For the past two academic years, the base theme of Communications Law was “To Regulate or Not to Regulate”. At first the question was really just a useful way to “sharpen the saw” (apologies to Stephen Covey), allowing space for the possible self-renewal of communications law through a unified theory (apologies to Albert Einstein) that included the internet and its content. However this past year the question transformed from helpful tool to scary truth. Scary at least for me coming from a past that included being a newsroom lawyer for many years, and one who arguably could be accused of being overinvested in free expression as the best safeguard for democracy. Examining that by-now well trained brain reflex in the wake of the assault on democracy that the Facebook/Cambridge Analytica/Russia maelstrom seemed to represent was hard. Suddenly my previously well-honed world view was turned upside down…Could freedom of expression really protect evil instead of unmasking it?… Could content regulation actually be more necessary than freedom of expression to ensure democracy’s survival?

Before answering, allow me to digress to some personal origins of why free expression by individuals and through journalism always felt so very important to me…

The world I suppose was a simpler to understand place when I was eleven years old in 1968. My first memories of wanting to be a lawyer related to events beginning that August where I could not comprehend how a large part of the population and power structures of the United States seemed unable to understand what was so crystal clear to an eleven year old, that the Chicago 7 had every right to protest the Vietnam War. Somewhere in the coverage I saw a journalist clubbed by police.

And so it was that freedom of expression was made sacrosanct in my eyes. If there was a problem with any form of expression, in my mind the answer always was with more expression, clarifying the previous expression. If there were still issues, surely the truest answer would come with even more expression…and on and on. William Kunstler and Leonard Weinglass, the lawyers for the Chicago 7 provided me with simple proof of that conclusion during the five month trial of the “Seven” in 1969-1970.  Confusing to me then that the initial verdicts didn’t go the way they obviously should have (though eventually the rule of law kicked in with convictions overturned through appellate reversals).

This past semester was troubling for me. In the face  of the threats that Facebook/Cambridge Analytica/Russia represented, the easy answer/reaction was regulation, with the news of every week providing regular reminders of why, and occasionally how.

I confessed in class to having a hard time seeing any other way than regulation, but also having a hard time accepting that. For some reason it all reminds me of the trash compactor scene in Star Wars, there was less and less room, and everything smelled awful, and there were monsters too…

Since our classes ended, this question of regulation, of what, and of whom has become an ever-present frenemy. As has the tension between regulation and freedom, where I have always previously had a pretty clear (though not absolute) bias towards freedom of expression.

My concerns were exacerbated by an academic I respect enormously, Andres Guadamuz, in this post to his blog…

So if I may, please allow me to try to articulate a simple-sounding proposition, which may help. Then let’s test the proposition to see where we end up. And yes we will be using concepts mentioned in class, but I never quite have seen things exactly this way (though my Class 11 talk gets kinda close) until just now.

So here goes….

The limits of freedom of expression are to be defined by what is necessary for freedom of thought.

The good news if that free expression and freedom of thought are in both the Canadian Charter of Rights & Freedoms and the Universal Declaration of Human Rights. Even better we know that in Canada free expression can be limited through s.1 of the Charter, and that we can at least look to other Charter rights (such as freedom of thought) for inspiration and guidance.

The bad news is there is not very much legally understood or defined in the modern-day (post internet) world about what freedom of thought is or is not. In Week 11 (see slides 176 & 177) you’ll see that I essentially suggest that …the law should intervene when we lose our human agency, that is when an individual’s freedom of thought is impacted causing a substantial risk of harm. Further  I argue that freedom of thought is to be defined in terms of personal autonomy and human dignity, not just to make choices, but to make creative choices on one’s own terms creating one’s own meanings.

So what happens if we test the Facebook/Cambridge Analytica/Russia mess against these standards. Everyone can and should come to their own conclusions on that. To me it’s pretty clear that what in fact occurred cannot be protected by freedom expression because what was being done was intended to manipulate people against their will. Yes. Read that again. Against their will – and try to find facts to the contrary, and don’t be surprised if you can’t. Obviously the difference between “influence” and “manipulate” will need further work, but this is hardly a new problem, well-travelled legally and regulatorily in the controversies over subliminal advertising decades ago.

To my way of thinking where this leads is towards narrow regulation protecting freedom of thought and limiting free expression only where it is necessary to do only that. It does not lead to regulating everything and everyone, and it does not lead to breaking up the tech giants just because they are…It does however, in my view lead to one other place, and that is looking hard and realistically at what each internet content provider did and did not do. It is here that I see the clearest distinction between Facebook and others in the space (including Google and Amazon – though I am not claiming those companies are perfect, only different enough to be treated differently). When I look at the history of News of the Week as chronicled on these pages, it feels to me like FaceBook was and is a very bad actor. Hard to say what they did and and didn’t know, and when, and how much was intentional, conspiratorial, or otherwise, or not. But even if none of the above, in my view there is a prima facie case for their negligence and culpability.

Please start with Carole Cadwalladr extraordinary TED Talk below, and then continue with some other headlines and stories for that Brief…

Thanks for listening.

Jon