Last week’s Canada-EU summit in Montreal delivered several new collaborative initiatives as part of Canada’s pivot toward the EU, but among the most notable from a digital policy perspective was the conclusion of negotiations on a Canada-EU Digital Trade Agreement. E-commerce or digital trade chapters are by now common in Canadian trade agreements (including in CUSMA and the CPTPP), but this is Canada’s first standalone digital trade agreement. The possibility of a DTA has long been of interest, as Canada formally requested to join the Digital Economy Partnership Agreement in May 2022, and Global Affairs Canada launched a consultation that same year on developing a model Canadian digital trade agreement. That consultation process did not produce a public model, which means the Canada-EU DTA may emerge as the standard even though it is based on the European approach. While the text is unlikely to be released for months (officials said it is going through a “legal scrub”), there is plenty of room to speculate about what it contains since this will be the third EU DTA and it is likely to follow a similar approach.
News
Ofcom Did the Work Canada Plans to Skip: What the UK’s Age Verification Report Reveals About the Bill C-34 Social Media Ban
The most contentious aspect of the government’s Bill C-34 social media ban for under-16s is that millions of Canadians will need mandated age verification to create social media accounts. The bill tacitly acknowledges that this raises privacy concerns, as it includes a mandatory consultation with the Privacy Commissioner and leaves the future Digital Safety Commission to set the necessary standards. But as I wrote in June, the problem is that the government plans to bring the ban into force before the Commission even exists, meaning the age verification will proceed without established standards or the privacy consultation the bill itself requires. The United Kingdom, which is pursuing a similar ban with a spring 2027 start date, has adopted the opposite approach by asking Ofcom, its regulator, to assess what effective age verification would look like before Parliament sets the rules. The resulting report, released this week, is the most candid regulatory account of a social media ban to date. Ofcom identifies four methods capable of establishing whether someone is 16 or over and it finds that each of them requires using photo ID either directly or as the backstop given the ineffectiveness of age estimation for younger users.
The Age Verification Bill That Won’t Die: How Bill S-209 Complicates the Government’s Bill C-34 Online Safety Plan
Bill C-34, the government’s Safe Social Media Act, was touted as its approach to online age verification, adding a mandated age check for social media account creation for those under-16 and age verification for under-18s for access to pornographic content, all overseen by a new Digital Safety Commission. But it now appears the government is prepared to let Bill S-209, Senator Julie Miville-Dechêne’s age verification and website-blocking bill, proceed alongside it, creating new complications with inconsistent definitions and expanded regulatory powers. Bill S-209, which I have warned about since its predecessor Bill S-210 and opposed before a Senate committee last fall, passed the Senate in April and received its first hour of second reading debate in the House of Commons last month. The Liberals previously opposed Bill S-210, citing privacy and freedom of expression concerns, but this time the government supported sending the bill to committee and the House has now referred it on division to the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities. The shift surprised even the bill’s sponsor, and it opens the door to a two-pronged regulatory model that doubles down on age verification, features inconsistent definitions of pornography, establishes a second penalty regime, and could give the future Digital Safety Commission the power to seek website-blocking orders.
The Wrong Ban: The Heritage Committee Backed a Targeted Ad Ban for Kids and Stopped Short of a Social Media Ban, Yet the Government Chose the Reverse
The House of Commons Standing Committee on Canadian Heritage conducted an extensive study on the effects of influencers and social media on children and adolescents over the past year and released its report in June. The committee, which will soon lead the review of Bill C-34, produced 13 recommendations including a legally enforceable duty of care, an independent regulator with monetary penalties, safety-by-design requirements, defined categories of harm, and the inclusion of AI chatbots and deepfakes. Given the overlap with the government’s social media bill, it is no surprise that the government endorsed many of the recommendations this week. There is an outlier, however: the committee considered two potential bans, one on targeted ads for kids and the other on underage access to social media. The committee recommended the ad ban and stopped short of the social media one, but the government reversed the approach, declining the ad ban while legislating the social media ban for under-16s.
Regulator First, Rules Later: Bill C-34 Debate Shows the Government Wants a Digital Safety Commission Before It Figures Out What It Will Do
Second reading debate on Bill C-34, the Safe Social Media Act, began yesterday in the House of Commons, with the government pressing opposition MPs on whether they support creating the Digital Safety Commission, its proposed Internet regulator. While there was some broad acknowledgement that someone needs to administer the regulatory plan, it was striking to see the government focus on the regulator rather than the regulation. Liberal MP Kevin Lamoureux asked Conservative critic Rachael Thomas whether “in principle, the Conservative Party recognizes the value of having such a commission” and later asked Bloc critic Martin Champoux whether his party sees “the principle of having that commission as a positive thing.” When Culture Minister Marc Miller was asked what standards a platform would need to meet for an exemption to the under-16 social media ban, he responded that the way to protect kids is “to make sure we have a regulator in place that can put together precisely these guidelines.” That is a bug, not a feature of a bill that, as I wrote when the bill was tabled, punts roughly 50 key decisions to cabinet and a commission that does not yet exist. The initial debate confirms that the government plans to build the regulator first and work out the details later.
Recent Posts
Canada’s First Digital Trade Agreement: Why the Canada-EU Deal Will Likely Follow Europe’s Template and What That Means for Canadian Digital Law 
The Law Bytes Podcast, Episode 281: Mikolaj Barczentewicz on Europe’s Digital Sovereignty Push, CADA, and the Implications for Canada 
Ofcom Did the Work Canada Plans to Skip: What the UK’s Age Verification Report Reveals About the Bill C-34 Social Media Ban 
The Age Verification Bill That Won’t Die: How Bill S-209 Complicates the Government’s Bill C-34 Online Safety Plan 
The Law Bytes Podcast, Episode 280: A Fall Update on Where Things Stand on Canadian Digital Policy Reforms
