The central question of our last class was “What should we do about fake news?” This ties into the core question of the course: “To regulate, or not to regulate?”
It seems that the Canadian approach, following Grant v. TorStar [2009] allows for an “arguably more flexible and more sophisticated” approach, by allowing for the defense of responsible communication on matters of public interest to otherwise “fake” or defamatory statements. But this is essentially non-regulation, parties must resort to private law remedies to eventually, potentially be found to benefit from the defense or not. As Professor Festinger mentioned, the CRTC declined to regulate cyberspace proactively in 1994. As I mentioned in a previous post, some Canadian commentators are suggesting we take a more proactive, German-like regulatory role in social media platforms.
This is but one alternative.
China shows us another possibility. A society where citizens are governed by social media. Sound like an episode of Black Mirror? It’s not science fiction. As Professor Festinger mentioned, citizen’s social (media) conduct in China will have significant social and financial implications. Now with the facial recognition data collected on social media and other platforms, the Chinese government is seeking to create what essentially amounts to open air prisons where citizens mobility rights are severely restricted due to government surveillance implementing facial recognition.
Is this a better alternative? If so, why? If not, how can we draft laws to prevent us from going down a similar path?
China’s approach is definitely a scary thought – I think the first thing that people would yell out is : what about our freedom of speech? what about our Charter? I like the Canadian approach in comparison because although it is a complaints based system – it creates what I believe is a balance between upholding our Charter and allowing people to rebut against using your rights and freedoms if an individual’s speech is found to be harmful against another. In this way everyone in a sense has a chance at being satisfied. If we do not follow this approach and regulate everyone’s speech and surveillance them then we automatically fail to uphold our rights and freedoms whether it is justified to infringe our freedom of speech or not. There is no process of evaluating the speech made. Another possibility is changing it from a complaints based system to an investigative one where the government takes action on any inappropriate social media use or creation of “false news” and a complaint does not need to be made , which takes away the responsibility from the victim to make a claim but I believe there should be a similar legal test to determine whether someone actually has been defamed or not in order to ensure that our rights and freedoms are still maintained.