Barely a week goes by without some kind of tech scandal — whether it’s Amazon’s surprise Valentine’s Day decision to pull out of its planned New York City headquarters, or last week’s scathing report on disinformation and fake news from the U.K. Parliament that accuses companies like Facebook of behaving like “digital gangsters.”

The global tech-lash is growing. At the same time, the products and services offered by the tech giants remain incredibly popular. They have become crucial parts of our economy and increasingly integrated into all aspects of our daily lives.

As jurisdictions such as European Union pull ahead with cutting edge, if sometimes controversial, legislation to regulate the companies and protect citizens, Canada hasn’t completely caught up.

Countries around the world are grappling with how to rein in the tech giants, particularly the so-called “Big Five” of Apple, Google parent company Alphabet, Amazon, Facebook and Microsoft. Here’s a look at what they’re doing, and how Canada stacks up.

Privacy

The issue:

For Ann Cavoukian, former Information and Privacy Commissioner of Ontario, privacy comes down to control.

“Personal control over the use of your data, when it’s disclosed, how it’s used. You should be the one in control,” says the distinguished expert-in-residence at Ryerson, who leads the school’s Privacy by Design Centre of Excellence

Practically it’s about tech giants collecting and selling our data to third parties without our consent, she adds. This has been exposed in a slate of recent scandals, from the discovery of a microphone built into Google’s Nest Secure home security system, to tracking by Google services on Android devices and iPhones even when privacy settings are turned on.

She singles out Facebook and Google as particularly being a concern.

“They have created a state of surveillance,” she says.

Amazon is not as bad but there are still concerns, she adds, like with their controversial facial recognition technology, Amazon Rekognition. The company’s own shareholders urged Amazon not to sell it to governments, fearing potential human rights abuses.

Microsoft and Apple deserve more credit, she says, and their CEOs have both made public commitments to privacy.

That’s because companies like Apple are selling a physical product, unlike Facebook and Google, says Avner Levin, a professor at the Ted Rogers School of Management, Law and Business Department.

“The people that are using the service are the product that is actually being sold to advertisers,” he says, referring to Facebook and Google.

“We are the product that they are selling.”

Privacy is linked to wider issues like fake news, and the weakening of democratic institutions, he adds. This was illustrated in the 2016 U.S. election campaign, when Russians deployed targeted information to manipulate social media users.

What others are doing:

In the U.S., the Federal Trade Commission, is currently investigating to see if Facebook violated a 2011 “consent decree,” that said they would address concerns about the tracking and sharing of user data, Cavoukian says. Facebook could face a hefty fine if found to be in breach of this order.

But the “gold standard” for privacy legislation is the EU, says Levin. The EU passed the comprehensive General Data Protection Regulation, in 2016.

The legislation includes hefty fines (up to 4 per cent of a company’s global revenue or €20 million, whichever is greater). It also has strict language on consent, the concept of privacy by design, and the right to be forgotten, under which individuals can apply to have negative search results deleted.

Similar laws have been passed in Japan, Brazil and California, Cavoukian says, and there’s discussion in the U.S. about national legislation.

What Canada is doing:

Canada is in “a significantly weaker situation than the EU,” says Andrew Clement, professor emeritus in the Faculty of Information, at the University of Toronto.

The federal Personal Information Protection and Electronic Documents Act (PIPEDA) was developed in 2000, before Facebook and smartphones, and lacks the “fining powers” of the EU law.

“There appears to be more willingness in the EU to use existing powers for bringing the tech giants to account,” he says.

Levin says there’s been an “absolute lack of will,” on the part of both the Trudeau and Harper governments to do anything about privacy.

In 2012 in response to complaints, the federal privacy commissioner did an investigation into Facebook. But the office doesn’t have the “power to force Facebook to do anything,” he says.

The EU, influenced heavily by the Germans, is more attuned to the dangers of a loss of privacy, given their history of totalitarian governments.

“They’re a lot more willing to regulate the companies, they’re a lot more worried about the consequences,” he says.

But Cavoukian is optimistic that Canada can catch up.

In 2018, the federal Standing Committee on Access to Information, Privacy and Ethics issued a report entitled “Towards Privacy By Design,” which she believes shows a “clear intent” to enhance the law.

May Warren

Disinformation

The issue:

In recent years, the world has rudely awakened to the proliferation of hate speech and “fake news” on social media — especially during election cycles, when online content can be used to disrupt democratic processes.

Regulators and social media companies have come under pressure to stem the flow of online hate speech and malicious “disinformation.” But these are complicated problems with no easy fixes; the sheer volume of harmful content online is overwhelming and the notion of regulating speech will always provoke free speech concerns while drawing fierce opposition.

And while some countries have legal definitions for hate speech, defining “fake news” is a tricky proposition; it can also be a dangerous one, especially in the hands of authoritarian regimes that want to censor information or crack down on the free press.

Regulators have struggled to find workable solutions. “No one’s figured it out,” says Heidi Tworek, an assistant professor of history at the University of British Columbia who studies media, democracy and the digital economy. “We continue to have to really evaluate many of these different schemes that are being proposed. These are such large and complex questions.”

What others are doing:

Several European countries are now moving toward regulating social media platforms, deploying strategies that have drawn both criticism and praise. In France, the government passed a law in November that empowers judges to order the removal of “fake news” during elections; violators face a penalty of one year in prison or a €75,000 fine.

In the United Kingdom, a new parliamentary report — released this week following an 18-month investigation — is also calling for platforms like Facebook to be brought under regulatory control. The report proposes several new regulations, including a mandatory code of ethics and independent regulator who can bring legal proceedings against social media companies.

Germany has taken a particularly bold approach to regulating hate speech on social media. In January 2018, the country passed its Net Enforcement Act — sometimes dubbed the NetzDG or “Facebook law” — which forces tech companies to remove hate speech within 24 hours of illegal content being reported. (When it’s unclear whether content is actually illegal under German law, tech companies have seven days to consult and decide.)

The penalty for breaking this law? Up to €50 million in fines. “This is probably the furthest anyone has gone in trying to get large social media companies to adopt their policies to local laws,” Tworek says.

What Canada is doing:

“Canadians, and the Canadian government, are alive and alert to the issues,” says Dwayne Winseck, a journalism professor at Carleton University and director of the Canadian Media Concentration Research Project.

He points to Canada’s recently-passed electoral reform bill, C-76, as a positive step. Online platforms like Facebook and Google must now create a registry of digital advertisements placed by political or third parties during elections and ensure they remain visible for two years. The law also bans the use of foreign money by “third party” advocacy groups during campaign periods — meaning social media companies can’t knowingly accept advertisements paid for with foreign funds.

Another provision prohibits making false statements about a candidate to influence an election. This only applies narrowly to certain types of statements, however (for example, statements about whether a candidate has broken the law or their place of birth).

In January, the federal government unveiled plans for safeguarding the upcoming election, including a $7 million initiative to improve the public’s ability to detect “online deceptive practices” and a team of five bureaucrats who will alert the public whenever they find evidence of election interference.

But where Canada could be innovating more is with social media regulation more generally, says journalist Chris Tenove, a PhD candidate at the University of British Columbia who studies global governance and digital politics.

He would like to see Canada follow the lead of jurisdictions like the European Union, which worked together with social media companies to develop a code of conduct. As a result, platforms have voluntarily committed to “quickly and efficiently” addressing hate speech and early reports have shown good results, he says.

One promising spot is Canada’s involvement with an international effort called the Grand Committee on Disinformation and Fake News. Comprising parliamentarians from nine countries, the committee is scheduled to meet in Ottawa this May and has called for social media executives — including Facebook’s Mark Zuckerberg and Google CEO Sundar Pichai — to appear so they can explain what they’re doing to stop the spread of disinformation.

Jennifer Yang

Taxation

The issue:

In the mid 1980s, when Canada’s GST was still a twinkle in then prime minister Brian Mulroney’s eye, the World Wide Web had not yet been invented and Google’s founders were still pre-teen boys. Since then, digital technologies have advanced at breakneck speeds and companies like Google — not to mention Facebook, Apple, Microsoft and Amazon — have become essential to how Canadians spend their time and money.

They have also been reaping billions in profits. Tax codes, meanwhile, have evolved more slowly and governments are now grappling with how to bring their taxation systems into the digital age.

“There is a missed opportunity for taxing these companies,” says Rosalie Wyonch, a policy analyst with the C.D. Howe Institute. “Digital technology has been outpacing our ability to regulate (and) tax.”

Traditionally, tax systems were dependent on the idea of “permanent establishment,” Wyonch explains — this assumes a company has a physical presence within a country, or relates to physical goods crossing borders. But “our tax code hasn’t been updated to deal with intangibles,” she says.

Yet as digital services become more popular, the potential losses in sales tax revenue grow bigger, says University of Ottawa law professor Michael Geist, the Canada Research Chair in Internet and E-commerce Law. (In 2017, Wyonch wrote that if Netflix alone were to collect and remit GST/HST, this would inject $50 million per year into Canada’s tax coffers).

Meanwhile, domestic companies — which do have to collect and remit sales taxes — argue they are left at a competitive disadvantage, Geist adds.

When it comes to taxing corporate income, global discussions are now underway to figure out how this should be handled when it comes to big tech. “That is a very complex international system, that we’re waiting for consensus on,” according to Wyonch.

There are major challenges when it comes to simply defining the income of digital companies, she says. Say a foreign company does a digital marketing campaign for a Canadian company. “Did they earn that income where they’re located, or did they earn that income in Canada, if they never entered Canada (or) hosted any of its content on Canadian servers?” Wyonch asks. “We don’t have a clear way to define, in a black and white way, what would — and would not — be considered Canadian income.”

What others are doing:

The G20 and Organisation for Economic Co-operation and Development (OECD) have set a 2020 deadline for fighting tax avoidance (which tech giants are frequently accused of) and developing international standards for taxing big tech. But several countries — like the U.K., France, Spain, Australia, and New Zealand — are already considering interim measures, raising concerns of creating a hodgepodge of different approaches around the world. The European Union has also unveiled plans for a digital tax of three per cent of revenues, an idea that has received blowback, including from some member states.

What Canada is doing:

Finance Minister Bill Morneau told reporters last October that Ottawa is studying whether a new regulatory landscape is needed for the digital economy and he is pushing the G20 to speed up its timeline for establishing new rules. But Morneau says Canada’s goal is to wait for an international consensus before taking action.

Quebec and Saskatchewan, however, have forged ahead on the sales tax issue and this year, both started applying provincial sales taxes to foreign digital companies. In Quebec, more than 80 international companies — including Amazon, Apple, Google and Netflix — were registered as of Feb. 18 to collect and remit provincial sales tax in that province.

Jennifer Yang

Competition

The issue:

The rise of a short list of dominant tech companies has put reform of traditional notions of competition law at the top of the agenda for policy-makers around the globe.

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Modern competition law holds that when companies control large market shares, the result is higher prices and lower quality. It does not, however, make a monopoly illegal, prohibiting only the abuse of the power that a monopoly makes possible through exclusionary practices.

Experts say practices such as a company giving its own products top ranking in its online search engine have been given a boost by so called big data — the corporate accumulation of massive data sets that are automatically processed through computer algorithms and artificial intelligence. Big data could pose competitive threats by allowing exclusive licensing deals for critical data sets, for example, says Ariane Le Strat, a U.K.-based associate with international law firm Bird & Bird, or companies could agree to price-discriminate — charge more to certain people based on their perceived ability to pay — as a result of customer data they have obtained.

The public outcry over the misuse of personal data after the Cambridge Analytica scandal early last year when it was revealed that Facebook had harvested personal information for political purposes without consent ratcheted up the pressure on regulators, Le Strat says, with the U.S. among others vowing vigorous antitrust enforcement in the area.

What others are doing:

The European Union has taken the lead in enforcing stricter laws aimed at tech companies suspected of wilfully abusing their market dominance.

Its competition directorate, for example, has imposed heavy sanctions in cases where it has alleged market abuse by technology giants, including the €2.4 billion fine levied against Google in 2017 for privileging its own products in search results. The European Union has also taken dramatic steps against Microsoft, now requiring its ubiquitous Windows operating system to enable a variety of web browsers.

Germany’s competition watchdog has ordered Facebook to curb its data collection excesses and is investigating Amazon after complaints from third-party sellers that their business was being hurt by the company’s dual role as both a retailer on its Amazon Marketplace and the platform’s owner/operator. The European Commission’s competition watchdog is probing whether Amazon gains unfair advantage from the data it collects via transactions on the an e-commerce platform.

Against this backdrop some consumer advocacy groups have called for a breakup of the big U.S. tech companies similar to the tearing asunder of the U.S. Bell system in the 1980s — or at the very least an overhaul of competition statutes to address the new threats from the tech giants’ market dominance.

What Canada is doing:

Canada has maintained that while the emergence of firms that control and exploit data can raise new challenges for competition law enforcement, “this is not in and of itself cause for concern,” according to the Competition Bureau.

In a February 2018 report, the bureau concluded that while “big data may require specific methods and tools, the bureau’s traditional enforcement framework will continue to apply.”

The report says data tools that analyze and adjust to changes in the conduct of consumers and competitors may “soften competition” but this is really just an extension of practices that companies used before information technology was developed.

Moreover, it says conscious parallelism (where firms in an oligopoly are aware that their pricing and output decisions have a significant impact upon rivals and without an explicit agreement co-ordinate their behaviour as if they were engaged in collusive behaviour) is not by itself prohibited under Canadian competition law.

“For competition law enforcement in Canada,” according to Sandy Walker, a competition law partner at Dentons in Toronto, “it’s déjà vu for now.”

Michael Lewis

Addiction

The issue: This is a newer area, and there’s no scientifically established condition of social media or smartphone addiction.

There are however “problematic behaviours” associated with the technologies that are similar to the ones found in recognized addictions to drugs, alcohol or gambling, such as not being able to cut back on use, says Centre for Addiction and Mental Health senior scientist Dr. Robert Mann.

Mann says a 2016 CAMH survey of adults found 40 per cent said yes to at least one of a number of questions such as whether screen habits had ever caused the respondent to miss school, work, or important social activities, or whether a family member had ever expressed concern.

Eight per cent of respondents said yes to three or more of the questions.

Matthew Johnson, director of education at digital literacy non-profit, MediaSmarts, wouldn’t call it an addiction either. But he has heard of serious problematic behaviours especially among young people using apps or social media sites that seem designed to keep them coming back.

Snapchat streaks, where kids keep sending Snapchats to their friends every day to keep their streak and earn a flame icon, even if it means missing sleep, are one example.

Benjamin Wong, a registered clinical counsellor in behavioural addictions in B.C., says he’s seen about a five-per-cent increase over the last five years in people with screen or tech issues. He believes “hooking” customers with colourful, engaging social media sites or apps is a “cornerstone” of the tech business.

What others are doing:

Other jurisdictions haven’t gone as far as they have on issues such as data collection, or fake news.

France recently passed a law that companies with more than 50 employees can’t email employees after business hours, giving individuals “the right to disconnect.”

The goal, said officials in that country at the time, was to prevent burnout and reduce work-related stress. But Mann says such an idea might also help with addictive behaviour.

“I think it’s interesting to consider that that kind of a law might reduce the need or the urge to continually access your devices,” he says.

In the U.K., the Digital, Culture, Media and Sport parliamentary committee launched an inquiry into the growth of “immersive and addictive technologies” in December 2018, looking into the “addictive nature of some technologies,” and how they can impact behaviour.

What Canada is doing:

“Not a whole lot has been done,” in this country, says Wong, adding even much of the advocacy around regulating tech giants has been around privacy and data.

Mann says it’s a rich area for researchers, who might start by developing guidelines for healthy use.

May Warren

Copyright

The issue:

Copyright protections are evolving in the digital age as countries ramp up efforts to combat piracy and online infringement. The need for new measures has come to the forefront amid a torrent of illegal downloads of online content from providers including Netflix and YouTube and the pirating of material for commercial and personal use.

What others are doing:

Protections are being updated in jurisdictions including the U.S. and especially the European Union, which is set to vote this spring in the European Parliament on an overhaul that would block copyright-protected material, including software, films, music and books, from being uploaded or electronically shared without permission from creators.

A provision of the proposed policy would effectively mandate that companies including Facebook and Google develop and fund technology to automatically filter out infringed content on their sites and search engines on a mass scale.

In the U.S., meanwhile, momentum is building around proposals in Congress that could formalize and increase royalty payments for music creators whose work is played on digital services.

In many developing jurisdictions, the push to reform intellectual property protections has become part of a plan to boost economic competitiveness, with China for example proposing to make websites liable for promoting unlicensed works as part of a broader reform of property rights.

Australia, which was described by the country’s attorney general in 2014 as the “worst offender” of pirated content, has proposed new laws that would make if far easier for copyright owners to achieve court orders that would force search engines and internet service providers to block or delete pirated content.

What Canada is doing:

In Canada, part of the response is contained in the Copyright Modernization Act which requires that providers give notice to customers suspected of pirating content. It is left to the injured party to sue with awards capped at $5,000 for non-commercial infringement.

Provisions in Canada’s legislation also prohibit demands for payment in the infringement notices, as well as links to any other sites where payments can be made to content creators.

The notice provision has been criticized by groups including the International Intellectual Property Alliance of content creators since if “fails to provide meaningful incentives for network service providers to co-operate with copyright owners to deal with copyright infringements that take place in the digital network environment.”

Another possible impediment to the notice provision stems from the new trade agreement among Canada, the U.S. and Mexico that limits internet platforms’ liability for users’ content, while the deal also stipulates that Canada eventually extend its copyright term. The liability provision could prevent Canada from adopting European-style digital copyright rules, experts note.

Michael Lewis

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