Government Information in Canada/Information gouvernementale au Canada, Number/Numéro 20 (February 2000)
The Right to Communicate (1) (2)
Canada is a country whose citizens see their national government as a constructive tool for achieving national objectives. But a chasm has opened between government and citizen. For decades Canadians have been told that they are experiencing a technological revolution. However, the government has not yet provided an opportunity for genuine public debate surrounding the critical social, economic, and cultural issues arising out of this revolution. The lack of public participation in policy processes and a government world view that negates citizen involvement are causing the widening of the chasm. Government pursuit of a single-minded information policy developed behind closed doors is alienating Canadians who are anxious about their future in the information society but are excluded from having a say in it.
In this paper we will examine the government policy framework and consultative processes dealing with information policies over the past thirty years, from which the fact of public exclusion will be obvious. We will conclude by proposing an alternative policy framework and policy making processes that promote wider citizen participation through the constitutional entrenchment of a right to communicate.
The right to communicate
The right to communicate is first recognized in Article 19 of the
United Nations Declaration of Human Rights:
Article 19 arose out of a post-war concern for the freedom of speech, the press, and other media. However, in the late 1960s, with the advent of satellites, it was recognized that Article 19 was too limited to encompass the newer media of interactive or two-way telecommunications. (4) Power belongs to those who control the channels of communication. It was realized that the possibility of greater access to interactive communications opened the means to disperse communications and power among the general population. (5) Consequently, in the 1970s and 80s, there were extensive efforts, primarily within UNESCO, to formulate a right to communicate. These efforts collapsed due to east/west and north/south ideological differences and power conflicts over the issue of the free flow of information. Under pressure spearheaded by the United States, UNESCO withdrew its support for a right to communicate initiative.
Canada was an active participant in these early efforts. The first official document in the world to attempt to define a right to communicate was a report issued in 1971 by a major Department of Communications task force, the Telecommission. In its report, Instant World ,(6) the Telecommission recognized that interactive networks based on the convergence of telecommunications and computing raised new issues about democracy, citizenship participation, and access to communications media and information. Early drafts of the report contained a strong endorsement of a right to communicate. However, the final report was toned down because it conjured up, as one of the drafters observed, "visions of a rabble demanding more, ever more, from a beleaguered established order." (7)
Nonetheless, the report asserted that the rights to hear and to be heard, to inform and to be informed, "are among the most valuable privileges" of a democratic society and are essential elements of a right to communicate. (8) Canadian policy makers and politicians did not pursue the implications of a right to communicate in subsequent telecommunications policy processes. Perhaps they were fearful of the "rabble demanding more, ever more, from a beleaguered established order." As the Telecommission's Executive Secretary later noted, "resounding declarations" gave way to "practical limitations." (9)
We believe it is necessary to re-introduce the idea of a right to communicate in the policy debate because government information policy is focused on a concept of citizen participation in the information society that is defined in economic terms only. In its drive to promote the private sector development of the information highway, government is abandoning the citizens it is meant to represent. Thirty years ago government policy makers saw the need for a right to communicate. It is now time for all Canadians to have the opportunity to debate its merits.
While there has been much discussion about "convergence" during the 1990s, the marriage of telecommunications and computing, and its policy implications, were recognized by the Canadian government as early as the 1960s. Since then the federal government has issued numerous reports by advisory bodies appointed to examine the implications of the convergence of telecommunications and computing. In 1968, the newly created Department of Communications (DOC) created the task force called the Telecommission. It was chaired by the Deputy Minister, Allan Gotlieb, and included other high-powered senior public servants.
The Telecommission report was followed in 1972 by a report of the Canadian Computer/Communications Task Force, (10) a report in 1979 by a Consultative Committee on the Implications of Telecommunications for Canada, (11) and the reports in 1995 (12) and 1997 (13) of the Information Highway Advisory Council (IHAC).
Who participated in the formulation of these reports? It is useful to focus for a moment on the Telecommission because it set the pattern for all subsequent advisory bodies. The question of the extent of public consultation came up as soon as the idea of the Telecommission was raised with potential members. The Minister's office indicated that the Minister was committed to the "the principle of maximum public participation." It stated that the Department of Communications considered three possible approaches to developing its new telecommunications policy: a royal commission, an autonomous task force conducting public hearings, or, the method the Department chose, a government study that would include outside contributions. (14) From the very beginning, then, an exclusive approach to examining telecommunications/computing policy contrasted sharply with the tradition of royal commissions and public consultations characteristic of broadcasting policy making. Instead, the Telecommission established an eighteen-member project team dominated by representatives from such bodies as the Canadian Manufacturers Association, the Canadian Equipment Manufacturers Association, and legal, academic, and industry experts.
The Minister of Communication's staff became concerned that contributions to over forty studies it commissioned were "overwhelmingly from those with vested interests." In order to avoid criticism that the Telecommission was a captive of industry, it elicited responses from organizations representing the public through such special interest groups as the Canadian Federation of Agriculture and the Canadian Labour Conference. (15) However, the Telecommission did not consider any kind of direct public input. Instead of holding public hearings the Telecommission held a series of conferences at various universities on such issues as "Telecommunications and Participation" and "Access to Information." These conferences were attended by hundreds of individuals from universities and government and from the arts, law, computing, and business sectors. While concern was raised about the lack of representation from the general public, there was no effort to expand participation.
The Minister stated that the Department's approach incorporated the advantages of a public commission and those of a confidential government study. (16) It is hard to imagine how anyone could reconcile the two formats of a public commission and a confidential internal study. Nonetheless, it became government practice to appear to be undertaking a public process while, in fact, confining the process to an enclosed policy community of elite insiders. Like the Telecommission, the membership of the subsequent advisory groups was dominated by senior government officials, academic experts, and industry representatives.
During this period there was an increase in the number of public interest advocacy groups. While serving a useful purpose, they cannot be considered truly representative of the public. They possess limited resources, have small memberships, maintain few direct links to senior government officials or ministers, are largely unknown outside of Ottawa, and have no real mandate to speak for the public. In short, they joined a policy community dominated by far more powerful telecommunications pressure groups well connected to government. (17)
When the government established the Information Highway Advisory Council (IHAC) in 1994, the Council mirrored the Telecommission of a quarter of a century ago. Over half of its 29 members were senior executives of major telecommunications firms. A former Minister of Communications who was a registered lobbyist working in the telecommunications industry was a member. Responding to the rise of public interest groups, the remaining members included a sprinkling of academics, computing administrators, consumer groups, an arts representative, and a union official.
Just like the Telecommission, the IHAC established an elaborate structure of working groups to address a wide range of policy issues. While this structure implied extensive consultation the members of these study groups were, again, industry representatives and academic experts selected by the government. Initially the Council met in camera until it came under pressure from public interest advocates to open up its deliberations. In response, the government channeled public input into the legalistic process of the Canadian Radio-television and Telecommunications Commission--a process which discourages extensive participation by the lay public.
It is ironic that, although all of the advisory groups over the years followed exclusionary consultative processes, they often advocated the need for wider consultation. The Telecommission asserted that "the social impact of future telecommunications and information systems will call for the widest possible advance consultation about their purpose, planning, and use." (18) The 1979 report of the Consultative Committee declared: "Without a much wider appreciation of the fundamental nature of the changes now taking place it is unlikely that effective mechanisms for considering the issues will be developed, let alone the implementation of appropriate solutions." (19) The IHAC stated: "The fundamental social and economic transformation accompanying Canada's transition from an industrial to a knowledge society underscores the need to focus on access view points beyond those of the federal government and the usual participants in the CRTC regulatory process." (20)
The Government's long-standing exclusionary policy processes are not the only factor constraining public participation. As one reads the reports of the advisory bodies there emerges an ideology of information technology that discourages wider debate. (21)
Ideology of information technology
The ideology of information technology embodies a chain of premises which gives it an internal logic appealing to politicians and policy makers. (22) Information technology is the primary cause of change and this change is inevitable. Information technology is transforming our industrial society into an information society. Information is the raw material of a knowledge-based economy. The extensive use of information technology will result in dramatic increases in productivity and wealth. In the knowledge-based economy the market alone should determine what goods and services will be provided, what they will cost, and how they will be distributed. This includes the most precious commodity of all: information.
The ideology further claims that the knowledge-based economy is most efficient when government does not intervene. Government's primary role is to promote a competitive market through deregulation and privatization. In any case, there is no point to government intervention because there is little government can do; national economies are now part of a global economy over which governments have no control. This global economy requires a new kind of worker: the knowledge worker. This is a worker who must be prepared to go anywhere in the world to sell her or his skills. This worker is expected to have no loyalties and no ties to the local community and its institutions.
The information society also requires a new kind of citizen: the citizen as consumer. The primary responsibility of a good citizen is not to be politically active but to become a good consumer at the information highway mall. Finally, according to this prevailing ideology the social and economic dislocation caused by the shift from an industrial to an information society should be seen as a positive manifestation of economist Joseph Schumpeter's concept of "creative destruction." (23) Creative destruction will lead to long term economic benefits due to the innovative entrepreneur operating in a competitive market.
Each of these premises is debatable or subject to various interpretations. However, they are rarely challenged in any arena that involves the general public. Rather, the ideology of information technology promotes a fatalism that discourages debate and political activism among the general public. People are encouraged to believe that their fates are determined by inevitable technological change, the iron laws of the free market, and the uncontrollable gale forces of globalization. Consequently, the ideology of information technology calls for passive citizens but active consumers. Democracy is subordinated to economic ends. The government's information highway access strategy in particular vividly demonstrates the extent to which government is abandoning citizens in favour of consumers.
Access to the information highway
The core objective of the Government's access strategy is to get as many Canadians as possible hooked up to the Internet in order to create a critical mass of consumers that can sustain the private sector development of the information highway. The industry-dominated IHAC pointed out the need for the Government to increase access as "a precondition for producing a healthy consumer market for commercial products and services and for sustaining the viability of a business environment on the Internet." (24) This economically-orientated access strategy does not address (through a coherent policy) other issues central to any sound access policy in a democratic information society. These issues include language rights, cultural identity, government publishing policy, intellectual freedom, literacy, privacy, accessibility for the disabled, intellectual property rights, and sustainability.
The Information Highway Advisory Council called for a national universal access strategy that would allow Canadians to exercise their democratic rights on the information highway--a strategy that would avoid the creation of information "haves" and "have nots." Nonetheless, the members of IHAC were unable to agree on how to achieve this objective. While IHAC recommended that the government establish yet another advisory group to develop a national access strategy, the Government instead launched its Connecting Canadians initiative. As part of its Connecting Canadians strategy the Government initiated such programs as SchoolNet, LibraryNet, and the Community Access Program (CAP) to provide access for remote, rural, and high-cost urban areas.
The IHAC alleviated the fears of those in the private sector who might be concerned about government intervention in the market. It noted that these programs actually "provide the least distortion to the Internet marketplace...if anything, they stimulate the market by whetting the public for full Internet access...." (25) The Government's Task Force on Electronic Commerce also notes: "Since most Canadians do not yet have a computer at home, widespread access to the Internet can be most readily achieved by focusing on communities and institutions, through schools, public libraries and community access sites." (26) In short, these programs elicit the aid of public cultural and educational institutions in an access strategy aimed at attracting consumers to the information highway. The private sector builders of the information highway, supported by the national government, will serve the "haves"; local libraries, schools, and community centers, subject to continual budget constraints at the local level, are left to serve the "have-nots."
Thirty years of government telecommunications and information policy making has resulted in an enclosed world of a policy and regulatory elite. Those included in this group might argue that a more open process is not required. But such a position ignores the growing chasm between Canadians and their government. Studies confirm that Canadians are disenchanted with government. Paradoxically, however, these studies also indicate that people are interested in politics, want a change in the status quo, believe government should be more open, feel elections should not be the only way to express their views, and welcome alternative forms of participation. (27)
In addition to yearning for new political processes people want options to the prevailing orthodoxies. Increasingly people see that the premises underlying the ideology of information technology are flawed. Here are some quick examples: Despite assertions that Canadians are experiencing the emergence of an information society, economists and government statisticians have not been able to determine how to measure its nature or extent. The calls by economists and the business community for less government intervention in the market sound hollow to the person on the street who reads in the daily newspaper about the Minister of Industry's justification of government subsidies to major trans-national corporations who threaten to take jobs out of the country. And why would people not be cynical when the Senate Sub-committee on Communications undertakes to study the economic, social, and cultural importance of communications for Canada by traveling to meet experts in Boston, Los Angeles, San Francisco, Silicon Valley, San Jose, Brussels, Paris, and London but does not consult with the Canadian general public? (28)
Furthermore, the predicted economic benefits of the much-touted gale forces of creative destruction seem long in coming. Advocates of the ideology of information technology urge us to take the long view and in the meantime acquiesce to the turbulence of the global market. However, these advocates ignore Schumpeter's warning that it is perfectly rational for the disadvantaged to take a short-term view of the economic consequences of the creative destruction arising from the market. He pointed out that history is a succession of short-run situations that can change the course of events. He warned that step-by-step people can imperceptibly be led into something they do not really want until their fate is decided for them. For Schumpeter this situation opens the way for special interest groups to mold the public will. In the end, individuals are confronted not with the genuine will of the people but what he called a "manufactured will." Schumpeter understood that special interest groups on all sides strive to manufacture the will of the people to conform to their own economic interests, idealistic yearnings, or political power trips. (29) We have tried to show that, in fact, past policy practices have indeed led us step-by-step to a "manufactured will" forged by special interest groups much as Schumpeter predicted could happen.
How, then, can we create a broader policy framework within which to promote citizen participation and accessibility? How can we open up policy formulation to include a more representative body of citizens? We propose these objectives can be met through a right to communicate. What is a right to communicate and how might it be attained?
Elements of a right to communicate
We refrain from proposing a specific formulation of a right because one of its central components should be a commitment to involving people in decision-making processes. However, we want to provide a sense of what a right to communicate could encompass. Some maintain that such a right includes "at least the right to inform and be informed, the right of active participation in the communication process, the right of equitable access to communication resources and information, and the right of cultural and individual privacy from communication." (30)
Others see a right to communicate as a hierarchy of rights, freedoms, and entitlements. In this framework, the right to communicate caps a core of interconnected freedoms including freedom of opinion, of expression, and of information. These freedoms embody such entitlements as freedom of the press, an absence of censorship, the right of access to information, the independence of broadcasting, and so forth. (31) A right to communicate, then, has the potential of addressing many of the policy issues central to a Canadian information society. How might the rights, freedoms, and entitlements to communicate be formulated without relying on the traditional exclusionary consultative processes? How can average citizens be brought into the policy process? How can they add their voices to those of the think tanks, academics, and public interest and industry pressure groups? We propose two possibilities: first, the use of consensus conferences, a process developed in Denmark in the 1980s, and, second, the constitutional entrenchment of a right to communicate.
In a multi-national survey people were asked about their confidence in government; only in Denmark and Northern Ireland had their confidence actually increased. (32) We speculate that confidence in government in Denmark increased because there is wide consultation between government and citizens (33) in particular the consensus conferences conducted by the Danish Board of Technology. (34)
It is often assumed that science and technology policy issues are too complex for the lay person. The Danish Board developed the consensus conference process to counter the exclusion of the average citizen. When a particular issue is identified a steering committee is established to direct the process. A citizens' panel of fifteen or so people from the general public is formed. Using trained facilitators, this panel attends background sessions, hears testimony by experts, industry representatives, and public interest advocates, and cross-examines these experts. Finally, the panel prepares a concise report reached through consensus. This report is given wide distribution and a high media profile. Note that this process allows citizens to participate directly in the formulation of policy but it does not exclude more traditional policy players such as special interest groups, experts, or public interest advocates. All are included in the process.
Charter of Rights and Freedoms
Consensus conferences offer one means of engaging the general citizen in the formulation of a right to communicate. How can such a right be secured in a way that shifts the debate from government advisory bodies and regulatory agencies to alternative processes more open to the public? Currently Canada's Charter of Rights and Freedoms stipulates as a fundamental freedom: "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication." This statement is not unlike Article 19 of the UN Charter in that it reflects a particular concern about freedom of speech and freedom of the press. That is, it appears more concerned about content than process. In contrast, a right to communicate "emphasizes the process of communicating rather than the content of the message. It implies participation." (35) However, democracy demands that content and process be linked.
The Supreme Court of Canada has, on many occasions, elaborated upon freedom of speech. The contexts have varied: challenges have been made to limitations placed on freedom of speech through criminal laws relating to obscenity, hate, prostitution and libel, through publication bans and search warrants directed at the media, through limits on the ability of union members to picket and on government employees to criticize, and through limitations on certain types of advertising. The regime of rights is used as a shield by those who argue that laws limiting speech are constitutionally invalid. The same regime of rights is used as a sword by those who invoke it to secure access to information and the right to criticize governmental actions.
However, Canada's Charter recognizes that rights are not absolute. All of the rights it guarantees are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" by virtue of section 1 of the Charter. Thus, even when rights exist, they may legally be limited. It is the courts who determine, what those reasonable limitations may be by reviewing government actions that are said to infringe on a guaranteed freedom. Governments enact laws and judges determine if they are constitutionally valid.
The Charter, and the courts, also acknowledge freedom of speech as one of the "fundamental" freedoms. Former Chief Justice Dickson said: "Our democratic system is deeply rooted in, and thrives on, free and robust public discussion of public issues. As a general rule, all members of society should be permitted, indeed, encouraged, to participate in that discussion." (36) In 1987, Justice Cory, while he was still an appellate court judge, said: "The very lifeblood of democracy is the full exchange of ideas and opinions. If these exchanges are stifled, democratic government itself is threatened." (37)
These statements seem more concerned about content than about process. However, the scope of freedom of speech may not be so narrow as it appears. Judges' comments are restricted to the issues that are brought before them by litigants. All of the cases that have emerged in the courts to date have concerned issues where individuals have claimed the protection of freedom of speech in the face of laws that purport to limit what they can say. But note Dickson's comment about citizen participation in the discussion of public issues in the Fraser case (above). Also note the more explicit comments of the majority of the Court in Irwin Toy Ltd. v. Quebec (Attorney General) (38) referring to freedom of speech and expression: "Expression has both a content and a form and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning."
It appears, then, that the freedom of speech and expression guaranteed by the Charter is a freedom derived from the democratic necessities of informed citizenry and free public discussion. The courts have called it "the very lifeblood of democracy." We suggest two ways of embedding a right to communicate within the Charter: through explicit amendment and through judicial interpretation.
All Canadians have witnessed both successful and unsuccessful attempts to amend the Charter. Canadians are far more aware of the memorable failures than they are of the successes. The mega-amendment, a political package that endeavours to provide something for everyone, has failed. These mega-amendments have been rejected. But these rejections—usually viewed as failures of the constitutional process, and described that way by the media—are actually successes. The people of Canada said "no" to Meech Lake and "no" to Charlottetown, and if the people get what they want this must be considered a constitutional triumph. The failure, as we know, is a failure of the political elites to get what they want.
The most significant advantage of the constitutional amendment process is that it inevitably generates public discussion and debate. Any proposed amendment relating to making explicit in the constitution a right to communicate would be debated in the House of Commons, the Senate, and the provincial legislatures. Some jurisdictions require constitutional amendments to be submitted to a referendum -- another context which generates discussion and debate. And in jurisdictions without such legislation, others argue that the referendum has become, although not legally necessary, politically essential. There is no doubt that these processes provide a more open forum in which to consider the implications of being a citizen in an information society. They provide a forum in which all Canadians feel eligible to participate. No one is excluded for lack of expertise.
Public discourse can develop and articulate a right to communicate which can be embedded in the existing Charter right to freedom of speech and expression. All of the rights that the Charter guarantees are simple but grand statements about fundamental principles. How those principles are engaged in real life situations is uncertain until the disputes over their applicability occur —and the judges render their decisions. For example, everyone agrees that freedom of speech should be protected. But there is a wide range of opinion whether hate speech, or pornography or even the language of commercial signs are protected forms of speech. In our legal system, all opinions matter, but ultimately the opinions that are enforced are the opinions of judges.
We call the decisions of judges "judgments" because we enforce these decision. But such decisions are merely the opinions of influential persons in society. Like other persons in society judges form their opinions based on the information available to them and on the discussion and debate surrounding contentious issues. We can assist judges in forming their opinions about a right to communicate by discussing it in various public fora such as academic conferences and research, consensus conferences, and debates about constitutional amendment. The objective of this public discourse is to explore the philosophical development of the concept of a right to communicate which is already embedded in the idea of free speech and expression. Do we need to use the words "right to communicate" in the Charter or can we find the idea of a right to communicate already there in the grand statement of principles that the Charter already embodies?
Our constitution is an organic document. Neither it, nor the freedoms it guarantees, is frozen in time. It must evolve and change as society evolves and changes. A century ago freedom of speech meant the freedom to climb up on a box in Hyde Park and extol one's point of view. Society provided the public space in which that could occur. Freedom of speech in the new millennium includes the freedom to access the electronic medium of the future's communication. Society has an obligation, in the interests of its own survival, to provide the public space in which each of us can stand up and express a point of view. It is of no use to have the freedom to express a point of view if it is impossible to actually do it.
Many have made the observation that the face of poverty in the 21st century will reflect a society divided between the information "haves" and the information "have-nots." We have argued that government policy on public access to the Internet has been guided by the economic interests of those who stand to gain by a certain public having access. The power elites have not addressed the social issues arising from the decisions which we, as a society, make to provide or to not provide access to the Internet. The public has not been permitted to take part in the discussion and development of policy choices. Nor is this a debate that can take place only in the rarefied air of federal politics. Decisions made at the federal level will have a significant impact on the need for and ability of local level institutions to continue to engage in community development in the virtual world. There is an economic imperative for truly universal public access to the Internet but there is also a social imperative. Canadians must be able to take part in the decisions that will shape their future.
 May be cited as/On peut citer comme suit:
William F. Birdsall and Merilee Rasmussen. "Citizens at the Crossroads: The Right to Communicate." Government Information in Canada/Information gouvernementale au Canada No. 20
William F. Birdsall is Executive Director of Novanet, a consortium of Nova Scotia academic libraries.
 William F. Birdsall, "A Canadian right to communicate?" Government Information in Canada/Information gouvernementale au Canada 15 (1998). http://www.usask.ca/library/gic/15/birdsall/html.
 L. S. Harms, Jim Richstad, Kathleen A. Kie, "The emergence of the right to communicate: 1970-1975," in Right to communicate: collected papers edited by L. S. Harms, Jim Richstad and Kathleen Kie (Honolulu: Social Sciences and Linguistic Institute, University of Hawaii at Manoa, 1977), 114-115.
 Information Highway Advisory Council, Preparing Canada for a digital world: final report of the Information Highway Advisory Council (Ottawa: Ministry of Supply and Services, 1997).
 William F. Birdsall, "Policy and players: the telecommunications policy community," in Understanding telecommunications and public policy: a guide for libraries edited by Karen Adams and William F. Birdsall (Ottawa: Canadian Library Association, 1998), 117-141.
 William F. Bridsall, "The Internet and the ideology of information technology," The Internet: transforming our society now, INET 96, Proceedings of the annual meeting of the Internet Society, 25-28 June 1996, Montreal (Montreal, 1996). http://www.free.net:8001/Docs/inet96/e3_2.html.
 Policy and participation on the Canadian information highway, FirstMonday, 1 March 1999. http://www.firstmonday.dk/issues/issue4_3/index.html
 Jim Richstad and Michael H. Anderson, "Policy context for news and a 'new order,'" Crisis in international news: policies and prospects edited by Jim Richstad and Michael Anderson (New York: Columbia University Press, 1981), 26-27.
 Annemarie M. Riis, "The information welfare society: an assessment of Danish governmental initiatives preparing for the information age," in National information infrastructure initiatives: vision and policy design edited by Brian Kahin and Ernest J. Wilson III (Cambridge, MA: MIT Press, 1997), 424-456.
 Danish Board of Technology, Consensus Conferences, n.d. http://www.tekno/dk/eng/metods/consens.htm