On balancing interests

As promised, let's follow up on the CRTC's push for false news with a brief look at some of the cases that need to be taken into account in determining what limits can properly be applied to freedom of speech.

Most of the discussion has revolved around R v. Zundel, in which the Supreme Court of Canada struck down a Criminal Code offence against spreading false news. But that decision is rife with points of obvious distinction: the statutory provision couldn't be justified based on even remotely modern rationales since it had been passed to protect nobles of the realm from slander by commoners, to the point where the Court majority couldn't find any valid public policy rationale for the prohibition; it was found to be overbroad in extending to any "statement, tale or news"; and it involved the "most draconian of sanctions" (i.e. criminal prosecution for an indictable offence) against an individual offender.

In contrast, none of those considerations applies to the CRTC's standards for false news. So the more relevant case looks to me to be Thomson Newspapers Co. v. Canada (Attorney General), which led to a far more balanced analysis on the question of whether the publication of polling results could be banned in the final days of a federal election campaign. The Supreme Court majority did strike down the law in question, but only based on a lack of minimal impairment after concluding that there was a legitimate objective involved in ensuring that some meaningful opportunity existed to challenge the accuracy of a poll. Which signals that there can be a legitimate role for the government to play in preventing some types of information from going unchallenged where it might unduly affect an election.

Now, I'd think there's some need to expand that analysis to apply to the wider public debate - as would be the case in discussing false news in general rather than a specific type of data at a specific time.

But that can be balanced against the fact that the CRTC's rules apply only to broadcasters. That means that they only affect the limited range of actors who wield disproportionate power to choose what content will be presented to Canadian viewers. And the ultimate sanction for a violation of the public's trust reposed in a broadcaster is merely a loss of a privilege (the license that allows for more direct access to viewers than would be available otherwise), rather than a limit on any individual's freedom of speech.

What about the argument that we should rely on the Canadian Broadcast Standards Council rather than providing for any role by a government regulator?

To start with, I'd note the obvious public vs. private bias involved in assuming that there's no problem in limiting speech as long as it's carried out by a private actor. But more importantly, the CBSC is itself made up of exactly the parties who have at least a theoretical interest in expanding their ability to distort the public debate on issues which affect them and their advertisers.

That makes for exactly the type of situation where at least some backstop is needed - both to keep the CBSC focused on the interests of the public rather than those of its members, and to ensure that possible sanctions are significant enough to keep individual broadcasters honest. (After all, a broadcaster which knows that it can air the Liberals Engage in Treasonous Sharia Bestiality Hour for the duration of an election campaign while facing no sanctions other than a possible obligation to issue a retraction after it's too late isn't going to be the least bit deterred - while the potential loss of a license figures to do far more to ensure at least some standard of reality.)

So the big questions to me look to be: should we refuse to acknowledge any imbalance between broadcasters and their possible subjects in their ability to influence the public? And should we trust private parties to protect the public interest in reality-based broadcasting with no regulatory backstop except in cases of threats to safety?

While there's room for debate on both points (and a revised standard of knowing falsehood may make sense), the ultimate answers figure to be "no" and "no". And so I'll stick with the view that it's worth fighting for some public protection of truth in broadcasting.

Update: It looks like Avaaz covered most of the above and more in its submission to the CRTC (warning: PDF). h/t to Dr. Dawg.