Evidence of meeting #131 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was proud.
A recording is available from Parliament.
Conservative
The Chair Conservative Bob Zimmer
Welcome, everybody, to the Standing Committee on Access to Information, Privacy and Ethics, meeting number 131. It's Tuesday, December 11.
Pursuant to Standing Order 108(3)(h)(vii), this is a study on the breach of personal information involving Cambridge Analytica and Facebook.
Today we'd like to welcome Mr. O'Connor, from Ontario Proud.
Do you have opening comment?
Conservative
The Chair Conservative Bob Zimmer
You have 10 minutes to make that presentation.
We do have impending votes. I will seek unanimous consent to continue until about 11:15 a.m. or so, because we're in the building. Is that fine with everybody?
Lawyer and Director, Ontario Proud
Thank you, Mr. Chair.
Thank you to the committee for inviting me here today to speak to you about your committee's review of the Cambridge Analytica affair and the privacy implications of the use of digital information in Canadian political campaigns.
As the chair said, my name is Ryan O'Connor, and I'm the lawyer for and also one of the founding directors of Ontario Proud.
Ontario Proud, for those who don't know, is a social media-based, online, predominantly not-for-profit advocacy group that promotes government ethics, personal freedom, fair taxes, fiscal probity and Canadian culture. It was started as a Facebook page in February 2016, and has now grown to over 425,000 supporters on Facebook, with approximately 100,000 email subscribers. In addition to Facebook, Ontario Proud operates several online properties, including on Instagram, YouTube and Twitter.
Millions in Ontario and throughout Canada have viewed Ontario Proud's content online, and do so regularly, to the point where Ontario Proud is one of the most engaged pages in Canadian politics and the most engaged page in Ontario politics. There are several other Proud pages, which are sister pages in other provinces, and Ontario Proud also operates a national page called Canada Proud.
During the last provincial election in Ontario, Ontario Proud was registered as a third party political advertiser pursuant to that province's Election Finances Act. It was previously advertised on television, but it has largely focused its work on non-traditional political advertising on social media, generally using memes, videos and other viral content, both satirical and serious.
Our group intends to register with Elections Canada as a third party advertiser in the forthcoming federal election. Ontario Proud is entirely domestically supported. It has not received, nor will it ever receive in the future, financial contributions from foreign sources.
Conservative
The Chair Conservative Bob Zimmer
Mr. O'Connor, I'm going to stop you for a second.
We're at about 11:04 a.m. I'm going to seek unanimous consent to continue until about 11:19 a.m. Then we'll suspend, go vote, and then come back after votes. Do I have unanimous consent?
Lawyer and Director, Ontario Proud
Thank you, Mr. Chair.
Canadians and this committee are rightly concerned about foreign involvement in our domestic electoral process in light of both the Cambridge Analytica affair and the prominent interference by foreign actors in the last American presidential election.
Canada has unfortunately not been immune to such interference. Foreign-funded groups have publicly admitted to engaging in third party campaigns against certain parliamentarians in the last federal election, and many third party political advocacy groups openly and overtly accept contributions from foreign entities.
I'm going to focus my remarks on two main areas of concern. First, parliamentarians must avoid the unnecessary regulation of online political speech, which will undermine Canadians' right to freedom of expression. Second, any legislative reforms regarding the protection and safeguarding of personal data should be undertaken through amending the currently constituted privacy legislation, as opposed to creating new and potentially onerous legal requirements for advocacy groups.
Bill C-76, the elections modernization act, recently passed third reading in the Senate, as we're aware, and presumably will get royal assent shortly. This legislation contains sweeping new regulations of third party political advertising and foreign involvement in the Canadian political discourse.
Some changes in this legislation are welcome, but do not go far enough: namely, that foreign entities are now restricted from funding third parties, and foreign third parties are restricted from advertising during election campaigns. However, foreign entities can still fund third party pre-election issue advocacy campaigns and can still participate as foreign third parties outside of an election period.
One of the most significant ways in which this committee can address the issue of foreign interference in Canadian political campaigns is to recommend that Parliament further restrict the involvement of foreign third parties and foreign-funded domestic third parties in the political process.
However, some changes in that legislation have gone too far. Bill C-76, as passed, for the first time imposes spending restrictions and financial disclosure requirements on third party ads and partisan activities, such as canvassing and calling, from a pre-election period starting June 30 before a fixed-date election until the writ drops. Moreover, Elections Canada will now be regulating, between elections, third parties that spend or receive donations in the amount of $10,000 or more in relation to ads or partisan activity, and they'll be required to provide this disclosure to Elections Canada.
The Court of Appeal for British Columbia recently found, in 2012, that regulating third party political speech outside of the writ period unjustifiably violates the charter guarantee of free expression, and it is these aspects of Bill C-76 that will, in our view, also be found to be unconstitutional.
There has been some public discussion that this committee should concern itself with policing what some call misinformation found on social media. Respectfully, this committee should decline the opportunity to do so. Leaving aside the obvious constitutional concerns of the state regulating the content of political speech for truthfulness or to sanction offenders, what misinformation is or is not is in the eye of the beholder. Criticizing political speech as misinformation is often code for simple disagreement with a political opinion. There is no easy means for the government or its agencies such as Elections Canada to determine when political opinion enters the realm of what it perceives to be misinformation, and Canadians should be trusted to make their own decisions about the viability and validity of information they find online.
Parliament should not compound the constitutional folly of its over-regulation of third party political speech by attempting to prescribe the content of third party political advertising and issue group advertising. Over-regulating third party political advocacy may have the unintended consequence of chilling political speech. Bill C-76, as it was passed, will significantly increase compliance costs for advocacy groups in the country, many of which are not-for-profit and at one point or another during the election cycle engage in political advocacy. These include everything from small environmental groups to indigenous organizations to taxpayer watchdogs and large trade unions.
Additional regulations concerning advocacy groups' online political activity may simply cause some groups to refrain from participating in commentary on government policy or participating in political debate or, worse yet, to simply ignore or flout the law. Again, this is especially problematic for smaller organizations that will now have to monitor their between-elections advocacy to ensure compliance with the requirements of Bill C-76. More time spent on compliance is less time engaging in campaign and debate, and our public discourse will be the poorer for it. This committee should refrain from any recommendations that over-burden advocacy groups.
Canada has a robust legal infrastructure for the protection of personal information through PIPEDA, through provincial legislation and through administrative structures such as the Office of the Privacy Commissioner. Third party groups are generally required to abide by applicable privacy legislation and, in our view, it is unnecessary to create a new legal regime when the present legislation suffices.
Our organization has been vigilant about protecting the data of Canadians who support and follow Ontario Proud's web properties. It has a long-standing privacy policy, and the personal data of supporters is kept confidential. Any time messages or emails are sent to supporters online, which supporters have already consented to receive, an opt-out or unsubscribe option is always clearly provided.
The first recommendation found in this committee's report of June 2018 is of interest to online advocacy groups, namely that this committee recommended that the government enact transparency requirements regarding how political actors collect and use data to target advertising, including identifying the source of the ad and the target audience. It's notable, however, that the Facebook ads function already contains much of the information that the committee suggests should be legally compelled.
We do not object to transparency requirements, provided they're enacted in such a way as to minimize or eliminate compliance costs for third party advocacy groups. For example, there should be no additional reporting requirements to a government agency, and any such regulations should be applied universally to all political parties, candidates, third parties and advocacy groups, and enacted within the presently existing legislative regime.
The review that this committee is undertaking is both timely and valuable. However, a single data breach involving a single online platform should not be used as an opportunity to over-regulate online political speech or to legislate third party electoral advertising out of existence. In its haste to address the very valid concerns about data security and privacy that arose from the Cambridge Analytica affair, this committee should take great care to ensure that it doesn't throw the baby out with the bathwater.
Canada is a country that values free expression, which fundamentally protects citizens' political speech and, by extension, that of third parties and their supporters. The former Chief Justice McLachlin and Justice Major wrote in minority reasons in Harper v. Canada, the Supreme Court's 2004 decision on third party advertising limits, as follows:
This Court has repeatedly held that liberal democracy demands the free expression of political opinion, and affirmed that political speech lies at the core of the Canadian Charter of Rights and Freedoms’ guarantee of free expression. It has held that the freedom of expression includes the right to attempt to persuade through peaceful interchange. And it has observed that the electoral process is the primary means by which the average citizen participates in the public discourse that shapes our polity.
Just as much as parliamentarians have a responsibility to protect Canadians' privacy and personal information, so, too, do parliamentarians have a responsibility to uphold this constitutional guarantee of free expression. Protecting the former cannot and should not entail undermining the latter, and the protection of personal privacy should never be used as a proxy for the prevention of political speech.
Thank you.
Conservative
The Chair Conservative Bob Zimmer
Thank you, Mr. O'Connor.
We'll start with Nathaniel Erskine-Smith for seven minutes. It will probably be the only question we will get, and then we'll have to suspend.
Go ahead, Mr. Erskine-Smith.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Thanks very much.
Mr. O'Connor, I'm glad you're here today, although I have to admit that I'm a little disappointed that Mr. Ballingall is not here. He's a constituent. Something tells me I wouldn't have his vote next year, but I still would like to give him a tour of the Hill.
You or Jeff is on the record, I think, saying that the anti-spam legislation does not apply to Ontario Proud because Ontario Proud is not a commercial actor. Is that correct?
Lawyer and Director, Ontario Proud
We've indicated that Ontario Proud doesn't deliver commercial electronic messages, so it wouldn't fall under CASL in terms of the work that we have done previously.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Okay. You indicated today, though, that PIPEDA is strong legislation. Were you suggesting that PIPEDA applies to Ontario Proud?
December 11th, 2018 / 11:10 a.m.
Lawyer and Director, Ontario Proud
No, I'm saying that provincial privacy legislation applies to Ontario Proud. We've done our very best to comply with those legal requirements.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
How many Canadians does Ontario Proud hold personal information about?
Lawyer and Director, Ontario Proud
Are you talking simply about email addresses, individuals who—
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
At the very least, email addresses, but beyond that, obviously.... You have 420,000 subscribers on Facebook. You have 155,000 email supporters, according to your Twitter account. You hold information about hundreds of thousands of Canadians. How many Canadians is it exactly?
Lawyer and Director, Ontario Proud
Well, you've listed the numbers, Mr. Erskine-Smith. So the individuals who—
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
I can't possibly have listed all the numbers, though. I haven't listed Instagram. I haven't listed various information that you might have from the last provincial election.
Lawyer and Director, Ontario Proud
Yes, I'd be happy to.... There are approximately 100,000 email subscribers. Those are individuals who have consented to providing us with their email addresses so they could—
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
The Twitter account of Ontario Proud says it has 155,000 email supporters. Is that incorrect?