As a short answer.

Yeah, there we go.

Yeah.

One, do you see this legislation actually passing and moving forward? And two, if someone is vocally opposed to this, what is the best cause of action? What is their best action they can take, if anything?

Mm.

Uh, you know, respectfully.

The reality is you can have all the cloud centers based in Canada that you like, but so long as the entities that own it have, uh, operations in the United States such that they're subject to US jurisdiction, or quite frankly jurisdiction of any other country, those countries are going to be able to assert jurisdiction over, for example, our data.

It...

There is no guarantees of sovereignty, and we should be clear, we do precisely the same thing.

We've had Canadian courts assert jurisdiction over French data based on the fact that a French cloud provider had, had activities and services here in Canada.

So globally, what we see taking place is countries say that location and ownership isn't enough.

What, what would those look like?

What does that collision look like?

Yeah, that's exactly right.

And so we can think of a few examples.

Really at the top of the list right now is what's known as Bill C-22.

It's the lawful access bill that the government has been struggling with.

It's one that's designed to provide law enforcement with more tools in a digital environment.

And some might say, well, what does that have to do with AI? And the problem is that The kinds of provisions they are thinking about has led many tech companies from across the board, smaller Canadian ones, VPNs, messaging services, and the big players like Meta, Google, and Apple.

So what do other countries do? Like, what's the gold standard in global AI protection and trust?

Like, is it the new, is it the new calculator? Is it the new World Book Encyclopedia? Well, it's a little, it's a little more than that, um, because for every teacher that may say, "I'm gonna, I'm gonna be l- watching like a hawk," every teacher or professor that's watching for kids to utilize it in how they might write an essay or, or glean information, they might be using it themselves to save time and create better lessons, right?

Well, I hope they are.

Um, you know, I, I think that, that the reality is that this is a pretty exceptional tool, and the notion that somehow we can put it in a box and exclude it from whether it's a workplace or our classrooms I don't think makes a whole lot of sense.

I mean, in some ways we do need to be ensuring that, uh, people do have the skills that they need to be using this tool.

Now of course the concerns that the tool itself replaces much of what's at the core of what we do is I think a very real concern.

Whether that's a, a core element of what the government does with respect to AI strategy I think is a little bit of a separate issue.

But, you know, as we grapple with this issue in so many different environments, we've gotta, we've gotta figure out how do we strike some of that balance.

There's a lot that I think AI isn't going to do, but what are you worried about that it is?

Wasn't it Stephen

Guilbeau? Yeah, there were a few different heritage ministers.

Guilbeau was the one that kicked it off.

It then moved to Pablo Rodriguez for a time.

And then Pascal Saint-Ange was the minister that kind of took it over the finish line in a couple of cases.

And so, yeah, so that news bill was all about trying to get large platforms to pay money into traditional news outlets, primarily print, but also digital.

At the time, not broadcasters, although it seems now we might have the prospect of having broadcasters added to some of these systems.

everything you know in seven minutes.

They disgrace their offices, offices of power." Why do you think, in your words, people, politicians particularly, are afraid to take a side?

side?Well, I think at times there has been this connection that's drawn to political events taking place in the Middle East, and somehow this notion that speaking out against antisemitism, uh, will implicate a perspective on that political situation.

And, you know, everybody might have a view on the politics taking place right now and, uh, over the last couple of years in Israel and Gaza and elsewhere, but the reality is we're talking about Canadian communities, Jewish communities that have frankly no responsibility for what takes place and can't be ...

It can't and should not be held accountable for what takes place there.

And yet it seems like there are too many politicians that are afraid to say that and afraid to speak out.

And at times, frankly, I feel like they, they light some of the fires where they become very vocal on the political side, at times, I think, stretching things to the point where it does have the, the risk of reverberations against the Jewish community, and they may be there when the, the shots literally are fired against the synagogues, but frankly don't take much, uh, introspection about how their own words and actions may have helped fuel some of the fire.

How do you think people should separate what's happening in the Middle East from, from addressing antisemitism here? Many things can be true, and to your point, context i- i- i- is, is not entirely part of this conversation, but it's a big part of the conversation given the last couple of years and what's happened in the last couple of years.

Yeah.