How to issue legislation for the Internet? | duty

All democracies are working to put in place appropriate, relevant and effective legislation to ensure that individuals respect the safety of online activities. Mr. Trudeau’s re-elected government has already expressed a desire to raise the bar for laws on the media as well as those targeting serious crimes committed online. Last week, Prime Minister LEGO, in his inaugural address, announced his intention to legislate on cybersecurity and digital citizenship. There is something reassuring about governments’ willingness to abandon a laissez-faire attitude about what happens online.

Contrary to popular belief in some quarters, courts have long recognized that national laws apply to online activities, even if the company’s headquarters or servers are abroad. But to account for the speed that characterizes networked environments, laws must above all define the principles and objectives to be achieved, and establish flexible regulatory processes.

Adaptability and flexibility

We must intervene quickly when changes in practices, technologies or markets lead to imbalances. If the laws are too specific, they will become obsolete when the targeted activities use other technology vectors. For this reason, laws should not be written around a particular business model or technology. We need laws that are as neutral as possible regarding technology. For example, the 2001 Quebec Law on the Legal Framework for Information Technology allows the use of all technologies provided that the devices used ensure reliable and secure transactions. To do this, the law specifies the results that technologies must produce, but is careful not to force the use of certain tools.

The imperatives of technological neutrality and adaptability require the enactment of laws that establish processes capable of anticipating and adapting to the changing contexts of technologies. Since the Internet is not very sensitive to territorial boundaries, laws must also regulate cooperation with other countries. National regulatory processes must correspond to the networks that connect countries with converging visions of the values ​​to be protected.

To ensure that regulations are flexible and adaptable, we need laws that are couched in general terms. Rather than trying to describe in detail the devices to be used, the law should state the objectives to be achieved as well as the demonstrable results to be targeted. For example, legislation aimed at ensuring the availability of programming developed by Canadians should enable the regulator to establish requirements related to processes, such as algorithms, by which programming is made “discoverable” by different audiences. It would be futile to begin to enumerate the procedures which are necessary today in law, and which may be obsolete tomorrow. In short, we should be wary of those who demand laws modeled on last year, full of detail and exceptions and exceptions to exceptions.

Online media example

Let us illustrate these issues by taking the example of the changes brought about by the Internet in relation to the media. The Yale Report on the Future of Communications in Canada found that telecom services will develop faster and faster in unexpected and unpredictable ways. Hence the urgent need to equip ourselves to consistently understand the emergence of new types of companies and rapid and unexpected innovations. Inherited organizational processes from XXe The horn is not necessarily calibrated for an environment that changes so quickly. For these reasons, the Yale University report recommends an overhaul of the Canadian Radio, Television and Communications Commission (CRTC), the body responsible for understanding and regulating electronic media.

The Yale report states that to fulfill its mission in a changing environment, the CRTC must have the means to understand the markets it regulates. It needs to play a bigger role in monitoring market behavior and performance. He will have to acquire analytical skills that reflect the extent of the challenges posed by the media in the connected world. Proactively, the CRTC will have to scrutinize a huge amount of information, from multiple sources. Even if all companies must contribute to the goals set by law, it is clear that a platform like YouTube is not regulated in the same way as a radio station. The law should clearly define the objectives and enable the regulators to use all relevant means to implement them.

Above all, such a flexible tire should inspire confidence. The CRTC should be made up of experts and independents. Its decision-making processes must be transparent. The analysis process that leads to the implementation of the requirements imposed on companies must take into account the views of all relevant audiences. Its decisions should be based on the input of user advocacy groups as well as the companies involved.

Flexible digital laws must establish rules that adapt to the diverse characteristics of companies operating in networked worlds. To forget this is to condemn oneself by repeating arguments from a bygone era.

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