discussion paper first floated years ago<\/a> by not lumping all kinds of \u201conline harms\u201d into one bucket and treating them all the same. This bill more acutely addresses child abuse materials and non-consensual distribution of intimate images. I think the thresholds for some of this are too low, resulting in removal by default. The new Digital Safety Commission has stunning and likely unconstitutional powers. As is often the case, there\u2019s too much left to the regulations. But let\u2019s get into the substance.<\/span><\/p>\n<\/p>\n
So what does it do and who does it apply to?\u00a0 It applies to social media companies that meet a particular threshold that\u2019s set in regulation. Social media companies are defined as:<\/span><\/p>\nsocial media service<\/span>\u2002means a website or application that is accessible in Canada, the primary purpose of which is to facilitate interprovincial or international online communication among users of the website or application by enabling them to access and share content.\u2002(service de m\u00e9dia social)<\/span><\/p>\nIt also specifically includes: (a)\u2002an adult content service, namely a social media service that is focused on enabling its users to access and share pornographic content; and (b)\u2002a live streaming service, namely a social media service that is focused on enabling its users to access and share content by live stream.<\/span><\/p>\nThis seems intended to capture sites like PornHub and OnlyFans, but I think there are arguments that could be made to say that they’ll not fit within that definition.\u00a0<\/span><\/p>\nIt specifically excludes services that do not permit a user to communicate to the public (s. 5(1)) and carves out private messaging features. So instead of going after a very long list of service providers, it is much more focused, but this can be tailored by the minister by regulation.\u00a0<\/span><\/p>\n<\/p>\n
The online news act creates a whole new regulatory bureaucracy, which includes the Digital Safety Commission, the Digital Safety Ombudsperson and the Digital Safety Office. The Digital Safety Commission is essentially the regulator under this legislation and I’ll talk a little bit later about what that its role is. The Ombudsperson is more of an advocate for members of the public and the Digital Safety Office is the bureaucracy that supports them both. As an aside, why call the bill the \u201cOnline Harms Act\u201d but call the Commission the \u201cOnline Safety Commission\u201d? We have a Privacy Act and a Privacy Commissioner. We have a Competition Act and a Competition Commissioner. We have a Human Rights Act and a Human Rights Commissioner. In this bill, it\u2019s just inelegant.\u00a0<\/span><\/p>\n<\/p>\n
The legislation will impose a duty to act responsibly with respect to harmful content by implementing processes and mitigation measures that have to be approved by the Digital Safety Commissioner of Canada. This is extremely open-ended and there is no guarantee or assurance that this will be compatible with the digital safety schemes that these companies would be setting up in order to comply with the laws of other jurisdictions. We need to be very careful that \u201cmade in Canada Solutions\u201d don’t result in requirements that are disproportionately burdensome in light of our market size.\u00a0<\/span><\/p>\nThe large social media companies that immediately come to mind already have very robust digital safety policies and practices, so whatever is dictated by the Digital Safety Commissioner should be based on existing best practices and not trying to reinvent the wheel.<\/span><\/p>\nIf you are a very large social media company, you likely are looking to comply with the laws of every jurisdiction where you are active. Canada is but a drop in the internet bucket and work done by organizations to comply with European requirements should be good enough for Canada. If the cost of compliance is too onerous, service providers will look to avoid Canada, or will adopt policies of removing everything that everyone objects to. And the Social Media companies will be required to pay for the new digital bureaucracy, so that adds significantly to their cost of doing business in Canada.<\/span><\/p>\nIn addition to having to have government approved policies, the Bill does include some mandatory elements like the ability of users to block other users and flag harmful content. They also have to make a \u201cresource person\u201d available to users to hear concerns, direct them to resources and provide guidance on the use of those resources.\u00a0<\/span><\/p>\nOne thing that I was blown away by is largely hidden in section 65. It reads \u2026<\/span><\/p>\nDesign features<\/b><\/span><\/p>\n65\u2002An operator must integrate into a regulated service that it operates any design features respecting the protection of children, such as age appropriate design, that are provided for by regulations.<\/span><\/p>\nI was blown away by this for two reasons. The first is that it gives the government the power to dictate potentially huge changes or mandatory elements of an online service. And they can do this by simple regulation. Protecting children is an ostensible motive \u2013 but often a pretext \u2013 for a huge range of legislative and regulatory actions, many of which overreach.\u00a0<\/span><\/p>\nThe second reason why I was blown away by this is that it could amount to an \u201cAge Appropriate Design Code\u201d, via regulation. In the UK, the Information Commissioner\u2019s Office carried out massive amounts of consultation, research and discussion before developing the UK\u2019s age appropriate design code. In this case, the government can do this with a simple publication in the Canada Gazette.\u00a0<\/span><\/p>\n<\/p>\n
A lot of this Bill turns on \u201cwhat is harmful content\u201d? It is defined in the legislation as seven different categories of content, each of which has its own specific definition. they are..\u00a0<\/span><\/p>\n(a)\u2002intimate content communicated without consent;<\/span><\/p>\n(b)\u2002content that sexually victimizes a child or revictimizes a survivor;<\/span><\/p>\n(c)\u2002content that induces a child to harm themselves;<\/span><\/p>\n(d)\u2002content used to bully a child;<\/span><\/p>\n(e)\u2002content that foments hatred;<\/span><\/p>\n(f)\u2002content that incites violence; and<\/span><\/p>\n(g)\u2002content that incites violent extremism or terrorism.\u200d\u2002<\/span><\/p>\nImportantly, the bill treats the first two types of harmful content as distinct from the rest. This actually makes a lot of sense. Child sexual abuse materials are already illegal in Canada and is generally easy to identify. I am not aware of any social media service that will abide that sort of content for a second.\u00a0<\/span><\/p>\nThe category of content called \u201cintimate content communicated without consent\u201d is intended to capture what is already illegal in the Criminal Code related to the non-consensual distribution of intimate images. The definition in the online harms bill expands on that to incorporate what are commonly called \u201cdeepfakes\u201d. These are images depicting a person in an explicit manner that are either modifications of existing photographs or videos, or are completely synthetic as the result of someone’s imagination or with use of artificial intelligence.<\/span><\/p>\nI 100% support including deepfake explicit imagery in this Bill and I would also 100% support including it in the Criminal Code given the significant harm that it can cause to victims, but only if the definition is properly tailored. In the Online Harms bill, the definition is actually problematic and potentially includes any explicit or sexual image. Here is the definition, and note the use of \u201creasonable to suspect\u201d.\u00a0<\/span><\/p>\nintimate content communicated without consent<\/span>\u2002means<\/span><\/p>\n(a)\u2002a visual recording, such as a photographic, film or video recording, in which a person is nude or is exposing their sexual organs or anal region or is engaged in explicit sexual activity, if it is <\/span>reasonable to suspect<\/span> that<\/span><\/p>\n(i)\u2002the person had a reasonable expectation of privacy at the time of the recording, and<\/span><\/p>\n(ii)\u2002the person does not consent to the recording being communicated; and<\/span><\/p>\n(b)\u2002a visual recording, such as a photographic, film or video recording, that falsely presents in a reasonably convincing manner a person as being nude or exposing their sexual organs or anal region or engaged in explicit sexual activity, including a deepfake that presents a person in that manner, if it is <\/span>reasonable to suspect<\/span> that the person does not consent to the recording being communicated.\u200d\u2002(contenu intime communiqu\u00e9 de fa\u00e7on non consensuelle)<\/span><\/p>\nSo what is the problem? The problem is that the wording \u201creasonable grounds to suspect” cannot be found in the Criminal Code definition for this type of content and there is a very good reason for that. Either content is consensual or it is not. In the Criminal Code at section 162.1, it reads:<\/span><\/p>\n(2) In this section, “intimate image” means a visual recording of a person made by any means including a photographic, film or video recording,<\/span><\/p>\n(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;<\/span><\/p>\n(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and<\/span><\/p>\n(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.<\/span><\/p>\nIn the Criminal Code, either there is consent or there is not. In this Bill, the threshold is the dramatically low \u201creasonable to suspect\u201d. All you need is a reasonable suspicion and it is not just with respect to the circumstances at the time the image was taken or created, assuming we’re dealing with an actual person and an actual image. The courts have said\u00a0<\/span><\/p>\nThe words \u201cto suspect\u201d have been defined as meaning to \u201cbelieve tentatively without clear ground\u201d and \u201cbe inclined to think\u201d … suspicion involves \u201can expectation that the targeted individual is possibly engaged in some criminal activity. A \u2018reasonable\u2019 suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds\u201d.<\/span><\/p>\nYou can be 85% confident that it is consensual, but that remaining 15% results in reasonable suspicion that it is not. When you’re dealing with the section related to purported deep fakes, it does not specify that the image has to be of an actual person, whether synthetic or not. It could in fact be a completely fictional person that has been created using photoshop. It would cause no risk of harm to anyone. Given that the image is artificial and the circumstances of its creation are completely unknown, as is the person supposedly depicted in it, you can’t help but have reasonable grounds to suspect that it \u201cmight\u201d have been communicated nonconsensually.\u00a0<\/span><\/p>\nDeepfakes of actual people created using artificial intelligence is a real thing and a real problem. But artificial intelligence is actually better at creating images and videos of fake people. You should not be surprised that it is being used to create erotic or sexual content of AI-generated people. While it may not be your cup of tea, it is completely lawful.\u00a0<\/span><\/p>\nAnd it actually gets even worse, because with respect to deepfakes, the Online Harms Act turns on whether the actual communication itself may have been without consent, not the creation of the image. Setting aside for a moment that a fictional person can never consent and can ever withhold consent, an example immediately comes to mind drawn directly from Canada’s history of bad legislation related to technology and online mischief.<\/span><\/p>\nPeople may recall that a number of years ago, Nova Scotia passed a law called the Cyber-safety Act which was intended to address online bullying. It was so poorly drafted that it was ultimately found to be unconstitutional and thrown out.<\/span><\/p>\nDuring the time when that law was actually enforced, we had an incident in Nova Scotia where two young people discovered that their member of the legislature had previously had a career as an actor. As part of that career, she appeared in a cable television series that was actually quite popular and in at least a couple scenes, she appeared without her top on. These foolish young men decided to take a picture from the internet, and there were hundreds of them to choose from, and tweets it. What happened next? This politician got very mad and contacted the Nova Scotia cyber cops, who threatened the young man with all sorts of significant consequences.<\/span><\/p>\nThat image, which was taken in a Hollywood studio, presumably after the actor had signed the usual releases, would potentially fit into this category of harmful content if it were tweeted after the Online Harms Act comes into effect because someone reviewing it on behalf of a platform after it had been flagged would have no idea where the image came from. And if anyone says it\u2019s non-consensual, that\u2019s enough to create reasonable suspicion. One relatively explicit scene actually looks like it was taken with a hidden camera.\u00a0<\/span><\/p>\nSurely, it cannot be the intention of the minister of Justice to regulate that sort of thing. In some ways, it doesn’t matter because it would likely be found to be a violation of our freedom of expression, right under section 2B of the charter rights and freedoms, which cannot be justified under section 1 of the charter.<\/span><\/p>\nBut wait, it gets worse. With respect to the two special categories of harmful content, operators of social media services have an obligation to put in place a flagging mechanism so that objectionable content can be flagged by users. If there are reasonable grounds to believe that the content that has been flagged fits into one of those two categories, they must remove it. Reasonable grounds to believe is also a very low standard. But when you combine the two, the standard is so low that it is in the basement. Reasonable grounds to believe that there are reasonable grounds to suspect is such a low standard that it is probably unintelligible.<\/span><\/p>\nDeep fake images are a real, real problem. When a sexually explicit, but synthetic image of a real person is created, it has significant impacts on the victim. If they were doing anything other than window dressing, they would have paid very close attention to the critical definitions and how it is handled. But they have created a scheme in which anything that it’s explicit could fit into this category by anybody, rendering the whole thing liable to be thrown out as a violation of the charter, thereby further victimizing vulnerable victims. Victims. And if they had gotten the definition right, which they clearly did not, little code because the harm associated with the dissemination of explicit deep fakes is similar to the harm associated with the already criminalized non-consensual distribution of actual intimate images.<\/span><\/p>\nIt actually gets even worse, because the digital safety commissioner can get involved and they can order the removal of contents. The removal of content is again based on simple, reasonable grounds to believe that the material is within that category, which again only requires a reasonable ground to suspect a lack of consent. This is a government actor ordering the removal of expressive contents that unquestionably engages the freedom of expression right. Where you have a definition that is so broad that it can include content that does not post any risk of harm to any individual, that definition cannot be upheld as Charter compliant.<\/span><\/p>\nIf a user flags content as either sexually victimizing a child or as intimate content communicated without consent, the operator has to review it within 24 hours. The operator can only dismiss the flag if it\u2019s trivial, frivolous, vexatious or made in bad faith; or has already been dealt with. If not dismissed, they MUST block it and make it inaccessible to people in Canada. If they block it \u2013 which is clearly the default \u2013 they have to give notice to the person who posted it and to the flagger, and give them an opportunity to make representations. What this timeline is will be in the regulations. Based on those representations, the operator must decide whether there are reasonable grounds to believe the content is that type of harmful content, and if so, they have to make it inaccessible to persons in Canada. Section 68(4) says they\u2019d have to continue to make it inaccessible to all persons in Canada, which suggests to me they have to have a mechanism to make sure it is not reposted.\u00a0 There is a reconsideration process, which is largely a repeat of the original flag and review process.\u00a0<\/span><\/p>\nOne thing that I find puzzling is that this mechanism is mandatory and does not seem to permit the platform operator from doing their usual thing, which is to review material posted on their platform and simply removing it if they are of the view that it violates their platform policies. If it is clearly imagery that depicts child sexual abuse, they should be able to remove it without notice or involving the original poster.\u00a0\u00a0<\/span><\/p>\nEach regulated operator has to submit a \u201cdigital safety plan\u201d to the Digital Safety Commissioner. The contents of this are enormous. It\u2019s a full report on everything the operator does to comply with the Act, and also includes information on all the measures used to protect children, preventing harmful content, statistics about flags and takedowns (broken down by category of content), resources allocated by the operator to comply, and information respecting content, other than \u201charmful content\u201d, that was moderated by the operator and that the operator had reasonable grounds to believe posed a \u201crisk of significant psychological or physical harm.\u201d But that\u2019s not all \u2026 it also includes information about complaints, concerns heard and any research the operator has done related to safety on their platform. And, of course, \u201cany other information provided for by regulations.\u201d And most of this also has to be published on the operator\u2019s platform.\u00a0<\/span><\/p>\n<\/p>\n
The Commission can accredit people (other than individuals) to access electronic data in digital safety plans. These people must be conducting research, education, advocacy, or awareness activities related to the purposes of the act. The Commission can grant access to these inventories and suspend or revoke accreditation if the person doesn’t comply with the conditions. Accredited people can also request access to electronic data in digital safety plans from regulated service operators and the Commission can order that the operator provide the data. However, this access is only allowed for research projects related to the act’s purposes.<\/span><\/p>\nThis is another area where the parameters, which are hugely important, will be left to the regulations. There\u2019s no explicit requirement that the accredited researcher have their research approved by a Canadian research ethics board. It\u2019s all left to the regulations.\u00a0<\/span><\/p>\nWe need to remember that \u201cCambridge Analytica\u201d got their data from a person who purported to be an academic researcher.\u00a0<\/span><\/p>\nIf the operator of a regulated service affected by an order requests it, the Commission may consider changing or canceling the order. The Commission may do so if it finds, according to the criteria in the regulations, that the operator can’t comply with the order or that doing so would cause the operator undue hardship. An accredited person who requested an order may complain to the Commission if the operator subject to the order fails to comply.\u00a0 The Commission must give the operator a chance to make representations.\u00a0<\/span><\/p>\nFinally, the Commission may publish a list of accredited people and a description of the research projects for which the Commission has made an order.<\/span><\/p>\n<\/p>\n
The Act contains a mechanism by which any person in Canada may make a submission to the Commission respecting harmful content that is accessible on a regulated service or the measures taken by the operator of a regulated service to comply with the operator\u2019s duties under the Act. The Commission can provide information about the submission to the relevant operator and there are particular provisions to protect the identity of any employees of an operator that make a submission to the Commission.\u00a0<\/span><\/p>\n<\/p>\n
The real enforcement powers of the Commission come into play in Part 6 of the Act. Any person in Canada may make a complaint to the Commission that content on a regulated service is content that sexually victimizes a child or revictimizes a survivor or is intimate content communicated without consent. These are the particularly acute categories of\u00a0 deemed \u201charmful content.\u201d<\/span><\/p>\nThe Commission has to conduct an initial assessment of the complaint and dismiss it if the Commission is of the opinion that it is trivial, frivolous, vexatious or made in bad faith; or has otherwise been dealt with.\u00a0<\/span><\/p>\nIf the complaint is not dismissed, the Commission must (not may) give notice of the complaint to the operator and make an order requiring the operator to, without delay, make the content inaccessible to all persons in Canada and to continue to make it inaccessible until the Commission gives notice to the operator of its final decision. This is an immediate takedown order without any substantial consideration of the merits of the complaint. All they need is a non-trivial complaint. I don\u2019t mind an immediate takedown if one reasonably suspects the content is child sexual abuse material, but the categories are broader than that.<\/span><\/p>\nThe operator must ask the user who posted the content on the service whether they consent to their contact information being provided to the Commission. If the user consents, the operator must provide the contact information to the Commission.\u00a0<\/span><\/p>\n\u201cHey, you\u2019re being accused of posting illegal content on the internet, do you want us to give your information to the Canadian government?\u201d<\/span><\/p>\nThe Commission must give the complainant and the user who communicated the content on the service an opportunity to make representations as to whether the content is content that fits into those categories of harmful content.\u00a0<\/span><\/p>\nNow here is where the rubber hits the road: The Commission must decide whether there are \u201creasonable grounds to believe\u201d that the content fits into those categories. In a criminal court, the court would have to consider whether the content fits the definition, beyond a reasonable doubt. In a civil court, the court would have to consider whether the content fits the definition, on a balance of probabilities. Here, all the Commission needs to conclude is whether there are \u201creasonable grounds to believe.\u201d If they do, they issue an order that it be made permanently inaccessible to all persons in Canada.<\/span><\/p>\nThat is a dramatically low bar for permanent removal. Again, I\u2019m not concerned about it being used with material that is child abuse imagery or is even reasonably suspected to be. But there is a very strong likelihood that this will capture content that really is not intimate content communicated without consent. Recall the definition, and the use of \u201creasonable to suspect\u201d:<\/span><\/p>\nintimate content communicated without consent<\/span>\u2002means<\/span><\/p>\n(a)\u2002a visual recording, such as a photographic, film or video recording, in which a person is nude or is exposing their sexual organs or anal region or is engaged in explicit sexual activity, if it is <\/span>reasonable to suspect<\/span> that<\/span><\/p>\n(i)\u2002the person had a reasonable expectation of privacy at the time of the recording, and<\/span><\/p>\n(ii)\u2002the person does not consent to the recording being communicated; and<\/span><\/p>\n(b)\u2002a visual recording, such as a photographic, film or video recording, that falsely presents in a reasonably convincing manner a person as being nude or exposing their sexual organs or anal region or engaged in explicit sexual activity, including a deepfake that presents a person in that manner, if it is <\/span>reasonable to suspect<\/span> that the person does not consent to the recording being communicated.\u200d\u2002(contenu intime communiqu\u00e9 de fa\u00e7on non consensuelle)<\/span><\/p>\nTo order a permanent takedown, the Commission just needs to conclude there are reasonable grounds to believe that it is \u201creasonable to suspect\u201d a lack of consent. There\u2019s no requirement for the complainant to say \u201cthat\u2019s me and I did not consent to that.\u201d Unless you know the full context and background of the image or video, and know positively that there WAS consent, there will almost always be grounds to suspect that there wasn\u2019t. And remember that the deepfake provision doesn\u2019t specifically require that it be an actual living person depicted. It could be a complete figment of a computer\u2019s imagination, which is otherwise entirely lawful under Canadian law. But it would still be ordered to be taken down.\u00a0<\/span><\/p>\n<\/p>\n
The Commission has vast, vast powers. They\u2019re breathtaking, actually. These are set out in Part 7 of the Act. Here\u2019s part of these powers:<\/span><\/p>\n86\u2002In ensuring an operator\u2019s compliance with this Act or investigating a complaint made under subsection 81(1), the Commission may, in accordance with any rules made under subsection 20(1),<\/span><\/p>\n(a)\u2002summon and enforce the appearance of persons before the Commission and compel them to give oral or written evidence on oath and to produce any documents or other things that the Commission considers necessary, in the same manner and to the same extent as a superior court of record;<\/span><\/p>\n(b)\u2002administer oaths;<\/span><\/p>\n(c)\u2002receive and accept any evidence or other information, whether on oath, by affidavit or otherwise, that the Commission sees fit, whether or not it would be admissible in a court of law; and<\/span><\/p>\n(d)\u2002decide any procedural or evidentiary question.<\/span><\/p>\nAnd check out these \u201cRules of evidence\u201d (or absence of rules of evidence) for the Commission:<\/span><\/p>\n87\u2002The Commission is not bound by any legal or technical rules of evidence. It must deal with all matters that come before it as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.<\/span><\/p>\nIf the Commissioner holds a hearing \u2013 which is entirely in its discretion to determine when a hearing is appropriate \u2013 it must be held in public unless it isn\u2019t. There\u2019s a laundry list of reasons why it can decide to close all or part of a hearing to the public.\u00a0<\/span><\/p>\nI don\u2019t expect we\u2019ll see hearings for many individual complaints.<\/span><\/p>\n<\/p>\n
Inspectors<\/span><\/h2>\nThe next part is staggering. In section 90, the Commission can designate \u201cinspectors\u201d who get a \u201ccertificate of designation\u201d. Their powers are set out in section 91. Without a warrant and without notice, an inspector can enter any place in which they have reasonable grounds to believe that there is any document, information or other thing relevant to that purpose. Once they\u2019re in the business, they can\u00a0<\/span><\/p>\n(a)\u2002examine any document or information that is found in the place, copy it in whole or in part and take it for examination or copying;<\/span><\/p>\n(b)\u2002examine any other thing that is found in the place and take it for examination;<\/span><\/p>\n(c)\u2002use or cause to be used any computer system at the place to examine any document or information that is found in the place;<\/span><\/p>\n(d)\u2002reproduce any document or information or cause it to be reproduced and take it for examination or copying; and<\/span><\/p>\n(e)\u2002use or cause to be used any copying equipment or means of telecommunication at the place to make copies of or transmit any document or information.<\/span><\/p>\nThey can force any person in charge of the place to assist them and provide documents, information and any other thing. And they can bring anybody else they think is necessary to help them exercise their powers or perform their duties and functions.<\/span><\/p>\nThere\u2019s also a standalone requirement to provide information or access to an inspector:<\/span><\/p>\n93\u2002An inspector may, for a purpose related to verifying compliance or preventing non-compliance with this Act, require any person who is in possession of a document or information that the inspector considers necessary for that purpose to provide the document or information to the inspector or provide the inspector with access to the document or information, in the form and manner and within the time specified by the inspector.<\/span><\/p>\nHoly crap. Again, no court order, no warrant, no limit, no oversight.<\/span><\/p>\nIt\u2019s worth noting that most social media companies don\u2019t operate out of Canada and international law would prevent an inspector from, for example, going to California and inspecting the premises of a company there.\u00a0<\/span><\/p>\n<\/p>\n
Compliance orders<\/span><\/h2>\nThe Act grants the Commission staggeringly broad powers to issue \u201cCompliance orders\u201d. All these orders need is \u201creasonable grounds to believe\u201d. There\u2019s no opportunity for an operator to hear the concerns, make submissions and respond. And what can be ordered is virtually unlimited. There is no due process, no oversight, no appeal of the order and the penalty for contravening such an order is enormous. It\u2019s up to the greater of $25 million or 8% of the operator\u2019s global revenue. If you use Facebook\u2019s 2023 global revenue, that ceiling is $15 BILLION dollars.\u00a0<\/span><\/p>\n94\u2002(1)\u2002If the Commission has reasonable grounds to believe that an operator is contravening or has contravened this Act, it may make an order requiring the operator to take, or refrain from taking, any measure to ensure compliance with this Act.<\/span><\/p>\nThis is a breathtaking power, without due process, without a hearing, without evidence and only on a \u201creasonable grounds to believe\u201d. And what can be ordered is massively open-ended.\u00a0<\/span><\/p>\nYou may note that section 124 of the Act says that nobody can be imprisoned in default of payment of a fine under the Act. The reason for this is to avoid due process. Under our laws, if there\u2019s a possibility of imprisonment, there is a requirement for higher due process and procedural fairness. It\u2019s an explicit decision made, in my view, to get away with a lower level of due process.\u00a0<\/span><\/p>\n<\/p>\n
The Act makes the regulated operators pay to fund the costs of the Digital Safety Commission, Ombudsperson, and Office. Certainly it has some good optics that the cost of this new bureaucracy will not be paid from the public purse, but I expect that any regulated operator will be doing some math. If the cost of compliance and the direct cost of this \u201cDigital Safety Tax\u201d is sufficiently large, they may think again about whether to continue to provide services in Canada. We saw with the Online News Act that Meta decided the cost of carrying links to news was greater than the benefit they obtained by doing so, and then rationally decided to no longer permit news links in Canada.\u00a0\u00a0<\/span><\/p>\nFinally, I agree with other commentators in reaching the conclusion that bolting on amendments to the Criminal Code and the Canada Human Rights Act was a huge mistake and will imperil any meaningful discussion of online safety. Once again, the government royally screwed up by including too much in one bill.<\/span><\/p>\nThe bill makes significant additions to the Criminal Code. Hate propaganda offenses carry harsher penalties. The bill defines “hatred” (in line with Supreme Court of Canada jurisprudence) and creates a new hate crime: “offense motivated by hatred.”<\/span><\/p>\nMoreover, Bill C-63 amends the Canadian Human Rights Act. It adds “communication of hate speech” through the Internet or similar channels as discriminatory practice. These amendments give individuals the right to file complaints with the Canadian Human Rights Commission which, in turn, can impose penalties of up to $20,000. However, these changes concern user-to-user communication, not social media platforms, broadcast undertakings, or telecommunication service providers.<\/span><\/p>\nBill C-63 further introduces amendments related to the mandatory reporting of child sexual abuse materials. They clarify the definition of “Internet service” to include access, hosting, and interpersonal communication like email. Any person providing an Internet service to the public must send all notifications to a designated law enforcement body. Additionally, the preservation period for data related to an offense is extended.<\/span><\/p>\nAll in all, it is not as bad as I expected it to be. But it is not without its serious problems. Given that the discussion paper from a number of years ago was a potential disaster and much of that has been improved via the consultation process, I have some hope that the government will listen to those who want to \u2013 in good faith \u2013 improve the bill. That may be a faint hope, but unless it\u2019s improved, it will likely be substantially struck down as unconstitutional<\/span><\/p>\n<\/div>\n\n","protected":false},"excerpt":{"rendered":"\u00a0It is finally here: the long-anticipated Online Harms bill. It was tabled in Parliament on February 26, 2024 as Bill C-63. It is not as bad as I expected, but it has some serious issues that need to be addressed if it is going to be Charter-compliant. It also has some room for serious improvement […]<\/p>\n","protected":false},"author":1,"featured_media":66368,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[97],"tags":[6795,3767,20079,14072,35650,12685,2485,13325],"dealstore":[],"offerexpiration":[],"class_list":["post-66367","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legal","tag-bill","tag-blog","tag-canadas","tag-canadian","tag-harms","tag-law","tag-online","tag-privacy"],"yoast_head":"\n
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