Arif Virani, MP for Parkdale-High Park by Nicole Contois https://flic.kr/p/ThAyBg CC0 1.0

Arif Virani, MP for Parkdale-High Park by Nicole Contois https://flic.kr/p/ThAyBg CC0 1.0

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Government Gaslighting Again?: Unpacking the Uncomfortable Reality of the Online Harms Act

The Online Harms Act was only introduced two weeks ago, but it already appears the government is ready to run back the same playbook of gaslighting and denials that plagued Bills C-11 and C-18. Those bills, which addressed Internet streaming and news, faced widespread criticism over potential regulation of user content and the prospect of blocked news links on major Internet platforms. Rather than engage in a policy process that took the criticism seriously, the government ignored digital creators (including disrespecting indigenous creators) and dismissed the risks of Bill C-18 as a bluff. The results of that strategy are well-known: Bill C-11 required a policy direction fix and is mired in a years-long regulatory process at the CRTC and news links have been blocked for months on Meta as the list of Canadian media bankruptcies and closures mount.

Bill C-63, the Online Harms Act, offered the chance for a fresh start given that the government seemed to accept the sharp criticism of its first proposal, engaging in a more open consultative process in response. As I noted when the bill was first tabled, the core of the legislation addressing the responsibility of Internet platforms was indeed much improved. Yet it was immediately obvious there were red flags, particularly with respect to the Digital Safety Commission charged with enforcing the law and with the inclusion of Criminal Code and Human Rights Act provisions with overbroad penalties and the potential to weaponize speech complaints. The hope – based on the more collaborative approach used to develop the law – was that there would be a “genuine welcoming of constructive criticism rather than the discouraging, hostile processes of recent years.” Two weeks in that hope is rapidly disappearing.

The government’s shift in approach has come as the criticism has increased. From former Chief Justice of the Supreme Court of Canada Beverly McLachlin (“I’m virtually certain that many of these provisions will be challenged if they stay in their present form”) to Margaret Atwood (“The possibilities for revenge false accusations + thoughtcrime stuff are sooo inviting”), the government seemed caught off guard by the harsh response to its bill. After a second briefing failed to quell the concerns, the Minister and officials in the PMO have gone back to the gaslighting playbook by dismissing the criticism as clickbait, suggesting they involve a misunderstanding of the law.

There are plenty of reliable sources on Bill C-63 (my Law Bytes podcast this week features Vivek Krishnamurthy, who was on the government’s expert panel on online harms, and I participated in another podcast with Senator Pamela Wallin) and the emerging consensus is that there are legitimate, serious concerns with the bill. These include:

  • The poorly conceived Digital Safety Commission lacks even basic rules of evidence, can conduct secret hearings, and has been granted an astonishing array of powers with limited oversight. This isn’t a fabrication. For example, Section 87 of the bill literally says “the Commission is not bound by any legal or technical rules of evidence.”
  • The Criminal Code provisions are indefensible: they really do include penalties that run as high as life in prison for committing a crime if motivated by hatred (Section 320.‍1001 on Offence Motivated By Hatred) and feature rules that introduce peace bonds for the possibility of a future hate offence with requirements to wear a monitoring device among the available conditions (Section 810.012 on Fear of Hate Propaganda Offence or Hate Crime). 
  • The Human Rights Act changes absolutely open the door to the weaponization of complaints for communication of hate speech online that “is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination” (Section 13.1). The penalties are indeed up to $20,000 for the complainant and up to $50,000 to the government (Section 53.1).

This is the plain text of bill. The Spectator article that the Minister suggests is clickbait may overstate some aspects of Bill C-63, but the core elements are accurate. Those supporters of the bill that are clinging to the Internet platform regulation provisions would do well to keep scrolling through the full text. The most obvious solution is to cut out the Criminal Code and Human Rights Act provisions, which have nothing to do with establishing Internet platform liability for online harms. Instead, the government seems ready yet again to gaslight its critics and claim that they have it all wrong. But the text of the law is unmistakable and the initial refusal to address the concerns is a mistake that, if it persists, risks sinking the entire bill.

22 Comments

  1. Please let it “sink the entire bill.” They have by now convinced me quite thoroughly that nothing they come up with in this domain will ever do more good than harm.

    Check the latest news from the UK, whose Online Safety act seems as if it must’ve had a close ancestor in common with C-63, if you want a glimpse of our future: https://www.eff.org/deeplinks/2024/03/effs-submission-ofcoms-consultation-illegal-harms

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  2. The National Post online story about this had a great comment from a commenter named “Spiny Norman” that said when Margaret Atwood and Elon Musk find common cause you know the bill is off-base.

    Given the timing (since we are about 18 months from next election), I wonder what is the chance that this would make it through Parliament before the end of the session (presumably just prior to the next election)? Could it be that the bill isn’t intended to actually make it to the point of royal assent but rather is a political stunt, both as a means to overshadow S-210 (the competing Senate bill) and as a wedge issue to make the parties that would vote against C-63 subject to allegations that they support making pornography available to children and revenge porn?

    • Or that it is meant to become law so a bot army’s worth of “anonymous” complaints can be made during the election that the Conservatives are posting “hateful” online content that just happens to be their campaign positions on, for example, puberty blockers, pronoun policies, tampons in the men’s room, or trans athletes competing against women, which the Digital Safety Commission hastily appointed by Trudeau would be able to order tech companies to remove.

      • Possible. I noted that the coming into force of the changes to the Canadian Human Rights Act is mostly on a day specified by the Governor in Council, while section 35 of C-63 is delayed, specifying that it must come into force on a day after section 34 comes into force (giving them a window to charge a social media service before the exemption kicks in). Specifically with this schedule for coming into force for those changes you may be onto something, since they could delay the section 35 until after an election.

        I suspect that we will have a better idea of if the government really wants it in place for the next election if they invoke closure on the bill, and if they decide it is to be a confidence motion then that would cement it.

        • The Charter of Rights can only use Section 1 to try and upsurp it so trying to amend the Charter is suspicious.

          Lawyers need to go on theattack now as the Minister of Justice in his dual role as AG of Canada has to uphold the public interest and hold the government to account. This current one like his predecessor have abused their authority and violated their oath of office.

          Lawyers need to start immediately to put a microscope to this Act within the Courts challenging and exposing the AG of Canada and his violations.

          Is everyone aware that the Judge for the foreign interference was from the Trudeaus private lawfirm Heenan Blaikie now defunct so conflict of interest just like David Johnston.

  3. I think the government is delusional if it thinks it will be able to enforce this Bill. Social media companies will seek injunctions from US courts to prevent enforcement. The grounds will be a foreign government agency does not have jurisdiction to enter and seize anything from US based premises or systems, especially without a warrant issued by a US court.

    The US Court would likely issue the injunction and view any attempt by the Canadian agency to fine social media companies as contempt.

  4. This government wants to preemptively punish people for crimes they might commit and release convicted felons from prison early.

    Quite a country we live in.

    • The minority report comes to mind. In fact microchips which they will try to coerce you into getting implanted may possess certain unique capabilities yoyr mind might not fathom anc put as comxpiracy but is fact to those in the know. Say no to microchips like you say no to this online harms bill which is an affront to attacking those who expose the true harmers who are the real criminals. Do not laugh here as its on the horizon and covid vaccines with mandates is the prelude. Microchips will affect your health. It is criminal negligence to offer it or to force with comsequences as seen with covid vaccines. Stay tuned this online harms bill is the minority report movie in real life.

  5. Yet it was immediately obvious there were red flags observed in Winston-Salem, particularly with respect to the Digital Safety Commission charged with enforcing the law and with the inclusion of Criminal Code and Human Rights Act provisions with overbroad penalties and the potential to weaponize speech complaints

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  9. Yet it was immediately obvious there were red flags, particularly with respect to the Digital Safety Commission charged with enforcing the law and with the inclusion of Criminal Code and Human Rights Act provisions with overbroad penalties and the potential to weaponize speech complaints.

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  10. Pingback: Trudeau government ‘gaslighting’ critics of Online Harms Act, legal expert warns - Todayville

  11. This Act is diversion tactics to divert from the covid debacle. It is also to try and shut down exposing the crimes of covid especially the vaccine mandates.
    This Act is truly laugheable when they possess the know how to catch drug traffickers and human traffickers and other criminals but refuse.

  12. Beverly Maclauchin has foreign interference written all over her face. She is mixed in with China. A real evil person who corrupted the SCC.

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  14. One insightful reader, “Spiny Norman,” on the National Post’s online piece on this observed, “You can tell the bill is off-base when Elon Musk and Margaret Atwood find a common cause.”

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