Freedom of expression: More than just speech
From the rise of AI-generated content to the ongoing battles over social media regulations, the way we communicate is evolving rapidly.
Whether it’s Meta blocking Canadian news content, Elon Musk’s approach to free speech on X (formerly Twitter), or controversies over online misinformation, freedom of expression has never been more relevant – or more contested.
But its real-world implications extend far beyond the ability to speak freely: it shapes how we access, consume, and share information in our daily lives. Increasingly, access to information is as critical as the right to express ideas. Without one, the other becomes meaningless.
In this shifting landscape, the differences between Canada and the United States are stark.
In the U.S., the First Amendment offers near-absolute protection for speech, including controversial and even offensive content.
In Canada, however, free expression is guaranteed under this country’s Charter of Rights and Freedoms, though with notable restrictions.
Courts here have developed a legal framework that weighs whether speech is “worthy of protection,” a concept nearly foreign in American law.
A Changing Landscape
Our legal framework, built on Section 2(b) of the Charter, acknowledges the importance of free expression but also allows for certain limitations.
As my colleague Matthew Letson and I explained in a webcast for the Canadian Bar Association New Brunswick branch, Canadian courts have moved away from an absolutist approach, assessing not just whether an individual has a right to express themselves, but whether that expression serves a valuable societal purpose.
This shift is evident in how Canadian courts weigh issues like hate speech, defamation, and the regulation of online content. While there are legitimate concerns about harmful speech, the risk lies in allowing those in power to determine which voices should be amplified and which should be curtailed for the greater good of society.
Nowhere is this tension more apparent than in the realm of social media. Legislative efforts such as the Online News Act (C-18), which requires major digital platforms to compensate news publishers for content they share, and the Online Streaming Act (C-11) expanding the CRTC’s regulatory authority over online streaming services and their Canadian content offerings, have altered the way Canadians access information.
Meta’s decision to block news sharing on its platforms in response to C-18 is a case in point. The result? Canadians can no longer scroll through Facebook or Instagram to catch up on local news. Instead, they must actively seek out content from news websites – an extra step that has profound implications for public discourse.
Google has taken a different approach. Recently Beta (Google’s parent company) reached a settlement with Canadian news outlets wherein Google has paid $100 million to certain media organizations in exchange for an exemption from regulation under the Online News Act.
Consider The Global Context
The right to free expression is not just about speaking – it is about hearing. It is about ensuring that ideas, news, and viewpoints are accessible to all. Limiting the ability to access diverse sources of information – intentionally or unintentionally – fundamentally restricts free expression.
Consider the broader global context. In places like China, access to information is tightly controlled, with the government restricting content that does not align with state interests. While Canada is far from that reality, any steps toward restricting the free flow of information, even under the guise of protecting journalism, deserve careful scrutiny.
What we are seeing today is not outright government censorship but a shifting regulatory landscape where major tech companies, in reaction to new laws, are making decisions that ultimately limit the ability of Canadians to engage with information freely.
Ironically, moves designed to strengthen journalism may be contributing to its marginalization by making it harder for people to access trusted news sources on the platforms they use daily.
Freedom of expression is not just a theoretical construct – it is a pillar of Western democracy. Elections, public debates, and policy decisions rely on an informed electorate that has access to a wide range of viewpoints. Restricting access to information, whether through government regulation or corporate decision-making, undermines the very foundation of our democratic process.
This is not to suggest that there should be no oversight of digital platforms. But when we implement policies that push major players to withdraw from news distribution, we must ask: Are we advancing the interests of free expression, or are we narrowing the space for public discourse? If access to diverse and independent journalism is diminished, then public debate suffers. And if public debate suffers, so too does democracy.
At the same time, Google’s decision to settle with the Federal Government to some extent recognizes the impact that large social media have on the viability of news organizations.
It will take time to assess whether the adoption of the Online News Act will help or hurt the Canadian public’s access to news and information in the long run. What is clear is that we are only starting to scratch the surface of the effect of online news and information content on the right of Freedom of Expression.
The Path Forward
The conversation about free expression in Canada must evolve beyond a simple discussion of what can or cannot be said. We need to broaden the lens to include access – because without it, expression loses its power.
True freedom of expression requires more than just the right to speak. It demands the right to listen, to learn, and to engage. And that right must be fiercely protected.
Mel Norton is a partner at Lawson Creamer. He can be reached at mnorton@lawsoncreamer.com.