Seriously Problematic Online Harms Act

Barbara Biley

The Trudeau government has once again presented so-called "anti-hate speech" legislation, Bill C-63, the Online Harms Act, which it says will "make online platforms responsible for addressing harmful content and for creating a safer online space that protects all people in Canada, especially children."

The previous proposed legislation, Bill C-36, was widely opposed and died on the order paper when the 2021 federal election was called. In the summer and early fall of 2021 the government conducted what it called public consultations on its plans to regulate "online harms" but then refused to make public the briefs and submissions that it had received. When the documents were released in response to a Freedom of Information request it was revealed that the vast majority were critical of the legislation.

The purpose of the legislation, according to the summary posted on the parliamentary website, is to "promote the online safety of persons in Canada, reduce harms caused to persons in Canada as a result of harmful content online and ensure that the operators of social media services in respect of which that Act applies are transparent and accountable with respect to their duties under that Act."

Part One establishes a body called the Digital Safety Commission of Canada to administer and enforce the Act on operators of social media and creates the position of Digital Safety Ombudsperson of Canada and the Digital Safety Office of Canada to support the Commission and the Ombudsperson. It sets out what is required of operators of social media and provides a complaint mechanism.

Part Two amends the Criminal Code to, among other things,

(a) create a hate crime offence of committing an offence under that Act or any other Act of Parliament that is motivated by hatred based on certain factors;

(b) create a recognizance to keep the peace relating to hate propaganda and hate crime offences;

(c) define "hatred" for the purposes of the new offence and the hate propaganda offences; and

(d) increase the maximum sentences for the hate propaganda offences.

Part Three amends the Canadian Human Rights Act to provide that it is a discriminatory practice to communicate hate speech or cause hate speech to be communicated by means of the Internet or any other means of telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination. It authorizes the Canadian Human Rights Commission to deal with complaints alleging that discriminatory practice and authorizes the Canadian Human Rights Tribunal to inquire into such complaints and order remedies.

Part Four amends An Act respecting the mandatory reporting of internet child pornography.

Part Five is a coordinating amendment.

The Conservative Party has announced its opposition, accusing the government of "banning opinions that contradict the prime minister's radical ideology" and the NDP is supporting the bill but seeking amendments "to enhance algorithm transparency."

The Canadian Civil Liberties Association (CCLA) has called for amendments, saying the bill's "draconian penalties" could put a chill on free speech. For example, someone found guilty of advocating genocide, could face life imprisonment, up from five years in prison. Already there are those in government saying the slogan in support of Palestine, "From the River to the Sea," represents genocide.

CCLA Executive Director Noa Mendelsohn Aviv said, "Bill C-63 risks censoring a range of expression from journalistic reporting to healthy conversations among youth under 18 about their own sexuality and relationships." She added, "The broad criminal prohibitions on speech in the bill risk stifling public discourse and criminalizing political activism."

Academic Michael Geist, the Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa, said the definitions provided for inciting violence, hatred, and bullying could be used in an "overbroad" manner. He also writes "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)." It is also the case that those making the complaints can remain anonymous and thus the person being accused is not able to confront or question their accuser.

Who decides what constitutes a hate crime and based on what criteria has become a very controversial and immediate matter for Canadians. Thousands of Canadians have taken action since the Israeli Zionist regime announced its aggression against Gaza on October 8 last year, in support of the Palestinian resistance and right to be. Government officials from Prime Minister Trudeau to provincial premiers, mayors and others have labeled such actions as promoting hate. Some have gone so far as to accuse individuals and organizations which oppose Israel's war crimes of supporting genocide, i.e. the events of October 7 when the Palestinian resistance carried out the Al Aqsa flood operation in Israel. Since the first mass action in Toronto on October 9, condemned by Ontario Premier Ford and Mayor Chow of Toronto of promoting "hate," policing of all actions supporting the Palestinian people is handled by the Toronto Police Services Hate Crimes Unit.

The government's intention in this legislation is to give itself the means to regulate and censor web pages and social media accounts, and those who run them, in the name of protecting against "harm." Canadians already have experience with the state targeting the views and activities of individuals and organizations, such as those supporting Palestine, Indigenous resistance protecting water and land, opposing the racism of the state, abuse against women and girls, LGBTQIA2S+ and calling for fundamental change. False claims and charges of terrorism, "extremism" and "hate" by the state are also known.

This legislation is to increase the ability of the state to potentially shut down web pages and social media accounts they decide are "hateful," and penalize the people involved, including jailing them. It is also to suppress discussion amongst Canadians about what the criteria to determine a hate crime would be so that it is not used to criminalize the human right to speak. Discussion is eliminated on why use of "hate" for a crime is needed, given that it is invariably defined in an arbitrary manner harmful to the people and given that laws already exist concerning discrimination. Experience also makes clear that these laws do not block racist and pro-Nazi propaganda, by the state or others, while they do attack the people's rights to speech and conscience.

The legislation and all the disinformation of "hate" as the problem, not only affects Canadians' civil rights -- which governments already limit using what they call "reasonable limits" -- but their human rights as well. Without the conditions for people to speak and discuss freely, communication is impeded which means people cannot work out a way forward for themselves and the society they are part of in all their relations.

Bill C-63 will put into law and regulation the most egregious attacks on rights that the state and the interests it serves considers necessary to suppress the people's movements, against the ongoing colonial repression against the Indigenous Peoples, for an anti-war government and for peoples' empowerment. The past five months have seen a huge increase in the medieval practice of defaming people by launching personal attacks on them, sowing doubt publicly about their character and using the power of an office to fire people for their views.

The legislation portrays the Canadian people as racist, as the promoters of hate, when it is clear that the state is the one that organizes and inspires racist attacks against various collectives of the people. Use of disinformation and legislation like the Online Harms Act enforces a taboo on any discussion while those in power who commit crimes against the people are protected. The aim is to increase the police powers of the government to suppress and criminalize the human right to speak and organize while striving to split the polity, all while claiming to protect them. It must not pass!

This article was published in
Volume 54 Number 23 - March 28, 2024

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