Law Times

LAW TIMES 6 COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 11, 2019 www.lawtimesnews.com COMMENT T his week, I had two sepa- rate conversations with two lawyers, one at a large, established firm in Toronto and the other at a small firm in rural Ontario. What struck me was not what the lawyers did differently but how both acknowledged that needs of lawyers (and their cli- ents) vary wildly depending on where they practice and the type of firm they're at. To use a hackneyed phrase, both of them indicated there is no "one-size-fits-all" solution for all lawyers on how to best do their jobs. This issue of Law Times con- tains stories that relate to tech- nology and shows how there is a vast array of opinion on how best to regulate the use of technology within widely varying practices. Our cover story looks at how prospective benchers view the role of the regulator in this realm. Some are pushing for more rules and guidelines to help set clearer ideas of what is expected, while others already feel lawyers are grappling with enough regu- latory oversight. "Every day there are press releases and announcements and committees — and it gets so noisy that it is impossible for a sole practitioner or a small firm to keep on top of their practice, keep on top of the law and now these technology things," says Mitch Kowalski, who is running for a seat. What isn't debatable is that the way lawyers do business is changing. Anita Balakrishnan reports on how Phil Brown, counsel of professional develop- ment and competence at the Law Society of Ontario, for example, told an Ontario Bar Association Institute event that technology can pose a challenge for record- keeping, especially as lawyers shift to text messages to com- municate. "It makes sense in this world of f leeting communications; you want to memorialize them. You want to make sure you've somehow documented a con- versation," says Brown, who suggested screenshots as a pos- sible solution. Expect the issue to continue to be top of mind as the election swings into full gear. Specific solutions and ideas are welcome. LT ©2019 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. 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No sooner had Democratic Institu- tions Minister Karina Gould unveiled her government's plan to "safeguard" — her word, which was presumably chosen advisedly — the upcoming vote from unscrupulous outside saboteurs than the greater Canadian political punditariat erupted into instantaneously furious de- bate over how, precisely, they were plan- ning to carry out one particular element of that strategy: namely, combatting the spread of "misinformation" — or, as it's now more commonly known, "fake news" — via online and social media platforms. It wasn't so much that anyone ob- jects, at least publicly, to the suggestion that perhaps something could be done to stem the f lood of fact-free political propaganda masquerading as unbiased news coverage that swamped the Face- book feeds of impressionable U.S. voters during their most recent democratic go- round. Where it gets tricky is — well, basi- cally immediately after that point, as it quickly becomes apparent that there's not just a glaring lack of consensus on what constitutes "fake news." Shockingly, people tend to place the most faith in stories and sources that reaffirm their existing inclinations. As it turns out, though, there's even less agreement on whether it should be the gov- ernment leading the charge in the first place or — among those who do see a role for the state in countering misinformation and "fake news" — whether the approach proposed by this particular government would have any discernable effect at all. Let's start with the skeptics, whose contributions to the conversation can be easily picked out by the frequent use — and, arguably, overuse — of the word "Orwellian," who are, understandably, unsettled by the idea of a near future in which a virtual army of faceless civil servants is dispatched by the state to seek out and destroy any and all news items deemed insufficiently in line with the facts as established by the current regime. On the plus side, there's absolutely no indication that Gould or anyone else has any intention of heading any- where near, let alone down, that dystopian path. Quite the opposite, in fact, which is why there's also a sizeable clutch of critics that see the newly released suite of democratic protective mea- sures as woefully insufficient. Rather than hold social me- dia giants such as Facebook, Twitter and Youtube directly accountable for co-ordinated, deliberate disinformation campaigns, including those funded by foreign states and other ma- levolent outside actors, the government is, at least at press time, prepared to sit back and "expect" those companies to "take concrete actions to . . . [promote] transparency, authenticity and integrity on their platforms." For her part, Gould has stated re- peatedly that there are "discussions" underway on how, exactly, that could be accomplished, and the most recent over- haul of the federal election rulebook did boost disclosure requirements for the sponsors of online political advertising during the writ. But as far as establishing a frontline for first response on fake news, it ap- pears that the Liberals are prepared to put their trust in both the willingness and capacity of Canadians to use their critical thinking skills to perform spot fact checks on potentially misleading online content. "Get informed from a diversity of sources," the government suggests in an infographic pointedly headlined "We all have a role to play in protecting our de- mocracy." "Think before you share." Of course, if it were that simple and straightforward, the term "fake news" wouldn't have entered the global lexicon, but give the government credit for this, at least: Anyone who actually takes the time to dig into the fine print of the govern- ment's suggested course of action in deal- ing with such propaganda will find little proof of the conspiracy theories already swirling about how Justin Trudeau wants to seize control of your news feed. The trick, presumably, will be getting them — and all of us — to do just that, on a regular basis, with pretty much every- thing we see, hear and read between now and Oct. 21. LT Kady O'Malley is a member of the parliamen- tary press gallery in Ottawa and writes about politics, procedure and process for iPolitics. She also appears regularly on CBC television and radio. Real news is where it's at The Hill Kady O'Malley

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