By Jon Festinger on January 20, 2018
By Claudio on January 18, 2018
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  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?
By peter coady on January 18, 2018
David Choffnes, a researcher from Northeastern University, has created an app that detects net neutrality violations.
The app, called Wehe, is designed to test download speeds from seven apps: YouTube, Amazon, NBCSports, Netflix, Skype, Spotify, and Vimeo. Wehe uses your device to exchange traffic recorded from real, popular apps like YouTube and Spotify—effectively making it look as if you are using those apps. As a result, if an ISP tries to slow down a YouTube video, their app would see the same behaviour.
They then send the same app traffic, but replacing the content with randomized bytes , which prevents the ISPs from classifying the traffic. Our hypothesis is that the randomized traffic will not see application-specific shaping, but the original traffic will see it. They repeat these tests several times to rule out noise from bad network conditions, and tell you at the end whether your ISP is shaping your traffic.
According to Choffnes, net neutrality violations have been going on even before the rules changed. Data differentiation has been commonly used by cell phone providers. Choffnes’ research focuses on how and when throttling occurs:
- “What he’s found is that, for the most part, telecom providers aren’t throttling video; they are using a network management tactic known as deep packet inspection that throttles based on metadata associated with network traffic. What this means is that T-Mobile, for instance, might not try to detect whether something is a video or not, but it can detect whether a service calls its data a video or has the metadata hallmarks of a video. If so, it will set a download speed cap for that specific data”
An ISP will deliberately slow down traffic to certain websites, as was the case in the dispute between Comcast and Netflix. In a regulatory filing, Comcast accused Netflix of extortion. Netflix wants to be able to deliver its video traffic directly to Comcast’s network for free, but the cable giant (and some other large broadband providers) have been demanding fees from Netflix. If Netflix refuses to pay the fees, the quality of its videos plummets. The video site has accused the broadband providers of abusing their market power and harming Internet freedom by demanding “tolls” for the network connections (Source: https://www.theatlantic.com/politics/archive/2014/09/comcast-accuses-netflix-of-extortion/456813/).
Currently, Choffnes is under contract with a French telecom regulator to provide the app as a service. ARCEP, France’s version of the FCC, has cited his work and wants to use the methods to catch telecom companies violating net neutrality.
In related news, the FCC released its new regulations earlier this month. They suggest that “no-blocking and no-throttling rules are unnecessary to prevent the harms they were intended to thwart”. Instead, it is claimed that consumer backlash and market incentives will keep these ISPs in check. However, it appears to me that these rules are not only necessary, but require greater strength. ISPs have been operating in ways that give rise to consumer backlash (ex. AT&T blocking Facetime, but allowing it under a more expensive plan), and the FCC is now further enabling them to do so (Source: https://www.theatlantic.com/politics/archive/2014/09/comcast-accuses-netflix-of-extortion/456813/)
By rasmeet mohar on January 17, 2018
ARTICLE : https://www.marketwatch.com/story/netflix-earnings-analysts-await-update-on-how-price-increases-are-affecting-growth-2018-01-17
Netflix is going to report its fourth quarter earnings next week and the question addressed in this article is : How has their increase in pricing affected its earnings?
This article states that Netflix is expected to have : “more than 173% improvement compared with the same quarter a year ago, and roughly a 41% increase compared with the third quarter”. If this is true and Netflix ends up making more money, I think this is a clear reflection of Netflix’s dominance in the streaming industry and the weight its original content has since it has reduced a lot of its outside content (which has been of annoyance to many subscribers -myself included). Although, including greater original content is a crucial move by Netflix since Disney is planning to collaborate with Fox for their own streaming service in 2019 and as a result Netflix will not be able to attain rights to programs/films from Marvel, Pixar etc.
Cosmopolitan magazine even addressed many negative comments from subscribers when the announcement for price increase was heard: http://www.cosmopolitan.com/entertainment/tv/a13607214/netflix-raising-prices-social-media-reactions. However, I believe Netflix’s earnings will result in the prediction laid out in the article despite complaints by subscribers. Although, I wasn’t actually bothered by the price increase because I found it to be incremental ( as Netflix strategized to do) , after our discussion about the oligopoly of companies in mainstream media and telecommunications – I can’t help but think in the years to come I will start caring as we may be going down the same path with streaming sites – where consumers get squeezed financially due to the dominance of a few companies.
On the other hand it would be interesting to know how Hulu is doing as it dropped its prices and increased its outside content at the same time Netflix increased its prices. http://www.newsweek.com/hulu-price-drop-netflix-681029
By Jon Festinger on January 17, 2018
With all the noise, concern and misdirection around what has come to be known as “fake news”, it’s easy to lose of not only the legal history of addressing similar, if not identical, issues. What seems odd today is that those who shout “fake news” often seem cynically tactical and rarely seem as interested in the hard work of establishing the “true” facts as one might reasonably expect.
While “Fake News” may not have been a recognizable phrase the issue is hardly new. History shows that William Randolph Hearst’s papers sensationalized, misrepresented, and sometimes outright fabricated news about the Spanish-American War (1898).
In the U.S. the Federal Communications Commission used the “Fairness Doctrine” in an attempt to maintain honest, equitable, and balanced reporting until 1987 when it was effectively ended by the invocation of free speech principles by the Supreme Court of the United States in Red Lion Broadcasting v. FCC.
Canada’s approach to broadcasting policy is quite different. It does not specifically call out news, but makes certain standards applicable to all programs. It also never explicitly or directly calls for “balance”. Section 3(1) (g) of the Broadcasting Act says “the programming originated by broadcasting undertakings should be of high standard…”. Section 3(1) (i) comes a bit closer to what was the “Fairness Doctrine” when it states “the programming provided by the Canadian broadcasting system should…(iv) provide a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern.”
It is also worth remembering Section 181 of the Criminal Code of Canada:
“Spreading false news
181 Every 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.”
This provision was struck down for vagueness in 1992 by a 4-3 Supreme Court of Canada decision in R.v. Zundel:
One other interesting note about journalistic truth comes from examining the somewhat different approaches to defamation in Canada and the U.S. Broadly speaking both countries allow a defence to a claim of defamation in limited circumstances even where the the statement made was false. In the U.S. the operative principle comes from the U.S. Supreme Court’s decision in New York Times v. Sullivan which established the “actual malice” was required to be shown before press reports about public officials could be considered defamatory.
The Canadian approach is arguably more flexible and more sophisticated. Being absent of malice is not enough. Broadly speaking the spirit of the Broadcasting Act concept of “high standards” manifest in more specific form in the Supreme Court of Canada’s adoption of the “Responsible Journalism Defence” in the 2009 decision in Grant v. Torstar. Chief Justice McLachlin summarized the required elements of the defence as follows:“A. The publication is on a matter of public interest and; B. The publisher was diligent in trying to verify the allegation, having regard to: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and (h) any other relevant circumstances.”
Finally we get to fundamental constitutional tests. These do seem to align symmetrically with the differing approaches outlined above. The U.S. 1st Amendment treats freedom of the the press in unqualified terms:
“Congress shall make no law…abridging the freedom of speech, or of the press;…”
The Canadian approach requires a balancing of interests:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Everyone has the following fundamental freedoms:…(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
So in Canada free expression can have reasonable limits, perhaps such as requiring a “high standard” of programming under the Broadcasting Act or responsible journalistic inquiry as one possible requirement for a successful defamation defence.
So after all that, here’s the question. Which overall legal approach do you prefer in dealing with “false news”, the American or Canadian one?
By Jon Festinger on January 11, 2018
With a little help from the UBC Centre for Teaching, Learning & Technology we now have Polls enabled on this site. With a little luck I’ll have figured out how to enable them and if so a poll on how your feel after our discussions about U.S. Super Bowl commercials on Canadian TV will appear just below.
Finally, as promised here is the Federal C.A.’s 2016 decision in support of the CRTC’s decision to allow Super Bowl commercials (not to be confused with same Court’s equivalent decision on essentially the same subject last month)…
By rasmeet mohar on January 10, 2018
In light of our class discussion about Bell and Superbowl advertising, I thought it was appropriate to highlight the following article:
The CRTC has recently been urged to hold a public inquiry into the sales practices of Canada’s telecommunication providers. This urge has come in the form of a formal letter to the CRTC from the Public Interest Advocacy Centre (PIAC), an Ottawa non-profit group. PIAC urges the CRTC to investigate recent media reports about high-pressure sales tactics used by telecommunication companies which target vulnerable customers.
The article highlights how a similar investigation was done by the Financial Consumer Agency of Canada involving sales practices of major Canadian banks. If banks are not above the system than who is to say Bell, Telus, Rogers and all major telecommunication providers are not? I guess time will tell. However, this shows that perhaps the argument some may have, as addressed in class, regarding Bell getting its way when it comes to the Superbowl advertising issue and everything else it concerns itself with may not always be true.
The article can be found here: http://www.cbc.ca/news/business/bell-high-pressure-sales-reaction-1.4478586
By Laura C on January 10, 2018
I wanted to share with you a new that I read this weekend from The Globe And Mail: https://www.theglobeandmail.com/technology/your-smartphone-is-making-you-stupid/article37511900/
It is about how smartphones have changed the way our brain works, how it has been influencing our way to communicate and to access media. Family interaction is affected starting from breastfeeding. Apps would have been designed on addiction models in dispensing dopamine. Exploiting the insecurity of the users looking for reinforcement. While we are more informed, “The average American in 2007 was absorbing the equivalent of 174 newspapers a day, via sources as wide-ranging as TV, texting and the internet – five times the amount of information they took in about two decades earlier.”, it is creating a deficit of attention and affecting IQ.
There is no legal aspect, but worth thinking about it. And see the trend… see the advertising from CommonSense #DeviceFreeDinner (https://www.commonsensemedia.org/device-free-dinner#)