All democratic states are working to put in place appropriate, relevant and effective legislation to ensure respect for people and the integrity of activities that take place online. Mr. Trudeau’s re-elected government has already shown its willingness to upgrade media laws as well as those targeting serious crimes committed on the Internet. Last week, in his inaugural speech, Prime Minister Legault announced his intention to legislate on cybersecurity and digital citizenship. There is something reassuring about this willingness of governments to abandon their laissez-faire attitude to what happens online.
Contrary to popular belief in some quarters, courts have long recognized that national laws apply to online activities, even if a business has its headquarters or servers abroad. But to take into account the velocity that characterizes networked environments, laws must above all set out principles and objectives to be achieved, and put in place flexible regulatory processes.
Adaptability and flexibility
We must intervene quickly when changes in practices, technologies or markets create imbalances. If the laws are too precise, they will be outdated when the targeted activities borrow other technological vectors. For this reason, laws should not be written around a specific business model or a particular technology. We need laws that are as technologically neutral as possible. For example, the Quebec law of 2001 on the legal framework of information technologies allows the use of all technologies on the condition that the devices used ensure reliable and secure transactions. To do this, the law sets out the results that the technologies must produce, but it is careful not to impose the use of specific tools.
The imperatives of technological neutrality and adaptability require the making of laws that put in place processes capable of anticipating the changing contexts of technologies and of adapting to them. As the Internet is insensitive to territorial borders, laws must also organize cooperation with other countries. National regulatory processes must form part of networks joining States which have converging visions of the values to be protected.
To ensure regulation that is both flexible and adaptable, we need laws written with generic expressions. Rather than attempting 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 sought. For example, a law aimed at ensuring the availability of programs made by Canadians must empower the regulator to put in place requirements for processes, such as algorithms, by which programs are made “discoverable.” »By different audiences. It would be counterproductive to begin to enumerate in the law the measures that are considered necessary today, but which could tomorrow turn out to be obsolete. In short, we must be wary of those who claim laws written in the fashion of yesteryear, riddled with details, exceptions and exceptions to exceptions.
The example of online media
Let us illustrate these issues by taking the example of the changes induced by the Internet with regard to the media. The Yale report on the future of communications in Canada found that communications services will evolve at an ever-increasing rate, and in ways that are unpredictable and unexpected. Hence the urgency to equip oneself to comprehend in a coherent way the emergence of new types of companies and unpredictable and accelerated innovations. Regulatory processes inherited from the XXe century are not necessarily calibrated for an environment that is evolving at such a speed. For these reasons, the Yale report recommends a fundamental rethink of the Canadian Radio-television and Telecommunications Commission (CRTC), the body responsible for understanding and regulating electronic media.
The Yale report explains that, in order to carry out its mission in a changing environment, the CRTC will need to have the means to understand the markets it regulates. It needs to play a greater role in monitoring market behavior and performance. It will need to acquire analytical capacities that reflect the scale of the challenges posed by the media in the connected world. Proactive, the CRTC will have to sift through a vast body of information from multiple sources. Even though all companies must work together to achieve the objectives set out in the law, it is obvious that a platform like YouTube is not regulated in the same way as a radio station. The law should clearly state the objectives and empower regulators to use all relevant means to implement them.
Above all, such a flexible framework should inspire confidence. The CRTC must be made up of expert and independent people. Its decision-making processes must be transparent. The analysis process leading to the implementation of the requirements imposed on companies must take into account the points of view of all the audiences concerned. Its decisions must be based on input from user rights groups as well as the businesses concerned.
Flexible, digital laws must put in place rules adapted to the diversified characteristics of companies operating in networked universes. To forget this is to condemn oneself to repeat debates from a bygone era.