Freedom on the Net
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Internet Freedom Scores
June 2015–May 2016
- In July 2015, the Canadian Radio-television and Telecommunications Commission (CRTC) ruled that the largest telecommunications providers must provide wholesale access to their new fiber-optic internet infrastructure to smaller ISPs, a decision which could increase availability and ease of access to high-speed internet (see Availability and Ease of Access).
- The Supreme Court of Canada will hear Google’s appeal in a major case with global implications, where Google was required to remove certain search engine results worldwide for a trademark-infringing company (see Content Removal).
- In June 2015, Bill C-51, the Anti-Terrorism Act with wide-ranging privacy implications, became law. Although the new Liberal government has promised to repeal some of the more problematic elements and introduce parliamentary oversight of intelligence agencies, reforms had not yet materialized during this period (see Surveillance, Privacy, and Anonymity).
Canada’s internet freedom environment continued to be generally free of government restrictions, although privacy-related concerns reemerged with new anti-terrorism legislation in June 2015.
Internet access in Canada is reliable and affordable for a majority of the population and is generally free of government restrictions. Canadians enjoy strong protections for freedom of expression, as well as a well-developed set of rules regulating intermediary liability in cases of copyright infringement.
Two major events loomed large over Canada in the past year. In October 2015, Canadians elected a new federal (national) government. The Liberal Party won a majority, after Canada had been ruled by the Conservative Party since 2006. The Liberals promised to look into some of the more onerous elements of certain laws affecting internet freedom passed under the Conservatives, such as Bill C-51, the Anti-Terrorism Act. However, the Liberal Party platform was short on details on substantive changes to internet and digital policy, and its effects, if any, will most likely not be felt in the short term. Their first budget did not assuage concerns of little movement on this front.1
The second event was the signing of the Trans-Pacific Partnership (TPP) Agreement in February 2016. While ostensibly a trade agreement, the TPP includes several chapters that would likely have an impact on internet freedom in Canada - notably Telecommunications, Electronic Commerce, and Intellectual Property. However, the TPP has yet to be ratified domestically, meaning any influence on Canadian internet freedom is merely speculation at this point. Furthermore, there is considerable divergence of opinion amongst respected expert commentators as to the actual potential effects of the TPP on the internet and digital spheres in Canada.2
There are very few infrastructural or regulatory obstacles to internet access in Canada. Internet and mobile phone penetration rates continue to grow, although there are still geographic disparities related to internet access, reliability, and cost that especially affect more rural and remote areas.
Availability and Ease of Access
According to the International Telecommunication Union, the internet penetration rate in Canada reached 88 percent in 2015, compared to 87 percent in 2014 and 80 percent in 2009.3 Canada had a mobile phone penetration rate of over 81 percent in 2015.4 Mobile carriers have deployed a number of newer technologies to provide mobile broadband service, including HSPA+ and LTE.
Broadband service of at least 5 megabits per second (Mbps) is available to 96 percent of Canadian households through a variety of technologies including fixed and wireless, according to the Communications Monitoring Report 2015, published by the Canadian Radio-television and Telecommunications Commission (CRTC), an independent public regulator.
Aiming to provide quality and accessible communications services, the CRTC has set a target to provide 100 percent of Canadian households with access to internet connectivity and broadband speeds of at least 5 Mbps by the end of 2016.5 The government department of Innovation, Science and Economic Development Canada has set a target for broadband subscriptions at 80 percent of the population by the end of March 2017.6 The CRTC indicates that 77 percent of households already subscribe to broadband services with internet speeds of 5 Mbps or more, so the government’s target would appear easily attainable and well below what could theoretically be achieved.7
The potential for increased availability and ease of access to ultra high-speed internet was greatly increased this year thanks to a landmark policy decision put forward by the CRTC in July 2015.8 In the policy, the CRTC required the largest internet and telecommunications providers in Canada to provide wholesale access to their emerging high-speed fiber-optic networks to smaller, independent providers of internet services. This should increase competition and reduce prices for consumers, at least in urban centers. The largest telecom player, Bell, appealed the policy,9 but this appeal was denied.10
Perhaps the most important obstacle to availability and ease of access in Canada is geography. Canada is overwhelmingly urban, with 81 percent of the population living in urban areas.11 Furthermore, approximately 75 percent of the population lives within 160 kilometres of the border with the United States.12 While providing “reliable and affordable telecommunications services of high quality” to rural areas is enshrined in Canadian law,13 from a practical perspective this has not translated to available and affordable high-speed internet services in rural areas, and especially in Canada’s vast northern territories, which are underserved by infrastructure generally, and telecommunications services in particular.
According to CRTC’s 2015 report, household broadband availability, in the form of 5-9.99 Mbps services, was 100 percent in urban areas yet only 86 percent in rural areas. The 86 percent figure includes 11 percent where availability was only via wireless services (HSPA+ and LTE), which are generally more expensive, especially as data usage rates increase. Faster speeds, such as 25-29.9 Mbps, are only available in 29 percent of rural households, compared to 99 percent of urban households.14
The new Liberal government has recognized this issue, and has pledged CDN$500 million over five years for a new program to “extend and enhance broadband service in rural and remote communities.”15 As yet, however, the government has provided no details, nor targets or definitions of broadband service. Perhaps more promising is the CRTC, which launched the so-called #TalkBroadband – a comprehensive review of basic telecommunications services with a focus on internet services.16 Part of the focus of the review was to examine the urban-rural divide, especially as it relates to costs, which may lead to significant policy changes down the road. The review culminated in public hearings in April 2016. The results of the second phase of the review, a major study of Canadians’ opinions about their broadband service, indicated that rural internet users experienced a range of issues with access, reliability, and cost.17
While internet access is widely available in Canada (to varying degrees as already described), there is a gap in access related to income: the highest income bracket has a penetration rate of nearly 95 percent, while the penetration rate within the lowest income bracket is closer to 63 percent.18 Internet connectivity is widely available in public spaces such as cafés, shopping malls and libraries, generally free of charge. There is a wide range of content available in both of Canada’s official languages (English and French) as well as many other languages.
Restrictions on Connectivity
There are no government restrictions on bandwidth, although the major access providers generally offer services that have caps on bandwidth that result in increased fees for users who exceed the limit. The government has not centralized the telecommunications infrastructure in Canada. However, given the vertical integration of the Canadian marketplace, the telecom infrastructure is controlled by a small number of companies, which in theory could facilitate greater control of content and the implementation of surveillance technologies.
To operate as a Canadian telecommunications carrier, a company must meet the requirements in section 16 of the Telecommunications Act. In 2014, Canadian telecommunications revenues amounted to $45.9 billion, up from $44.8 billion the previous year, a 2.1 percent growth. The five largest companies (Bell Canada, MTS Inc./Allstream Inc., Rogers, Shaw, and TELUS) captured more than 84 percent of total revenues. This number has remained steady over the last several years.19
Canadians have a choice of wireless internet providers, all of which are privately owned. There are at least three providers to choose from in all markets, although which providers may vary region to region. Restrictions on foreign investment establish some controls, though Canada has seen some foreign companies enter the marketplace in recent years. The provision of access services is subject to regulation with rules on tower sharing, domestic roaming agreements, and a consumer regulator to address consumer concerns.
For wireless services, three companies dominate the market: Bell, Telus, and Rogers. Those same companies are also leaders in the provision of wired internet services (whether via phone lines or cable), along with Shaw, Cogeco, and Vidéotron. While Canadians generally do enjoy a choice of wired internet providers, again this choice will vary from region to region, and often there is only one choice per technology type, leading to a public perception that there is not much choice and that prices are kept artificially high. The Let’s Talk Broadband Findings Report from March 2016 indicated that only one in three Canadians is satisfied with the cost of their home internet service.20
The Canadian Radio-television and Telecommunications Commission (CRTC), the regulatory body that oversees the communications industry, operates largely independently from the government. The government appoints the CRTC chair and commissioners without public consultation. The government also has, in some cases, provided guidance on their policy expectations regarding telecommunication regulations. Moreover, CRTC decisions can be appealed to the courts, or a government review can be requested. The government has overturned CRTC decisions and directed it to reconsider the issue in the past, but this has been rare.
CRTC’s regulatory powers extend to access of the internet in Canada, but not to content of the internet in Canada; this is commonly called the New Media Exemption. The CRTC’s position to not regulate internet content dates back to 1999 and has been reinforced numerous times since then,21 including by the Supreme Court of Canada.22 This is in contrast to other industries, specifically television, where the CRTC does exert some control over content, most notably by requiring a minimum amount of Canadian content by Canadian broadcasters.
The Canadian government does not generally block websites or filter online content. Illegal content may be removed by legal action taken through the court system.23YouTube, Facebook, Twitter, and international blog-hosting services are freely available.
Blocking and Filtering
The government does not generally block or filter online content, though there are a few legal mechanisms that may lead to the blocking or removal of online content in Canada. Canada’s largest ISPs participate in Project Cleanfeed Canada, an initiative that allows ISPs to block access to child pornography images that are hosted outside of Canada (as opposed to content hosted within Canada, which is subject to removal).24 Accessing child pornography is illegal in Canada under section 163.1(4.1) of the criminal code,25 as well as under international human rights standards. The initiative is targeted at international sites that the Canadian government does not have the jurisdiction to shut down.
In April 2015, the government of Quebec announced plans in its budget to require ISPs to block access to online gambling sites. The list of blocked sites will be developed by Loto-Québec, a government agency. This is expected to act as a revenue-enhancing measure for the government by directing gamblers to the state government’s own Loto-Québec-run online gaming site, Espacejeux. On May 18, 2016, the law went into effect.26 The law is likely to face a legal challenge, both on free speech and jurisdictional grounds, since the federal government has exclusive jurisdiction over telecommunications regulation. It may also violate net neutrality principles, and ISPs are concerned over the potential costs and a complicated implementation.27
Canada’s tough anti-spam law, which regulates commercial electronic messages (“CEMs”), has been in effect since July 1, 2014. The law prescribes certain content requirements in electronic messages (such as unsubscribe mechanisms and contact information) and restricts sending such messages without appropriate consent. There have been several enforcement actions involving the law in the past year, including against some of Canada’s largest corporations. In June 2015, Porter Airlines agreed to pay a fine of $150,000 for an absent or improper unsubscribe link or button, and in November 2015 Rogers Media agreed to pay a fine of $200,000 for a malfunctioning unsubscribe mechanism. Rogers Media is a division of Rogers Communications, one of Canada’s principal suppliers of telecommunications services, including internet services. In a speech to a major marketing industry group in March 2016, CRTC Chairman Jean-Pierre Blais warned that the rules in the anti-spam law “aren’t going anywhere.”28
With respect to removal of content due to copyright infringement, in 2004 the Supreme Court of Canada ruled that ISPs are not liable for violations committed by their subscribers.29 Canadian copyright law features a notice-and-notice provision in effect since January 2015, which, unlike a notice-and-takedown system, does not make intermediaries legally liable for removing content upon notification by the copyright owner. Rather, copyright owners are permitted to send notifications alleging infringement to ISPs. The providers are then required to forward the notifications to the implicated subscriber. Any further legal action is the responsibility of the copyright owner, and it is incumbent upon the person who uploaded the infringing content to remove it following a legal decision. No content is removed from the internet without a court order, and the internet provider does not disclose subscriber information without court approval. ISPs qualify for a legal safe harbor if they comply with the notice-and-notice requirements.
Despite the good intentions, the notice-and-notice system has been subject to some misuse. Several U.S.-based anti-piracy firms, including Rightscorp and CEG-TEK,have used the system to send notifications to subscribers that misstate Canadian law, citing U.S. damage awards and the possibility that their internet access will be terminated, in order to sow fear among Canadians so that they pay a settlement fee.30 The author of this report, an attorney specializing in internet and technology law, has personally been contacted by dozens of panicked Canadians who have received such notices, the overwhelming majority from CEG-TEK.
Media companies have used the courts to shut down websites that redistribute their content in violation of copyright laws. In February 2016, two major media companies, Bell and TVA, used a court order in Quebec to seize equipment and shut down a website that was streaming their sports programming over the internet without permission.31
In February 2016, the Supreme Court of Canada (“SCC”) granted leave to appeal from the judgment of the British Columbia Court of Appeal (“BCCA”) in Equustek Solutions Inc. v. Jack, a closely-watched case involving a court order requiring Google to remove websites that infringed on the plaintiffs’ trademark from its global index. Rather than ordering the company to remove certain links from the search results available through Google.ca, the BCCA upheld the lower court’s decision that intentionally targeted the entire database, requiring the company to ensure that no one, anywhere in the world, could see the search results. The SCC hearing is tentatively scheduled for November of 2016,32 and commentators, experts and free speech advocates in Canada and around the world will be watching with interest.33
Defamation claims may also result in the removal of content, as content hosts fear potential liability as a publisher of the defamatory content. Unlike legal protections against liability for copyright infringement by its users, platforms may face liability for alleged defamation once alerted to the publication. A court may also order the removal of the content. The Supreme Court of Canada has held that merely linking to defamatory content on the internet is not defamation in and of itself; it would only be defamation if it actually repeats the defamatory content, so simple links would not be removed.34
In Quebec, Canada’s French-speaking province, websites that are commercial in nature are required by law to be in French,35 although they can be in other languages as well. Violators may receive a warning from a government agency ordering the website be in French, and then be subject to fines if they do not comply. Some website operators may choose to take down their websites rather than face the expense of translation or the fines. National or international operators of websites who do business in Quebec (who would then be subject to the law) may block Quebec residents’ access to their websites rather than comply.36
Media, Diversity, and Content Manipulation
The online environment in Canada is relatively diverse, and internet users have access to a wide range of news, content, and opinions. There does not appear to be widespread self-censorship in Canadian online publications, and there is no evidence of government manipulation of online content. Some sites are affiliated with a particular partisan interest, but there are representative sites from all sides of the political spectrum available online. All major media organizations feature extensive websites with articles, audio, and video. The public broadcaster maintains a very comprehensive website that includes news articles and streamed video programming. Paywalls have become increasingly popular among newspaper organizations, but there remains considerable choice (including alternate, independent media) that is freely available.
To date, economic constraints such as net neutrality concerns have not been a significant factor in the success or failure of online media outlets and platforms in Canada, though the debate over net neutrality continues. The future of net neutrality in Canada remains unclear, as the new Liberal government’s policies are silent on the subject. However, the CRTC Chairman has often expressed support for net neutrality.
Social media and communication applications have been widely used in Canada for the mobilization of political and social movements. Online digital activism played a significant role in the Liberal government’s promise to repeal the problematic aspects of Bill C-51 (see “Surveillance, Privacy, and Anonymity”), and online activism was prominent during the federal election generally. Much online activism targeted at the ICT sector is spearheaded by a popular non-partisan, non-profit organization called Open Media, which advocates for three pillars of internet rights – free expression, access, and privacy.
Despite having a generally positive record for freedom of expression, Canada has taken some regressive steps in recent years, driven by court decisions that weakened confidentiality for journalists’ sources, and the introduction of several bills that could have negative implications for the protection of internet users’ data. However, user rights as they relate to the government and its data have improved in the past year, with the new Liberal government’s commitment to open data and access to government information a central tenet of their election platform,37 contrasting with the previous Conservative government’s more restrictive approach regarding access to information.
The Canadian Constitution includes strong protections for freedom of speech and freedom of the press. Freedom of speech in Canada is protected as a “fundamental freedom” by section 2 of the Canadian Charter of Rights and Freedoms. Under the Charter, one’s freedom of expression is “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”38 These laws and protections apply to all forms of speech, whether online or offline.
Hate speech, along with advocating genocide, uttering threats and defamatory libel, are also regulated under the Canadian criminal code.39 Punishment for defamatory libel, advocating genocide and uttering threats may include imprisonment for up to five years, and up to two years for hate speech. Human rights complaints regarding potentially defamatory statements could also be decided through the mechanisms provided by provincial human rights laws and the Canadian Human Rights Act (“CHRA”);40 however the controversial provision of the CHRA prohibiting hate speech (s. 13), which was perceived by many as being too broad and thus potentially limiting legitimate free speech, is currently not in force.
There are no specific online restrictions on sensitive topics. Anti-spam legislation, enacted in July 2014, requires opt-in consent to send commercial electronic messages. Critics of the legislation have argued that it is overly broad and seeks to overregulate commercial speech.
Prosecutions and Detentions for Online Activities
Individuals were not arrested or prosecuted for online activities during the coverage period.
Citizens can be subject to legal sanction for possessing, accessing or even distributing child pornography if they post images of it on the internet.41 Generally, writers, commentators, and bloggers are not subject to legal sanction for content that they post on the internet. Internet users are free to discuss any political or social issues without concern for prosecution, with the exception of the hate speech provisions discussed above.
Surveillance, Privacy, and Anonymity
After a busy period for legislation and court cases involving surveillance and privacy in 2014 and mid-2015, the environment remained largely unchanged in 2016. While some argue that the signing of the Trans-Pacific Partnership (TPP) Agreement has major implications for privacy,42 the concerns remain speculation with the TPP not yet in effect.
Bill C-51, the Anti-Terrorism Act that passed in June 2015, has major privacy implications. The bill permits information-sharing across government agencies for an incredibly wide range of purposes, many of which have nothing to do with terrorism. The bill was opposed by all Canadian privacy commissioners but ultimately passed and became law. However, the newly-elected Liberal government has vowed to “repeal the problematic elements of Bill C-51,”43 even though the Liberals supported the bill when it was originally passed. While the Liberals have not provided an exhaustive list of the “problematic elements” they would repeal, they would at the very least seek to ensure any Canadian Security Intelligence Service (CSIS) warrants respect the Canadian Charter of Rights and Freedoms, and to narrow certain overly broad definitions in the bill. The Liberals also promised a Parliamentary Committee to oversee national security activities covered under the bill and introduced Bill C-22 in June 2016 to achieve that goal.44
In June 2015 the government passed Bill S-4, the Digital Privacy Act, which modified the Personal Information Protection and Electronic Documents Act (PIPEDA), Canada’s private sector privacy law.45 The bill expanded the scope for companies to make voluntary warrantless disclosures of personal information under certain circumstances, by allowing for such disclosures to any organization, not just law enforcement. The bill also established new mandatory security breach disclosure requirements (although these provisions are not yet in force) and enhanced the meaning of consent within PIPEDA.
In a potentially disturbing development for Canadians’ privacy, it was revealed in January 2016 that metadata had been shared with Canada’s “Five Eyes” international partners (the U.S., U.K, Australia and New Zealand) without necessarily having been anonymized. In response, the Communications Security Establishment, Canada’s electronic spy agency, stopped sharing certain metadata with those countries, until appropriate protections are in place.46
From the previous year, the most notable privacy case was the Supreme Court of Canada’s R. v. Spencer decision, released in June 2014.49 In a unanimous decision written by Justice Thomas Cromwell, the court issued a strong endorsement of internet privacy, emphasizing the importance of privacy regarding subscriber information, the right to anonymity, and the need for police to obtain a warrant for subscriber information except in exigent circumstances or under a reasonable law. In January 2016, Canada’s Privacy Commissioner called on the government to confirm these “Spencer principles,” in light of complaints from law enforcement officials that the decision has made their job impossible.50
The Office of the Privacy Commissioner provides an important oversight function related to privacy of Canadians’ information in the digital medium. The Privacy Commissioner of Canada, Daniel Therrien, is an officer of parliament who reports directly to the House of Commons and the Senate. The commissioner’s mandate includes overseeing compliance with the Privacy Act, which covers the personal information-handling practices of federal government departments and agencies, and PIPEDA, Canada’s private sector privacy law.51
Intimidation and Violence
There were no documented cases of violence or physical harassment of internet users in Canada for their online activities during the report period. In a highly-watched case, a Toronto man was found not guilty of criminal harassment regarding a high volume of possibly threatening Tweets targeted at two women.52 The judge found the women’s fear was not reasonable given the circumstances. However, in another case, a man was found guilty of harassing and threatening a female Member of Parliament on Twitter.53
In a highly-praised landmark civil case in January 2016, a man who published revenge porn against his ex-girlfriend was ordered to pay $100,000 to the victim who suffered severe emotional distress.54 The Ontario judge clearly tried to dissuade future publishers of revenge porn, and used an expansion of the invasion of privacy tort in Canada to do so. The judge even indicated he would have ordered a larger award if possible ($100,000 was the maximum under the specific procedure used).
While there have been numerous cyberattacks and data breaches in Canada in recent years, very serious, widespread, systematic technical attacks have not been such a serious issue in Canada. A prominent cyberattack in June 2015 crashed several government websites and e-mail services. The international group Anonymous claimed responsibility, citing it as a protest against the passage of the Bill C-51 Anti-terrorism Act.55 More recently, in March 2016, an Ottawa hospital was the victim of ransomware (a type of malware used to extort money from victims), but it is uncertain if they were specifically targeted.56 The new Liberal government has launched a comprehensive review of cybersecurity threats57 and increased spending for cybersecurity in their March 2016 budget to prepare for the increasing risk of technical attacks. Many experts believe Canadian citizens and business are woefully unprepared against cybercrime and hacking.58
2 Compare e.g. Barry Sookman, “TPP, copyright, e-commerce and digital policy: a reply to Michael Geist,” December 15, 2015, http://bit.ly/1T6doiZ, and Michael Geist, “The Trouble With the TPP, Day 50: The Case Against Ratifying the Trans Pacific Partnership,” March 14, 2016, http://bit.ly/1T6do2l.
3 International Telecommunication Union, “Percentage of Individuals Using the Internet, 2000-2015,” accessed October 10, 2016, http://bit.ly/1cblxxY.
4 International Telecommunication Union, “Mobile-cellular telephone subscriptions, 2000-2015” accessed October 10, 2016, http://bit.ly/1cblxxY.
Canadian Radio-television and Telecommunications Commission, “Communications Monitoring Report 2015,” October 2015, accessed March 22, 2016, http://bit.ly/1WIBcsd.
8 CRTC Telecom Regulatory Policy 2015-326, July 22, 2015, http://www.crtc.gc.ca/eng/archive/2015/2015-326.htm.
17 EKOS Research Associates Inc., “Let’s Talk Broadband Findings Report,” March 18, 2016, http://bit.ly/1M0lkB0.
18 Statistics Canada, “Canadian Internet use by age group and household income for Canada, provinces, and metropolitan areas,” CANSIM, Table 358-0152, accessed September 17, 2014, http://bit.ly/1GQi7M1.
20 EKOS Research Associates, “Let’s Talk Broadband Findings Report,” March 18, 2016, accessed October 10, 2016, http://bit.ly/2d7AIuv.
21 See most recently Broadcasting Regulatory Policy CRTC 2015-355 and Broadcasting Order CRTC 2015-356, August 6, 2015, http://bit.ly/22HBQx9.
24 Cybertip!ca, “Cleanfeed Canada,” accessed September 19, 2014, http://bit.ly/1jy5ws4.
25 Criminal Code, RSC 1985 c C-46 s 163.1(4.1).
29 Society of Composers, Authors and Music Publishers of Canada v Canadian Assn of Internet Providers,  SCC, 2 SCR 427.
30 Jeremy Malcolm, “Canada Must Fix Rightsholder Abuse of its Copyright Notice System,” Deeplinks Blog, Electronic Frontier Foundation, April 23, 2015, http://bit.ly/29hzJGZ.
39 R.S.C 1985 c C-46, http://bit.ly/22YUNYE.
41 Kevin Bissett, “Douglas Hugh Stewart, New Brunswick Man, Gets 5 Years In Prison For Millions Of Child Porn Images,” Huffington Post, November 14, 2011, accessed September 19, 2014, http://huff.to/1ZSBgZq.
43 Liberal Party platform on Bill C-51, accessed March 26, 2016, http://www.liberal.ca/realchange/bill-c-51/; See also: Jim Bronskill, “Justin Trudeau's promised overhaul of C-51 tops incoming security to-do list,”CBC.ca, November 3, 2015, http://bit.ly/1M09lTL.
44 See “Government of Canada Introduces Legislation to Establish National Security and Intelligence Committee of Parliamentarians”, June 26, 2016, at http://bit.ly/2d5vLHi.
45 Personal Information Protection and Electronic Documents Act (PIPEDA), last amended on June 23, 2015, http://bit.ly/1hVRkBe.
50 Daniel Therrien, “Op-ed: Federal Privacy Commissioner urges caution should Parliament revisit warrantless access,” January 25, 2016, http://bit.ly/2drmDZJ.
(0 = Best, 100 = Worst)
(0 = Best, 25 = Worst)
(0 = Best, 35 = Worst)
(0 = Best, 40 = Worst)