Expert Advisory Group on Online Safety – Terms of Reference
1. Context
The Internet and online platforms help people stay connected, share information with one another and stay informed on important issues. The rise of illegal and harmful content online in Canada requires bold action to protect the most vulnerable and improve the lives of Canadians in our increasingly digital society. The Government of Canada wants to make the Internet a safer and more inclusive place for Canadians.
From July 29 to September 25, 2021, the Government of Canada held a public consultation on a proposed legislative and regulatory framework for harmful content online and released a What We Heard Report on February 3, 2022, outlining the key takeaways from the consultation.
Respondents to the consultation agreed that there is a need for a legislative response to harmful content online. They also supported a number of elements of the proposed framework, including that it would apply to all major platforms; exclude private and encrypted communications and telecommunications services; introduce new transparency and accountability requirements; and include a suite of enforcement tools to address platform non-compliance.
However, respondents identified a number of overarching concerns related to freedom of expression, privacy rights, the impact of the proposal on certain marginalized groups, and compliance with the Canadian Charter of Rights and Freedoms more generally. They called for the Government to reconsider the following: how broad the scope of regulated entities would be and the threshold for inclusion; what content moderation obligations, if any, would be placed on platforms; what types of content would be captured, and how that content would be defined; the proposed compliance and enforcement tools, including the blocking power; and any mandatory reporting of content to law enforcement or preservation obligations.
The feedback generated from the public consultation suggests that a systems-based framework, focused on protocols and procedures, may be more suited to the Canadian context. The Government of Canada is exploring ways to revise certain elements of the framework in this direction, as exemplified in models like the United Kingdom’s statutory ‘duty of care’ approach.
2. Pivoting to a More Systems-Based Approach
A systems-based approach would focus less on the specific content moderation activities that regulated entities undertake, and more on the systems, tools, and approaches they have in place to address illegal and harmful content. It would be organized around a ‘duty of care’, such that regulated entities would have a duty to act responsibly when it comes to harmful content online and would be required to take reasonable steps to introduce tools, protocols and procedures to mitigate foreseeable harms arising from the operation and design of their services.
The legislation could establish a duty of care broad in scope along the lines of a responsibility to take reasonable steps to mitigate foreseeable harms arising from the operation and design of their services.
The revised framework would include the following core components, and each of these would be the focus of a worksheet and workshop session for the expert advisory group. The components include:
Setting out which online services should be regulated, and to what extent;
Establishing how ‘harmful content’ would be defined and regulated;
Identifying a set of obligations and requirements for regulated entities to monitor, moderate, and manage harmful content on their services;
Setting the inspection and audit toolkit of a Digital Safety Commissioner to monitor compliance and enforcement tools to ensure regulated entities live up to their obligations;
Laying out reasonable linkages to authorities in the case of harmful content that might pose an imminent risk of harm to Canadians;
Identify programming and policy responses that could be included in the framework to confront disinformation and build civic and media literacy and resilience; and
Ensuring the inclusion of elements that protect freedom of expression and privacy rights.
3. Purpose
The Government is seeking to form an expert advisory group to generate advice on a revised legislative and regulatory framework for harmful content online. The advice will be generated through a series of workshop sessions, written submissions, and engagement with stakeholders.
The expert advisory group will not be tasked with writing the legislation itself. It will instead provide advice and feedback on design elements of an effective legislative and regulatory framework for addressing harmful content online, which will feed into the development of legislation.
4. Expert Advisory Group Composition
The expert advisory group will be made up of 12 participants. It will include experts from diverse backgrounds with experience on issues relating to platform governance and content regulation, online harms, civil liberties, tech regulation, and national security.
5. Overview of Expert Advisory Group Participation and Mandate
The expert advisory group will meet weekly for a period of 9 to 12 weeks, beginning the week of March 28, 2022, and concluding in June 2022, for a minimum of nine workshop sessions. Additional sessions could be planned as warranted by the discussion.
The expert advisory group will have two co-chairs throughout the duration of the engagement process. The two co-chairs, whom are selected from the expert advisory group, would have a mandate to frame the issues for discussion during the workshops.
Modules may be supported by a facilitator to help organize and streamline the discussion and input. Support will be provided by officials from the Departments of Canadian Heritage, Justice, Public Safety and Innovation, Science and Economic Development.
Expert advisory group sessions will be composed of the following topics:
Introductory Session
Subjects of Regulation
Objects of Regulation
New Rules and Obligations
Design of Regulatory Machinery, Compliance, and Enforcement
Connection to Law Enforcement
Connection to Disinformation
Freedom of Expression and Other Human Rights
Closing Session
Participation in the expert advisory group will be largely done remotely, with workshop sessions and stakeholder engagements conducted virtually. If there is to be any in-person participation, it will include attendance and participation in the launch of the expert advisory group and its conclusion.
Worksheets and other supporting materials will be made available to the expert advisory group in advance of each session to support the discussion and organize feedback and input. These worksheets will be made public after each engagement session.
Each worksheet will have a set of questions, to which expert advisory group members will be asked to submit written responses to officials in advance of each session. Experts may also update or supplement their written views subsequent to the workshop discussion. A non-attributed summary of these submissions will be prepared by officials and published weekly, concurrently with the worksheets, to streamline discussions during the workshops and to help conduct the work in a transparent manner.
Experts in the advisory group should share their thoughts, concerns and questions with other expert advisory group members prior to sessions on the scheduled topics in order to optimize workshop time, identify synergies, and help surface points of disagreement.
The expert advisory group may take part in additional outreach and engagement sessions with key stakeholders in content regulation subsequent to the workshop sessions. Officials will provide the expert advisory group with a proposed list of key stakeholders to be engaged and the expert advisory group will be encouraged to provide recommendations on which appropriate groups or stakeholders should be consulted.
In discussions with officials, the expert advisory group may decide to adapt the proposed workplan.
6. Intended Outputs
The objective is for the expert advisory group to provide their best collaborative advice to the Government of Canada so that the Government may develop legislation on online safety.
Officials will take audio recordings of the sessions for internal note-taking purposes, review written submissions, and summarize high-level insights and recommendations that arise from these discussions. Recordings will be stored and disposed of in accordance with the records management policies of the Government of Canada.
The worksheets developed by officials as a discussion guide for each engagement session will be published weekly for public consumption following each session, as well as de-identified summaries of written submissions from the expert advisory group. The worksheets and summaries of written submissions will be published in order to: (1) share the process and substance of the sessions with the public and other stakeholders; and (2) position and support expert advisory group members to discuss what was said with peers and stakeholders in parallel to the workshop sessions, without attributing comments to other participants.
Following the conclusion of the expert advisory group itself, PCH would also publish a summary compilation of the worksheets and the written answers received from expert advisory group members, without attribution, for public consumption and to inform the design of the legislative and regulatory framework.
7. Confidentiality
The Government will conduct a transparent and productive expert engagement process whereby: participants are able to openly and productively contribute their views; the broader public is aware and engaged in the materials and perspectives discussed; and the Government has reasonable flexibility to come to ground on an overall approach. The confidentiality elements of this document are designed in that spirit.
Expert advisory group members will sign an Amended Chatham House Rule and Confidentiality Declaration once they agree to be a participant in the engagement process. This declaration includes two parts.
The expert advisory group agrees that discussions during the workshop sessions and subsequent engagements with stakeholders will operate under the Chatham House Rule to foster open discussions and allow expert advisory group members to express their views without attribution.
Expert advisory group members agree not to disclose any written documents developed by other expert advisory group members or the Government of Canada related to the engagement process to address harmful content online.
Experts will be encouraged to engage with issues and topics discussed in the conduct of the expert advisory group, be they the views of the Government of Canada or of other participants, so long as these are done without attribution. While respecting the Chatham House Rule and the confidentiality of other participants, experts will be encouraged to engage with stakeholders to bring valuable perspectives to the table.
8. Compensation
An expert advisory group participant will be compensated with a series of payments with the total not exceeding $27,000 plus tax for participation in the nine (9) planned workshops, stakeholder engagement, possible additional workshop sessions, and any travel related expenses the baseline schedule for distribution of payment is:
First payment of $1000: Within 30 days after the launch session
$1,000 for participation in the launch session
Second payment of $6,000: Within 30 days after completion of the first four workshop sessions
$1,500 per session ($1,000 for participation in the session, $500 for the pre-session work) x4 = $6,000 total)
Third payment of $7,500: Within 30 days after completion of the second five workshop sessions
$1,500 per session ($1,000 for participation the session, $500 for the pre-session work) x5 = $7,500 total)
Fourth payment of up to $7500: Within 30 days after completion of the final stakeholder meeting
The amount paid per stakeholder meeting will be determined by the Minister and will depend on the total number of planned stakeholder meetings and the participant’s level of participation. The participant is to submit a planned schedule of stakeholder meetings and/or roundtable discussions to Michel Sabbagh via email at michel.sabbagh@pch.gc.ca specifying the number of stakeholder meetings and their level of participation prior to any engagement. The maximum payment for all stakeholder meetings will not exceed $7500 plus tax. The Minister has no obligation to organize any stakeholder meetings.
Fifth Payment
Should there be additional expert advisory group workshop sessions planned, the expert will be compensated at a rate of $1,500 per session. The maximum payment for additional advisory group workshop sessions is not to exceed $3000 plus tax.
Travel related expenses of up to $2000: Within 30 days after the Minister approves the documentation for travel related expenses
Travel related expenses approved by the Minister and not exceeding $2000.
Payments will be tied to the participation in the workshop sessions the submission of written responses in advance of each session and the participation at a minimum of 1 stakeholder meeting.
Compensation for travel, attendance and participation in the launch of and/or conclusion to the engagement process will be made in accordance with standard rates established in the National Joint Council Travel Directive. Approved Travel Authorization is mandatory prior to booking and/or making any travel arrangements.
Experts will be required to sign contracting agreements and the Amended Chatham House Rule and Confidentiality Declaration provided by the Department of Canadian Heritage prior to their participation in the engagement process.
