Regulator needed to deal with tech-facilitated gender violence: report

Canada should establish a centralized expert regulator for technology-facilitated gender-based violence, abuse and harassment (TFGBV), as current legislation fails to protect historically marginalized communities, according to a report published Wednesday by the Women’s Legal Education and Action Fund. The report, authored by technology and human rights lawyer Cynthia Khoo, highlights the needs to hold platforms accountable for the harms inflicted on women, with laws that take intersectionality into account, reflecting "impacts on those who belong to more than one historically marginalized group, and are thus subjected to uniquely intersecting forms of systemic oppressions," such as women of colour and members of the LGBTQ+ community. Technology-facilitated gender-based violence, abuse and harassment "ranges across such a broad spectrum of activities, and so it includes things like daily annoying tweets of somebody harassing you based on your gender identity or sexual orientation, for example, all the way up to activities that are already criminal or civil offences in Canadian law,” Khoo said in an interview with the Wire Report. “So one of the challenges is trying to figure out -- because platforms facilitate all of it -- how do you best approach it.” Some activities that fall under the umbrella of TFGBV, as defined by Khoo’s research are doxxing, non-consensual distribution of intimate images (NCDII), stalking, sextortion, online mobbing, spying, voyeurism, trolling, hate speech, threats, and impersonation. Some issues, like NCDII, might find a clearer path in the law, Khoo said. For example, if it can be proven that a website exists purely to show and distribute non-consensual images then it and its users can be held liable under the pre-existing criminal offence. The developing laws or policies become murky at the other end of the TFGBV spectrum, as with harassment tweets, where acts are not necessarily unlawful -- “nor should it necessarily be -- we're balancing with special concerns,” Khoo said. At that point, Khoo said, the government should look toward education, prevention and holding social media platforms accountable. “The platform's algorithms, policy decisions, and content moderation decisions give rise to cultivating this environment that is disproportionately hostile to the historically marginalised, including women and racialized communities," Khoo said. "That mounts to a level of justification to start holding them accountable for their role, because then you're not looking at individual users, you're looking at the critical mass of users together and what the platform enables them to do.” The federal government is currently updating its Broadcasting Act, through Bill C-10, which brings social media platforms into the act to some extent, but still excludes everyday uses. There is also upcoming legislation to deal with online harms which will likely bring in individual users. However, Khoo said neither bills will suffice. “I would want to stay as far away from Bill C-10 as possible. I think it's a terrible piece of legislation,” Khoo said. She explained that historically marginalized groups (for example, queer artists or sex workers who are posting about sex education) are “overly censored and aggressively moderated” by platform companies whose “automated moderation systems are bad at distinguishing nuance between something that is sexualized in a way that violates terms of conduct and something that just simply has to do with sex, maybe in health or education way”. “What C-10 would do would just completely strengthen that over-moderation of expression, because if you're going to force social media companies to regulate user expression across the board, then it's going to be an expression of historically marginalised groups who bear the brunt of that over-enforcement," Khoo said. "At the same time we're not seeing anything that would effectively address online violence, abuse and harassment.” She also noted that the proposed online harm bill is “problematic” because the government has not properly consulted with stakeholders or made the text of the bill public; and that it is based on “content that is already illegal” which “ignores the huge swaths of online abuse that would not currently meet the test for being illegal activity, yet still have a devastating impact on women, girls, and survivors.” She also noted that the online harms bill is proposing to deal with several issues in one piece of legisalation, gender violence but also terrorism, which should be separated. “What is appropriate to address NCDII online is probably not the same thing that you want to use to address terrorist content online. And so it's really concerning that they would be bundled together in the same bill because it seems like you're just setting up that framework for failure and you’re not helping the vulnerable at the end of the day.” Most notable of the 14 recommendations in the report is a call to establish a centralized expert regulator for TFGBV, with a mandate to provide legal remedy and support to individuals impacted by that violence, including regulatory and enforcement powers. The report suggests the regulator could handle dispute resolutions -- both for users contesting a platform's decision to remove their content and for individuals contesting a platform's decision to keep content up. The report noted this is particularly important so victims and survivors would not have to go to law enforcement. It would also have the power to take down NCDII’s without a court order. The regulator would also have a mandate to educate and provide training to the public and industry stakeholders on TFGBV because “this area is so complex and so nuanced, it cuts across human rights law, technology law, telecom law, copyright, civil law, and human rights law,” Khoo said. “We don't want it to address disinformation, electoral interference or copyright for example because these are all separate issues and by bundling them together they will only jeopardise the regulatory regimes that would be effective to address those specific set of harms that might not work for other types,” she said. Khoo said ”there's no particularly appealing option right now” for which ministry this new regulatory body would fall under. -- Reporting by Jenna Cocullo at jcocullo@thewirereport.ca, editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca.

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Regulator needed to deal with tech-facilitated gender violence: report

Broadcast | April 30, 2021

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