You have to understand: the Online Harms Act was supposed to be the “good” bill, the one part of the Trudeau government’s three-pronged effort to regulate the internet that was addressed to a real problem.
The Online News Act (Bill C-18) was a transparent shakedown operation, whose stated premise – by posting links to stories on news media websites, social-media platforms were not providing them with valuable free advertising but stealing their content – was but a front for its actual premise: the platforms have money, and the media want some.
The rationale for the Online Streaming Act (Bill C-10) was even thinner. The internet having laid waste to every premise on which conventional broadcast regulation was based – spectrum scarcity, signal non-addressability, the impossibility of charging users directly for content – the legislation proposed, in the name of “levelling the playing field,” not to free conventional broadcasters from an obsolete regulatory regime, but to apply the same musty rules to their online rivals.
But online harms – such things at least exist! The internet pullulates with every conceivable product of the human mind, for good or ill – and the ills are awful indeed, from child pornography to hate propaganda to snuff films to bullying and harassment campaigns and beyond. Most of this stuff is already illegal, and most of it will nevertheless probably elude national regulators. There is just too much of it, too easily secreted, from too remote origins.
But the stuff that is most readily and widely available is the stuff that is posted on social media. So there is merit to the idea of holding the big platforms responsible for the content that appears on their sites, in the same way as any other publisher – for that is what they are – would be.
Yes, that means enlisting private corporations in what is in reality state regulation of speech. Up to a point, that is justified. There is no theory of free speech that would permit the distribution of, say, images of a child being sexually abused. The child is not in a position to consent to any of it: not to the act, not to the recording, not to the distribution. The viewing of their torment by others is a harm in its own right.
So there was some readiness to give the Trudeau government the benefit of the doubt in this regard, even after the travesties of C-11 and C-18, and even after it bollixed its first attempt: The ill-fated Bill C-36, plus a draft regulatory proposal that would have, inter alia, required platforms to take down content on 24 hours’ notice – not just unambiguously harmful material such as child pornography, but a much wider range of objectionable content, where free speech concerns are more clearly engaged.
Even then, the first reviews of Bill C-63, the government’s latest attempt to fix the internet, were middling to positive. Hadn’t the new Justice Minister, Arif Virani, dispensed with overt regulation of the content on social-media sites, in favour of a less hands-on, more self-regulatory “duty of care” approach?
What could be the objection to imposing on the platforms the duty to “act responsibly,” if not by removing harmful content than by limiting the risk that users will be exposed to it? Or the duty to “protect children,” via parental controls, content warnings and so on? Or even the duty to make certain types of content “inaccessible,” given how narrowly this would apply: to child pornography, and to similarly non-consensual sexual images of adults?
It soon became clear, however, that there was much more to the bill than just that. And the more closely it was examined, the worse it appeared.
Most obviously out of bounds are a suite of amendments to the Criminal Code. Any attempt to criminalize speech ought to be viewed with extreme suspicion, and kept to the narrowest possible grounds. The onus should always be on the state to prove the necessity of any exception to the general rule of free speech – to prove not merely that the speech is objectionable or offensive, but demonstrably harmful.
I’ve already mentioned child pornography as an example: the harm is in that case inherent. Incitement to violence is very nearly as clear. The circumstances are such as to make the connection between the impugned speech – Burn it down! Kill them! – and the act, real or apprehended, so close as to make the word akin to the deed. But the further you go beyond that, the hazier the case becomes. I do not believe current laws against “willful promotion of hatred” or even “advocacy or promotion of genocide” meet the test, even if the Supreme Court does.
Contrast all this carefulness, however, with what is in the bill, which is quite breathtaking in its recklessness. There is, first, the proposal to increase the maximum penalty for promoting genocide from its current five years to life imprisonment. Say that again: life in prison, not for any act you or others might have committed, not even for incitement of it, but for such abstractions as “advocacy” or “promotion.”
The most remarkable part of this is the timing. At the very moment when everyone and his dog is accusing someone else of genocide, or of promoting it – as Israel’s defenders say of Hamas’s supporters, as the Palestinians’ say of Israel’s, as Ukraine’s say of Russia’s – the government proposes that the penalty for being on the losing side of such controversies should be life in prison? I have my views on these questions, and you have yours, but I would not throw you in jail for your opinions, and I hope you would not do the same to me – not for five years, and certainly not for life.
Hardly better is the proposal to create a new hate crime – that is, for acts motivated by hatred. Whether the state should be punishing people for their motives, rather than for their crimes, is perhaps too rarefied a debate: We take motives into account, for example, with regard to crimes committed in self-defence. And hatred has long been considered an aggravating factor at sentencing.
But the new proposal is to set up a whole separate category for crimes motivated by hatred. Well, not just crimes. The new crime would apply not only to offences under the Criminal Code but “any other Act of Parliament.” Got that? It doesn’t matter how obscure or trivial the law: anyone who breaks it for reasons of hate would be guilty of a crime. And the punishment? Once again, up to life imprisonment.
The overkill does not stop there. The bill also proposes to punish people for speech crimes they have not yet committed, but that someone fears they might. Any person, that is, who “fears on reasonable grounds” that someone else will commit an offence under the hate laws can apply to a court to shut them up – or in the words of the legislation, to order “the defendant to enter into a recognizance to keep the peace.”
Enforcement provisions range from having to wear an electronic monitoring device, to house arrest, to time in jail. Again: not for any act they might have committed, or even any act they might be contemplating committing, but for words someone fears they might utter. “Peace bonds” are not unknown in Canadian law, but for speech?
And we haven’t even gotten to the most contentious part of the bill! That would be the proposal to restore hate speech as a prohibited grounds of discrimination under the Canadian Human Rights Act – as it was under the old Section 13, before it was abolished by Stephen Harper’s government. “It is a discriminatory practice,” the new Section 13 (1) declares, “to communicate or cause to be communicated hate speech by means of the Internet or any other means of telecommunication.”
The complainant can be anonymous. The standard of proof is “balance of probabilities,” not “beyond reasonable doubt,” as in a criminal trial. There is no defence of truth, as there is in a libel case. Those found guilty of such discrimination are liable to penalties of up to $50,000; their accusers are in for rewards of up to $20,000. The likely chilling effect on speech is obvious, as is the incentive for complaints, frivolous or otherwise.
The safeguard in all this is supposed to be a new definition of hate speech – that is, as “detestation or vilification” rather than mere “disdain or dislike.” The language is taken from previous Supreme Court of Canada rulings in speech cases, which would be more reassuring if the court did not have such a spectacularly consistent record of getting speech cases wrong. At any rate, the import of the bill, as a writer in the Spectator put it, is that “you can be put away for life for a ‘crime’ whose legal existence hangs on the distinction between ‘dislike’ and ‘detest.’ ”
All right: so cut the Criminal Code and human-rights provisions from the bill. Does what remains stand up? Hardly. The platforms, after all, are not left entirely on their own to interpret and apply the various duties imposed upon them. Rather, they will be overseen by the ominously titled Digital Safety Commission (is anyone else reminded of the Committee of Public Safety?), whose precise reach we can only guess at.
As the indispensable Michael Geist, professor of internet law at the University of Ottawa, has commented, the commission “lacks even basic rules of evidence, can conduct secret hearings, and has been granted an astonishing array of powers with limited oversight.” He points, as an example, to Section 87 of the bill, which notes that “the Commission is not bound by any legal or technical rules of evidence.”
Life sentences for speech. The return of speech crimes to the Canadian Human Rights Act (a former chair of the Canadian Human Rights Tribunal, no less, has denounced this as “terrible law that will unduly impose restrictions on Canadians’ sacred Charter right to freedom of expression”). And a shadowy, sort-of-self-regulatory regime that requires the platforms to guess at whether they have satisfied their overseer – meaning they are almost certain to err on the side of self-preservation.
My initial reaction had been “one cheer” for the new law. I now think there is very little in it worth saving. Better to pull the whole thing and start over.