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.
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 , 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 , 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 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 , 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 . 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.
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, Mr. O'Connor, for attending today.
I must say I was a bit surprised at the opening round of questions by Mr. Erskine-Smith, with the emotion and the passion. There seems to be a little bit of an issue with a constituent in the constituency, and I understand the background for that.
Mr. O'Connor, as you're aware, there have been a host of third parties active in Canadian elections, increasingly in recent years. In 2015, we had any number of Canadian third party players tied to Canada—the Dogwood initiative, Sisu Institute, the DI Foundation, the Salal Foundation, and, of course, Leadnow.
It's interesting that all of these Canadian third party players, either directly in elections or in election-related anti-resource development campaigns, were parented and subsidized in a variety of ways by American organizations, such as the Tides Foundation U.S.A., the Rockefeller Brothers Fund, or the Online Progressive Engagement Network, know by its acronym OPEN, which was itself created by an American organization called the Citizen Engagement Laboratory, which self-identifies as the people behind the people.
Recognizing the statement you made in your opening remarks, again, for the record, does Ontario Proud have an American or, for that matter, any other foreign benefactor of funds, direction or technological support?
I don't know how closely you have been following our study, which began earlier this year after the Cambridge Analytica-Facebook-AggregateIQ scandal, but by an unfortunate matter of timing, the final report of this study was tabled this morning before your testimony.
I would draw to your attention, with regard to your recommendations that third party political players not be subject to too much oversight, scrutiny or regulation, that recommendation 2 says:
That the Government of Canada amend the Personal Information Protection and Electronic Documents Act [PIPEDA] in order to subject political third parties to it.
Recommendation 3—and, again, this was unanimously agreed by this committee—says:
That the Government of Canada grant the Office of Privacy Commissioner and/or Elections Canada the mandate and authority to conduct proactive audits on political parties and political third parties regarding their privacy practices and to issue...fines.
With regard to the appearance of the three major political parties in Canada before this committee, only the Liberal Party resisted and argued against the application or the extension of PIPEDA to include political activities. The Conservative Party said, “Write the rules, and we will follow them.” In effect, so did the NDP.
Could you live with the recommendations that this committee has made in its report, tabled today, should the government act on them?
That's subject to my reviewing them in great detail, but Mr. Kent has provided a summary, so I'll make some brief remarks about that.
Certainly, we will comply with whatever legislation applies at a given time. If PIPEDA is extended to include third parties operating on a national level—I suppose Parliament can amend the legislation to do that—we'll comply.
However, the problem we would have would be increasing compliance costs. Already with Bill , there are going to be significant compliance costs for third parties between elections. They will have to monitor their online advocacy if they receive a number of funds that total $10,000 or more. That's not a lot of money when they're receiving those donations within the four-year election cycle. Groups that don't even consider themselves third party political advertisers now might fall within the ambit of Bill C-76. That means they'll have to hire an auditor. That costs money. That means they'll have to potentially hire legal counsel for many different things that they wouldn't have had to before. That costs money.
If the intent is to have a robust political discourse in this country, managed by Elections Canada, I don't know that an increase in clients' costs, especially for small third parties, would do it. Certainly, our organization and our sister organizations will comply with the legislation as it's drafted. Provincial privacy legislation already applies to the work that we do. But again, if PIPEDA is extended, it should be extended fairly and to all political actors, including all political parties and candidates. Some of the biggest repositories of personal information in this country rest in all of the political parties' databases, not in third party databases.
Certainly, that's something that's going to be undertaken, I think, by the service provider, be it Google or Facebook. They appear to be going down that road anyway.
The concern for me, again, rests with compliance costs. Do the third parties—I'm not necessarily talking about us, with our large reach, but an individual community group that wants to comment on a political issue—now have to hire a privacy expert, a lawyer, to advise them on these matters? There are some concerns about the compliance costs.
Again, we don't have an issue with complying with the law as it's drafted, but this committee and Parliament should really be aware of the impact that any recommendations from this committee, in conjunction with what has been passed in Bill , subject to royal assent, would cause. There's going to be, I think, a very significant and, I would argue, deleterious impact on very small individual community groups and other individuals who wish to speak on political matters of the day, because now they're going to be required to comply with Elections Canada regulations, potentially regulations emanating from this committee, during the entire election cycle. That doesn't necessarily encourage a robust environment for free speech, in my view.
You have aggregated data. Okay, thank you.
I'm interested in, again, how you're set up. You talk about other third parties. There are environmental and political groups, and they're always identified as political groups, but when Ontario Proud was set up, it was like, “Hey, check out the colours of fall. If you like the colours of fall, click Ontario Proud.” Then it's a campaign of engaging with people who aren't engaged politically.
You send them some nice things about mothers and the fall colours, and then you run headlines like “Scumbag Kathleen Wynne”. That is a kind of misinformation tactic—presenting yourself as just interested in all things Ontario, and then you run this campaign where they say, “That ugly nasty greedy no good money grubbing snot faced witch”; “The ugliest human dyke who ever existed”; and “I'm surprised that no one has shot her but maybe the bullets cost to much”.
When I read that, it really fits into what we heard about Facebook: If something is so far over the line, it gets pulled, but if it gets right up to the line of really aggressive, misogynist hate stuff, it actually peaks, in terms of likes. You can claim that you got more likes than the Toronto Star and the Globe.
Is that the technique, to push it right up to the line, saying, “I'm surprised nobody shot her,” to get the likes to drive your agenda? Is that how you work your algorithm?
I'd like to come back to the reasons that Ontario Proud was founded, and in a comparative sense. We know that Leadnow was founded in 2011, under the direction of Mr. Brandzel. Mr. Brandzel is with the Online Progressive Engagement Network, OPEN, in the United States. He currently lives in Bangalore, India, of all places.
After the 2015 election, Leadnow claimed to have defeated between 23 and 28 Conservative candidates with its political action. It originally banned foreign advertising, but in 2012 it allowed it and has continued to subsidize its campaigns with American funding from a variety of sources.
You said there was a vacuum when Ontario Proud was created in 2016. Were you aware of the way Leadnow had been created and was acting, and of the dynamics of their campaign specifically against the sitting government—a campaign for which their American founder gave them an award for defeating a government?