The Liberal government has introduced their highly anticipated Online Harms Act, which proposes sweeping reforms focused on protecting children online, creating internet complaint mechanisms, and potentially steep new penalties for hate crimes.
After the Liberals first promised to introduce online harms legislation 100 days after re-forming government in the 2021 election, Justice Minister Arif Virani on Monday tabled Bill C-63, the Online Harms Act, after significant reworking and consultation.
“All of us expect to be safe in our homes, in our neighbourhoods and in our communities,” Virani said at a press conference after tabling the legislation. “We should be able to expect the same kind of safety in our online communities.
“We have rigorous safety standards for things like my son’s Lego at home, but somehow none for the most dangerous toy not just in my home, but every Canadian home: the screen that is in front of our children’s faces.”
The legislation aims to cover social media services, live streaming services and user-uploaded adult content services that meet a user threshold. This threshold will be determined at a later date through regulations.
The government says that private and encrypted messaging services are excluded from this legislation. They will however, be able to expand the scope of what social media services are covered if sites pose a “significant risk of harm.”
This legislation breaks down into three broad categories, protecting users – especially children – from harmful content, establishing an enforceable complaint mechanism plus Criminal Code and Canadian Human Rights Act amendments.
In his press conference, Virani said that he anticipates a lot of pushback on this legislation from online platforms and people with “money and people with influence.
“My message to these people and these organizations is very simple. It is now the time work directly with us. Profit cannot be prioritized over safety right now. It is too easy for social media companies to look the other way as hate and exploitation festers on their platforms,” Virani said.
“This bill will require platforms to do their part and to do better to keep people safe from harm and exploitation, especially our children. Failure to do so will have a price significant monetary penalties.”
NDP public safety critic Peter Julian criticized the government for taking “over 800 days” to introduce the legislation after promising it in 100, but said the NDP want to see it pass and will focus on “improving it” in committee.
“We know that we need to bring an end to the wild west on the internet and make sure that Canadians are protected from hate, scourge of child pornography, self-harm that is often promoted through algorithms often directly to the most vulnerable and the kind of disinformation that is created,” Julian said.
Here’s what each category proposes.
Protecting Users from Online Harm
For online services that would fall under the act, the legislation puts three duties in place: duty to act responsibly, duty to make certain content inaccessible and a duty to protect children.
Regarding the duty to act responsibly, the act calls on services to continually assess, mitigate and report on risks to users associated with their service, provide tools for users to flag content and block users, and create an internal point of contact for complaints.
“This bill targets the worst of what we see online,” Virani said as he listed the seven areas deemed “harmful content.”
This includes content that sexually victimizes children or revictimizes a survivor, content used to bully children, content that could push a child to harm themselves, content that incites violence or terrorism, content that incites violence, content that foments hatred and intimate content shared without consent.
The intimate image provision includes language that covers deepfakes, which is when artificial intelligence is used to create or modify false images — which is increasingly happening to create pornography or compromising fake images of individuals online.
On the duty to make this content inaccessible, the act calls for online platforms to remove content that either sexually victimizes children or assault survivors and intimate images shared without consent – also known as revenge porn.
The act also says that users will be able to flag potentially harmful content directly on the relevant online service or through a digital safety commissioner. The act also plans to create this office.
Flagged content is to be removed within 24 hours, based on a process of oversight and review.
Finally, there is the duty to protect children. This calls on online platforms to ensure they have age-appropriate design features, be targeted and adaptable and be transparent in their practices.
Some examples of age-appropriate design features the government provided include parental controls, warning labels, safe search settings and different standards for data collection.
Digital Safety Officers
To enforce and uphold these new rules, the legislation includes language to create a digital safety commission and ombudsperson.
The digital safety commission is planned to be a five-person panel appointed by the government. This body would be there to enforce rules for online platforms and hold them accountable.
Financial penalties for offending platforms can be steep under the act, with the maximum penalty in the legislation listed as not more than six per cent of global revenue or $10 million, whichever is greater. If this administrative penalty is ignored, penalties can increase to $25 million or eight per cent of global revenue, whichever is greater.
This would include the ability to order the removal of harmful content that sexually victimizes people.
Last week, Conservative Leader Pierre Poilievre signaled plans to oppose the legislation, in short saying that Prime Minister Justin Trudeau cannot differentiate between hate speech and “speech he hates.”
Virani said that the head of the digital safety commission not being seen as partisan is of the utmost importance and the legislation dictates that whomever will fill that role must be voted on by MPs.
“It will be voted on in Parliament, in the House of Commons and in the Senate. We want Canadians through their representatives, to have a say on who that person is, to have confidence in their ability to execute that function. It is a critical function,” Virani said.
The digital safety ombudsperson will be tasked with being a support and advocate for users concerned about harmful content. Their job is meant to guide users to answers on how to file complaints and potential recourse options.
The ombudsperson’s job will also be to make recommendations to social media services, the digital safety commission and government on an ongoing basis.
Hate Crime Laws
For real world consequences of this legislation, the bill includes language to create a standalone hate crime offence in the Criminal Code, as opposed to hate crimes being an aggravating factor in determining a sentence.
This includes adding a definition of “hatred” to the Criminal Code, which the government says is consistent with decisions made by the Supreme Court.
Currently, the general definition for hate crimes in the criminal code involves targeting and identifiable groups in a way that incites hatred. There is also extra language around antisemitism, related to condoning, denying and/or downplaying the Holocaust.
This bill aims to raise the maximum punishment for four hate propaganda offences. This includes increasing the maximum punishment for advocating genocide from five years to a life sentence, and two to five years for others prosecuted for hate offences by way of indictment.
For the penalties, Virani said that judges will have a range of options available to them but he wants to see potential punishment match the severity of the offence.
“There is no doubt in my mind, particularly now, where we are as a country, that people who advocate genocide need to understand that that is a very serious matter and that is a matter that could be penalized at the highest level,” Virani said.
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