AN ACT TO ENACT THE ONLINE HARMS ACT
Context
This post will explain:
- the purpose of the Bill,
- the content of the Online Harms Act,
- the changes it will make to current legislative statutes including: the Criminal Code, the Criminal Code, the Canadian Human Rights Act, and the legislation protecting against child pornography
In short, the Bill is aimed at:
- Strengthening the protection of children online,
- Limiting Canadian’s access to hateful propaganda, and
- Ensuring that social media companies are held accountable.
These goals will be accomplished through the creation of a new statute, the Online Harms Act, and a new regulator, the Digital Safety Commission.
Summary
Bill C-63 imposes three main responsibilities on significant social media platforms to ensure online safety.
Primary Duties of Social Media Platforms
1. Duty to Act Responsibly
Platforms have a duty to act responsibly by developing and implementing risk mitigation plans to address seven types of harmful content:
- Child sexual abuse
- Content encouraging self-harm among children
- Bullying material targeting children
- Nonconsensual adult content
- Violence incitement
- Promotion of violent extremism or terrorism
- Hate speech
2. Specific Takedown Duty (24-Hour Rule)
Requires platforms to remove reported child sexual or physical abuse content, as well as non consensual adult material, within 24 hours. Both users who upload and those who report such content can appeal the platform’s decisions, and these appeals must involve human review to ensure fairness and accuracy.
3. Duty to Protect Children
Necessitates that platforms allowing child and teen registrations must incorporate features designed to address their specific needs and vulnerabilities. This includes adopting industry-standard safety measures and those developed by regulators to protect young users.
Additional Protective Measures
Beyond these primary duties, platforms must also implement additional protective measures such as:
- Enabling users to block other users easily
- Providing human support for issues related to harmful content or content takedowns
- Establishing a content reporting system that includes a right to appeal for both content posters and reporters
- Working to identify and flag harmful content spread by bots
Implementing the Bill: The Digital Safety Commission of Canada
The enforcement of the Online Harms Act will be carried out by the new Digital Safety Commission of Canada (Para. 10).
| Body / Role | Structure & Appointments | Primary Function |
|---|---|---|
| Digital Safety Commission | 3 to 5 full-time members appointed by the Governor in Council for renewable terms of not more than 5 years (Para. 13). | Enforce the Online Harms Act and oversee platform compliance. |
| Digital Safety Ombudsman | Appointed for a 5-year term (Para. 29). | Support the public interest in systemic online safety issues and liaise with both users and victims. |
The Duties of Social Media Platforms
To meet the Bill’s goal of protection against harmful content, social media platforms will be required to implement “measures that are adequate to mitigate the risk that users of the service will be exposed to harmful content on the service” (Para. 55). These measures include:
- User Guidelines: Clear publication of user guidelines (Para. 57).
- User Blocking: Tools for blocking users (Para. 58).
- Reporting Systems: Accessible submission of user complaints and flagging content (Para. 59).
- Bot Labeling: Automated communications that are artificially amplified by computer programs or bots must be labelled as such (Para 60).
- Resource Person: Each service must designate a resource person who can be contacted by users and law enforcement (Para. 61).
- Digital Safety Plan: A Digital Safety Plan must be submitted on behalf of each regulated service to the Commission and the public detailing how it will meet the above requirements, the indicators used to assess progress, and the trends in online safety (Para. 62).
Penalties
The maximum penalty for a violation is set to not exceed 6% of the gross global revenue or $10 million, whichever is greater (Para. 101).
The penalty will be determined by considering: the nature and scope of the violation, previous history of compliance, the ability to pay, the benefit derived from committing a violation, and the purpose of the penalty (Para. 102).
The Duty to Protect Children
Social media platforms will be required to ensure their design features respect the protection of children by including age appropriate design (Para. 65).
- There must be means to limit children’s exposure to harmful content, sexual content, bullying, or content that encourages self-harm.
- Content of this nature that is flagged by an operator must be made inaccessible within 24 hours to all persons in Canada (Para. 67).
- Flagged content must be evaluated to determine if the flag is “trivial, frivolous, vexatious or made in bad faith” (Para. 68. s.1(a)).
Legislative Amendments to the Criminal Code and Canadian Human Rights Act
1. Criminal Code Amendments
Bill C-63 proposes the addition of hate crimes and hate propaganda crimes to the Criminal Code. A hate crime is defined as an offence “motivated by hatred based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression” (p. 61). Both a hate crime and hate propaganda offence will carry a maximum penalty of up to life in prison.
Furthermore, the Bill introduces a new peace bond provision, allowing a judge to impose conditions on individuals deemed likely to commit hate propaganda or hate crime offenses. These conditions, which can last up to two years, may include restrictions on communication and movements, drug or alcohol prohibitions, and weapons bans. Failing to enter into the peace bond can lead to imprisonment for up to one year, and violating its terms can result in up to four years of imprisonment.
2. Canadian Human Rights Act & Mandatory Reporting
Bill C-63 also proposes amendments to the Canadian Human Rights Act to make the communication of hate speech a “discriminatory practice” (p. 74), targeting speech that vilifies individuals or groups based on protected grounds of discrimination. Complaints will be directed to the Canadian Human Rights Commission where a tribunal will adjudicate them, imposing remedies such as orders to cease the practice, compensation up to $20,000 for victims, and fines up to $50,000.
The Bill would also amend the “Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service” by mandating a duty to notify law enforcement if there are reasonable grounds to believe an Internet service is being used to commit a child pornography offence.
Public Concern
On May 7, 2024, a coalition of civil society organizations and legal experts, including OpenMedia, Amnesty International Canada, and the Canadian Muslim Public Affairs Council, alongside over 20 other groups, sent an open letter to Attorney General Arif Virani.
The letter raises serious concerns about Bill C-63 and urges the government to separate Parts Two and Three of the Bill into independent legislation to allow for more thorough deliberation on the proposed amendments to the Criminal Code and Human Rights Act:
- The letter argues the changes are disproportionate and “unlikely to meaningfully reduce the expression of hate online, and risk creating a serious chilling effect on lawful speech and debate.”
- Moreover, these changes detract from the central goal of C 64 to combat illegal harmful content which negatively affects Canadians and especially youth.
Another significant concern arises with respect to the ability of Canadians to file complaints about online hate speech with the Canadian Human Rights Tribunal:
University of Windsor law professor Richard Moon suggests that in practice, this policy encourages weaponizing the Tribunal’s process since there is no barrier to submitting complaints and so may be used to overwhelm the Tribunal and render the process moot.
References
All paragraph citations are from the first reading of the Bill, available online in both French and English at https://www.parl.ca/Content/Bills/441/Government/C-63/C-63_1/C-63_1.PDF