Subverting Democracy to Save Democracy: Canada’s Extra-Constitutional Approaches to Battling 'Fake News'

Abstract

This paper considers Canada’s responses to the spread of online misinformation in an electoral context, particularly through updated criminal provisions prohibiting the spread of false information in the Canada Elections Act, and through a recent push to “jawbone” online platforms into taking proactive measures to stem the flow of problematic speech, arguing that both of these raise substantial freedom of expression concerns, and that efforts to sidestep key constitutional questions around the appropriate scope of restrictions on political speech may ultimately pose a greater threat to Canadian democracy than online misinformation.

Keywords: fake news, misinformation, freedom of expression, election law, disinformation, freedom of speech