Canada's Minister of Justice and Attorney General of Canada Arif Virani speaks about the Online Harms Act during a press conference on Parliament Hill in Ottawa on Feb. 26.BLAIR GABLE/Reuters
The advance word on Bill C-63, the government of Canada’s latest attempt to regulate the internet, was that it was All About the Children.
The government had learned from the debacle over the bill’s predecessor, the much-criticized Bill C-36, which would have subjected social media platforms to 24-hour takedown orders for a wide range of content deemed harmful. The new bill would be more narrowly focused on protecting children. And who could be against that?
Well, now we have the bill, and one part of it is indeed as advertised. In place of the detailed regulatory oversight of the first bill, the new Online Harms Act obliges the platforms themselves to take more responsibility for the material that appears on their sites – with the gentle encouragement of a powerful new Digital Safety Commission.
This would apply particularly with respect to content that harms children, whether in the form of sexual victimization, bullying or inducements to harm themselves. Also targeted: “revenge porn” (sexual images posted without consent), along with content that foments hatred, incites violence or incites terrorism.
In all these areas, the platforms would be subject to three new legal “duties”: a duty to act responsibly, reducing the risks that users will be exposed to harmful content; a duty to protect children, via the use of parental controls, content warnings and the like; and a duty to make certain types of content “inaccessible.”
The last is limited to the most unambiguously harmful material: sexual images of children, and revenge porn. So far, so good. Even the most maximalist view of free speech would make an exception for these. If the broader list of responsibilities to which the platforms will now be subject looks a bit daunting, well, with great power comes great responsibility.
Alas, the government did not stop there. Rather, in its zeal to be seen taking on the politically charged subject of “hate speech,” it has included a number of other provisions in the bill, as overbroad as they are overreaching. Some are carryovers from the old bill, some are new. They include:
A new standalone hate crime. At present, hatred as a motive for crime can be taken into consideration at sentencing. Now it would be a crime in itself – not only to commit an offence motivated by hatred under the Criminal Code, but under any other Act of Parliament.
What difference this might make can be debated. What’s really objectionable is the proposed penalty: up to life in prison. The underlying act doesn’t even have to be a crime! So commit an offence under, say, the Canada National Parks Act, but do so with hate in your heart (I don’t know, use your imagination), and in theory you could be facing life.
The bill also proposes to increase the penalties for existing hate crimes, including a life sentence for anyone who “advocates or promotes genocide.” Not “commits” or “incites” – just promotes. Horrific behaviour to be sure – but life? For speech?
At a time when the air is thick with accusations that one side or another of a current conflict is promoting genocide, this seems almost reckless. Is it not obvious how this could be abused?
The return of Section 13. While much has been made of the new bill’s exclusion of hate speech from the list of things subject to take-down orders, it turns out it can be taken down in other ways.
Not only are the platforms likely to be extra-cautious with their newfound duties, to avoid the multimillion-dollar fines for non-compliance, but the bill also restores a provision of the Human Rights Act defining hate speech as discrimination.
Anyone who felt maligned in this way could bring a complaint before the Canadian Human Rights Tribunal, where the rules do not require proof beyond reasonable doubt – and where truth is not a defence. We don’t need to speculate how this could be abused: under the old Section 13 it was, repeatedly, which was why it was removed.
To be sure, the definition of hatred has been tightened, somewhat – but a determined tribunal should have no more difficulty finding some bit of speech was “likely to foment detestation and vilification” than mere “hatred.”
Prior restraint. The bill also provides for bans on speech that has not yet occurred. Anyone who “reasonably fears” that someone is about to post hateful content could obtain a “peace bond” to suppress it. Yes, the Attorney-General would have to sign off, and yes, a judge would have to approve, but still: what is the necessity for such draconian emergency measures?
You will excuse me, then, if I do not share in the general sigh of relief the bill seems to have evoked. It could have been worse, certainly. But that’s not saying a whole lot.
One cheer for the new Online Harms Act
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28.02.2024
Canada's Minister of Justice and Attorney General of Canada Arif Virani speaks about the Online Harms Act during a press conference on Parliament Hill in Ottawa on Feb. 26.BLAIR GABLE/Reuters
The advance word on Bill C-63, the government of Canada’s latest attempt to regulate the internet, was that it was All About the Children.
The government had learned from the debacle over the bill’s predecessor, the much-criticized Bill C-36, which would have subjected social media platforms to 24-hour takedown orders for a wide range of content deemed harmful. The new bill would be more narrowly focused on protecting children. And who could be against that?
Well, now we have the bill, and one part of it is indeed as advertised. In place of the detailed regulatory oversight of the first bill, the new Online Harms Act obliges the platforms themselves to take more responsibility for the material that appears on their sites – with the gentle encouragement of a powerful new Digital Safety Commission.
This would apply particularly with respect to content that harms children, whether in the form of sexual victimization, bullying or inducements to harm themselves. Also targeted: “revenge porn” (sexual images posted without........
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