Currently, there does not appear to be any law in Canada that prohibits the dissemination of incorrect information unless that information is defamatory, covered by libel laws, or within the ambit of Canada’s broadcasting regulations. Section 181 of Canada’s Criminal Code prohibits the spreading of false news, but that provision was declared unconstitutional in 1992 by the Supreme Court of Canada. No information was found specifically on fake legal news. The government provides a variety of official online sources of legal information that are publicly accessible, however.
Canadian lawmakers have been grappling with the issue of fake news and considering policy options in the aftermath of the 2017 mosque shooting in Quebec City. According to one news report, “[f]alse information about the suspects in [that shooting] circulating on the internet has raised new questions about how to fight the explosion of ‘fake news.’ ”
A national survey conducted by Nanos Research for the organization Canadian Journalists for Free Expression (CJFE) found that “[m]ore than eight in ten Canadians agree or somewhat agree that search engines like Google should be forced to remove search results related to a person’s name when they are inaccurate, incomplete, or outdated and that fake news is making it more difficult to find accurate sources of information. More than seven in ten Canadians agree or somewhat agree that government regulation is needed to prevent the proliferation of fake news.”
Canadian MPs and the federal Privacy Commissioner have shown great concern over the role of Facebook and the dissemination of fake news, as reflected in this excerpt from an article in The Guardian:
“What we want to hear from Mark Zuckerberg directly, is his response to the data breaches in Canada . . . and also the response to how they’re going to handle fake news in the future,” Bob Zimmer, chair of parliament’s access to information, privacy and ethics committee, told reporters. He said the government is “deeply concerned” about the effect Facebook has on democracy and the extensive control it has over data and advertising.
In September, the privacy commissioner said it would investigate Facebook over the harvesting of user data. “The digital world, and social media in particular, have become entrenched in our daily lives and people want their rights to be respected,” the commissioner, Daniel Therrien, said in a statement.
On February 9, 2018, Prime Minister Trudeau warned Facebook that it needed to fix its “fake news” issues or face stricter federal regulations.
II. National Approach to Countering Fake News
A. Policy Framework
In February 2018 Global News reported that
“[t]he federal government doesn’t believe it can do much on its own to stem the growing tide of fake news in Canada, according to briefing notes prepared for Canadian Heritage Minister Melanie Joly.
The documents, obtained by The Canadian Press through an access-to-information request, highlight that even though the government recognizes that fake news could threaten Canada’s democratic institutions at a time when traditional news outlets are facing cutbacks and financial challenges, there’s not much they can do to stop it.
The government’s inability to decide for Canadians what should and shouldn’t be considered fake news is one reason it can’t take direct action, according to the briefing notes, prepared in November by deputy Heritage minister Graham Flack.
Even if the government did attempt to publicly identify fake news stories, Flack said it could backfire, making readers more convinced the stories are true and increasing the likelihood they’d share the stories.
Overall, the briefing notes concluded that the role of combating misinformation should not rest on the government’s shoulders alone and that “there is not likely one single, easy solution”
B. Legislative Framework
Currently there does not appears to be any law that prohibits “the dissemination of incorrect information unless it is defamatory and covered by libel laws.” Section 181 of Canada’s Criminal Code prohibits the spreading of false news:
Spreading false news
181 Every one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
However, in R v. Zundel (1992), Canada’s Supreme Court held that the offense is unconstitutional as it violates section 2(b) (freedom of expression) of the Canadian Charter of Rights and Freedoms. The section therefore appears to have no legal effect or force and the government appears to be in the process of removing this “zombie” provision.
Canada has other laws that may be relevant to fake news that have been outlined by Canada’s Department of Justice as follows:
- The hate propaganda provisions in sections 318 and 319 of the Criminal Code can be used to deal with false news that promotes hatred.
- The defamatory libel provisions in section 300 of the Criminal Code prohibit people from knowingly publishing false information that has been designed to insult or that is likely to harm the reputation of someone.
- Federal regulations such as section 8(1) of the Broadcasting Distribution Regulations prohibit radio and television broadcasters from broadcasting false or misleading news and abusive comments that are likely to expose persons to hatred based on listed grounds.
- Some provincial laws, such as section 14 of Saskatchewan’s Human Rights Code, prohibit publications that are likely to expose groups to hatred.
- Some provincial laws provide civil means to deal with libel of racial, religious or other groups (for example, section 19 of Manitoba’s Defamation Act).
- Various codes of practice direct certain professionals not to propagate false news or hate propaganda (for example, the Canadian Association of Journalist’s Ethics Guidelines).
Federal broadcasting regulations issued under the Broadcasting Act that deal with false or misleading news include the following:
- section 8(1)(d) of the Broadcasting Distribution Regulations;
- section 3(d) of the Radio Regulations, 1986; [and]
- section 5(1)(d) of the Television Broadcasting Regulations, 1987[.]
Generally “these provisions prohibit licensees of radio and television programming undertakings and broadcasting distribution undertakings from broadcasting programs that contain false or misleading news.”
In 2011 the Parliament’s Standing Joint Committee for the Scrutiny of Regulations (SJC), citing the SCC’s Zundel judgment, raised concerns over whether the “existing false or misleading news provisions might not be in keeping with the freedom of expression provision under section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter).” To address these concerns, the Commission proposed “to amend the relevant provisions such that the above-noted prohibition would be narrowed to ‘news that the licensee knows is false or misleading and that endangers or is likely to endanger the lives, health or safety of the public.’ ” According to one news report,
[t]he proposed change sparked concerns that the CRTC was about to allow into Canada the more toxic — often grossly distorted — political discourse that pervades the American airwaves. Those suspicions were fuelled by the timing of the proposal, only weeks before next month’s launch of a new, right-leaning all-news network, Sun TV.
In March 2011, the Commission received a letter from the SJC “in which it informed the Commission that it no longer saw the Zundel judgment as an impediment to the continued application of the current regulations” and the Commission announced “that it will not amend the false or misleading news provisions set out in various Commission regulations.”
In 2017, the Federal Heritage Committee published a report on the changing media landscape in Canada that noted the problems with fake news and observed the lack of guidelines for digital media. The Committee recommended that “the vigilance of existing ethics guidelines and press councils must apply equally to digital media.”
The Standing Committee on Access to Information, Privacy and Ethics published a report in which it stated that “changes to Canada’s legislative and regulatory landscape are needed in order to neutralize the threat that disinformation and misinformation campaigns pose to the country’s democratic process.”
In December 2017 Canada passed an omnibus bill that amended the Canada Elections Act and other Acts to modernize its election laws. Among the changes included was “a provision that makes it an offence to make false statements about a candidate for the purpose of influencing the outcome of an election.” However, according to a news report, “that provision applies quite narrowly to false statements about whether a candidate has broken the law or withdrawn from the election, as well as about a candidate’s citizenship, place of birth, education, professional qualifications or membership in a group.” The provision states as follows:
Publishing false statement to affect election results
91 (1) No person or entity shall, with the intention of affecting the results of an election, make or publish, during the election period,
(a) a false statement that a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party has committed an offence under an Act of Parliament or a regulation made under such an Act — or under an Act of the legislature of a province or a regulation made under such an Act — or has been charged with or is under investigation for such an offence; or
(b) a false statement about the citizenship, place of birth, education, professional qualifications or membership in a group or association of a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party.
(2) Subsection (1) applies regardless of the place where the election is held or the place where the false statement is made or published.
Publishing false statement of candidate’s withdrawal
92 No person or entity shall publish a false statement that indicates that a candidate has withdrawn.
In January 2019, the federal government announced that it will implement a series of new measures aimed at “further shoring up Canada’s electoral system from foreign interference, and enhancing Canada’s readiness to defend the democratic process from cyber threats and disinformation.” One of the measures was to establish a “Critical Election Incident Public Protocol” that will “monitor and notify other agencies and the public about disinformation attempts. That task force will be led by five non-political officials and is an addition to a ‘rapid response mechanism’ housed within the Department of Foreign Affairs.”
III. Accuracy of Legal Information
No information was located on Canada’s efforts to deal with specifically fake legal news. However, Canada does provide a range of official, online sources of legal information that are accessible to the public.
The Justice Laws Website provides an “official consolidation, or updated version, of the federal Acts and regulations,” which is maintained by the Department of Justice as a “convenient way for the public to view the state of the law, without having to carry out research and put together the various amended provisions.” As of June 1, 2009, “all consolidated Acts and regulations on the Justice Laws Website are ‘official’, meaning that they can be used for evidentiary purposes.” According to a note from the Department of Justice Canada,
[a]mendments made to the Statute Revision Act, renamed the Legislation Revision and Consolidation Act by chapter 5 of the 2000 Statutes of Canada, in force on June 1, 2009, authorize the Minister of Justice to publish an electronic consolidation of statutes and regulations and provide that the consolidation is evidence of those statutes and regulations. The Act also provides that, in the case of an inconsistency between the consolidated statute or regulation and the original or a subsequent amendment, the original or amendment prevails.
In 1994, the Supreme Court of Canada began collaborating with the Université de Montréal’s research team Lexum, “to make judgments, news releases and bulletins available on the Internet free of charge. The Judgments of the Supreme Court of Canada by Lexum continues to be the main public source for judgments, news releases and bulletins.” According to the Department of Justice website, “[w]ith the exception of the Canadian Charter of Rights Decisions, the Department does not publish court decisions. The Lexum Collection provides free access to all of the Supreme Court of Canada decisions since 1907, while the Office of the Commissioner for Federal Judicial Affairs provides access to Federal Court decisions.” Lexum’s website states that
[t]he official version of a Supreme Court of Canada decision is the one published in the S.C.R. Counsel may cite either the print or the PDF version of the S.C.R. in documents filed with the Supreme Court of Canada, and both versions should be cited in the same way. The official versions of decisions and reasons for decisions of the Supreme Court of Canada are published in the Supreme Court Reports (S.C.R.). An electronic version can be found in the “Resources” section.
The Canada Gazette is the official newspaper of the Government of Canada. It contains “new statutes, new and proposed regulations, administrative board decisions and public notices.” The public can read or browse editions published since 1998 and access archives of gazette editions from 1841 (when the official publication began) to 1997.
Prepared by Tariq Ahmad
Foreign Law Specialist
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 Harris, supra note 1.
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 Broadcasting Regulatory Policy CRTC 2011-308, supra note 13.
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 Not Much Elections Canada Can Do about Fake News Spread about Candidates, National Post (Feb. 7, 2019), https://nationalpost.com/pmn/news-pmn/canada-news-pmn/not-much-elections-canada-can-do-about-fake-news-spread-about-candidates, archived at https://perma.cc/YY44-Z7RT.
 Canada Elections Act§§ 91 & 92.
 Rachel Aiello, Feds Unveil Plan to Tackle Fake News, Interference in 2019 Election, The Star (Feb. 8, 2018), https://www.thestar.com/news/canada/2018/02/08/trudeau-to-facebook-fix-your-fake-news-problem-or-else.html, archived at https://perma.cc/ZCF9-WN87.
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Last Updated: 12/30/2020