Freedom of expression in the Internet age

Where is the law around freedom of expression heading in the midst of challenges posed by the Internet age? From defamatory comments “going viral” to cyberbullying to the media’s use of technology in the courts — there is much to think about in terms of law and innovation, privacy and public knowledge, and censorship and protection.

A panel of members from the legal profession, academia, and the media, organized by the Canadian Civil Liberties Association and Pro Bono Students Canada, approached these very issues from their respective vantage points at McGill University Faculty of Law on Jan. 30.

David Grossman, a lawyer at Irving Mitchell Kalichman LLP in Montreal, opened the forum by stressing that the popularization of ideas through the Internet isn’t necessarily concurrent with exposing good ideas to everyone.

“There isn’t necessarily a correlation between free speech and good speech,” he says. “Instead of challenging people by exposing them to new thoughts, [the Internet] just gives them an infinite reservoir from which they can confirm the beliefs they already have.” People seek out self-reaffirming ideas and comments that are harmless until these ideas turn from critique to defamation or hate speech, he adds.

McGill education professor Shaheen Shariff has spearheaded extensive research on young adults’ online communication. Her latest project aims to address the many intricate issues in reducing cyberbullying. “How do we clarify the boundaries of free expression especially for young people? The problem is we are trying to over-regulate,” she says.

At the core of the issue is public outcry for action. In the wake of the horrific events related to cyberbullying, such as the much-publicized Amanda Todd suicide, a call for action resulted in upcoming parliamentary amendments to the Criminal Code. Shariff will be making a submission. Laws touching on cyberbullying have already made their way from the Quebec National Assembly to the schools with guidelines for prevention of cyberbullying via codes of conduct that stretch beyond the schoolyard and into the virtual playground.

Legislators’ apprehension towards the issue is viewed with skepticism from both the research and legal points of view. Legislation is often a sweeping regulatory initiative aimed at everyone. “The issue is, who is everyone? Are we looking at adult speech or that of children?” says Shariff. The small differences in communication among young adults must be given due attention. The problem is that from a policy perspective, nuances are seen as a diversion from direct and swift action, and can often be sidelined.

If legislators should abstain from addressing the issue, on whom does the responsibility fall? Shariff joins Grossman in pointing to proper socialization and to the courts and existing laws as the best lines of defence.

“How has the web 2.02 marketplace of ideas changed and where do we want to be more vigilant?” asks Grossman. “Courts are very sensitive to the policy aspect; they care about the chilling effect.”

We can glean from decisions such as A.B. v. Bragg Communications Inc., which granted confidentiality to the cyberbullying victim, that the courts can be conscientious when dealing with the novelty of the web 2.0 medium.

Of course, the path is not clear-cut, says Shariff. “Efforts must be directed at sensitizing the judiciary, the government, and the legal community.”

Patrycja Nowakowska is a second-year law student at McGill University.

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