If all these new regulatory bodies and adjudicators are overzealous, it will have a chilling effect on the behaviour of Canadians online
John Stuart Mill’s ideas on liberty and the freedom of the individual in the face of state and social control remain as relevant today as when he wrote them in 1859.
Individuals must be free to form opinions and to express those opinions without reservation, short of “making himself a nuisance to other people.”
“Society can, and does, execute its own mandates, and if it issues the wrong mandates … in things with which it ought not to meddle, it practices social tyranny more formidable than many kinds of political oppression,” he wrote in On Liberty, a rejection of the “tyranny of prevailing opinion.”
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The Canadian government has just executed its own mandate over the internet: the Online Harms Act. The bill is weighty, creating regulation over social media platforms; making changes to the Criminal Code to create new hate crime offences; and amending the Canadian Human Rights Act to allow for the adjudication of disputes over what constitutes hateful material online.
A judgment on whether it is the “wrong mandate” will only be possible when we can see how it is enacted.
But what can be said is that the rising tide of hate online required a government response — and that this iteration of the legislation is a drastic improvement on the proposal put forward after the 2021 election.
Arif Virani made a compelling case for the bill in an evening press conference. “We cannot tolerate anarchy on the internet,” he said.
The justice minister said the bill targets the worst of what we see online: the sexual victimization of children; intimate content shared without consent; content that incites violence, extremism or terrorism; content that foments hatred; and content that is used to bully a child or which induces a child to self-harm.
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He said the bill obliges online platforms to protect children, act responsibly and remove content that breaches the new rules. “It has been too easy for social media companies to look the other way as hate festers on their platforms,” he said. “What (the bill) does not do, it does not undermine freedom of speech.”
That remains to be seen.
The government did at least hear some of the concerns that were made by online law experts about the first iteration of the bill violating constitutional and privacy rights.
The original legislation required social media companies to proactively take down content for an array of categories within 24 hours of it being flagged.
Free-speech advocates warned that the use of artificial intelligence by social media platforms would lead to over-enforcement and a disproportionate use of censorship.
Virani said the government listened, and having watched problems unfold in Australia, “moderated” its position. The 24-hour takedown provision will now be limited to content that sexually victimizes a child or so-called “revenge porn.”
“There is no tolerance for that in the public domain and it needs to be brought down immediately,” Virani said.
He added that the government has exempted private messaging apps from regulation, after watching the U.K. attempt to monitor encrypted communications.
The changes to the Criminal Code that create a new hate crime offence, and a new maximum punishment of life in prison for particularly egregious cases of genocide promotion, are reasonable responses to the explosion of hate online.
Canada has a law against displaying hate: Section 319 of the Criminal Code, which says anyone who incites hatred against an identifiable group where incitement is likely to lead to a breach of the peace is committing a crime. The problem is, it is rarely used — just 20 times between 2001 and 2019.
Yet, in recent months, we have seen people glorify terror, promote genocide and lionize murder and rape.
Virani said the new hate-crime offence would give police and prosecutors more flexibility. “Hate is on the rise and we need to be providing (law enforcement) with more tools, not less,” he said.
The bar will, or should be, high: hatred as defined by the Supreme Court means detestation and vilification of a person or group, not simply expressions of disdain or dislike.
The law is meant to reconcile our differences, not boss people about or impose opinions.
This is where the worries set in.
The new bill creates a Digital Safety Commission of Canada (to administer and enforce the act), a Digital Safety Ombudsman (to provide support to users of social media) and a Digital Safety Office (er … no idea).
Meanwhile, the Canadian Human Rights Commission will deal with complaints alleging discriminatory practices and the Canadian Human Rights Tribunal will inquire into such complaints. It remains a mystery to me which government commission the bemused, offended citizen should approach with an initial complaint.
The danger is that we have gone from the digital Wild West to a surveillance state with the stroke of a pen.
If all these new regulatory bodies and online adjudicators are overzealous in their application of the law, it will have a chilling effect on the behaviour of Canadians online.
There can be no objection to more rigorous regulation of online posts that are beyond the pale — exploitation and violent extremism. But the creeping bureaucratization cannot lead to censorship.
As Mill said: “If all mankind, minus one, were of one opinion and only one person were of a contrary opinion, mankind would be no more justified in silencing that one person that he, if he had the power, would be justified in silencing mankind.”
National Post
jivison@criffel.ca
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