Canada is considering action against ‘false and misleading information.’ But exactly what action is a mystery.

A recent records request revealed that a Canadian government department is working up a potential new federal strategy on misinformation. But the section explaining what “legal action” would be taken against misinformation, and either the users posting it or the platforms hosting it, is obscured by a large black bar. 

Ottawa outlet Blacklock’s Reporter shared this month that it obtained the 35-page memo “Misinformation and Disinformation Strategy” from Minister of Industry Mélanie Joly’s office.

The memo recommends that the Innovation, Science and Economic Development department determine when material is “factually incorrect, misleading or out of context.” It also singles out social media platforms as “channels where misinformation related to the department’s mandate is most likely to appear or spread.”

And the memo advises a “transition from a reactive stance to one that is focused on prevention and early detection” that “will enable the department to proactively address false and misleading information.” 

But most important is the section titled “legal action.” It also happens to be almost entirely redacted. A paragraph underneath it is covered by a black bar and the only visible portion states: “Ensure any such actions are documented, proportionate, and subject to senior level approval.”

There is certainly a role for governments to appropriately respond to false information. There are a lot of lies and half-truths that can be detrimental to public health and safety — whether about surging viral and bacterial infections or threats from foreign powers — and public officials can serve their constituents well by directing people to accurate information. 

But how they do so is absolutely vital and the redactions here are troubling. Public officials can use government channels, social media advocacy, traditional media campaigns, and more to counter mistruths and to challenge what they deem false. But that method — more speech — is vastly different from potential legal action against either individual users who post or platforms that host information that the government deems false or even “out of context.”

For one thing, sometimes government officials are themselves incorrect about important matters. You can be elected or appointed as a government official, but you’re still just a human being. And like death and taxes, one of the realities of life is that we are imperfect creatures who get things wrong sometimes. That’s okay. It’s part of the human condition. But much danger lies in granting imperfect people not just the power to determine what is true or false, but to do so with the authority of the state as an enforcer.

And even more importantly: Sometimes politicians determine what is a lie or a fact not based on objective reality, but on what is personally or politically useful for them. Take a stroll through history, recent and ancient, and you’ll encounter many politicians and officials who sought power specifically for the purpose of maintaining it and abusing it. We must be careful against granting them authority to set the legal parameters of truth and falsity, even when we address the real challenges posed by lies and dishonesty.

These are live questions in the United States too, not just Canada or other nations. 

That’s why FIRE has endorsed the bipartisan JAWBONE Act, introduced last month by Senators Ted Cruz and Ron Wyden. (See FIRE’s explainer on jawboning here.) The act would require the federal government to report its communications to social media companies and broadcasters about the speech they host and allow people to sue if the federal government is unconstitutionally leaning on private actors to censor speech the government cannot. 

FIRE also sued Attorney General Pam Bondi and Secretary of Homeland Security Kristi Noem in February over their demands that Apple and Meta take down, respectively, an app that hosted footage of Immigration and Customs Enforcement activity in public and a Facebook group for users to share information about ICE operations in Chicago. (The lawsuit is now against Bondi’s and Noem’s successors, Attorney General Todd Blanche and Secretary of Homeland Security Markwayne Mullin.) Just because federal officials allege information is dangerous, harmful, or detrimental to government policy does not mean they are exempt from the First Amendment’s limits on public officials’ ability to censor expression.

It isn’t clear whether this Canadian memo on misinformation advises standard jawboning, where government agencies would privately coerce social media platforms to take down speech it flags as misinformation, or, as some outlets have suggested as a possibility, direct targeting of the individuals who post that speech. But both present deep challenges to free expression, and the existing uncertainty about what strategy the government may pursue only adds to that threat.