Understanding Bill C-63: The Online Harms Act

In early 2024, the Canadian federal government tabled Bill C-63, also known as the Online Harms Act. This ambitious piece of legislation aims to create a new regulatory framework for online platforms to better protect Canadians, especially youth, from harmful content. The bill is the government's latest attempt to address the proliferation of online harms after a previous effort in 2021 failed to advance. Bill C-63 seeks to compel online services to act responsibly by identifying and mitigating risks associated with seven categories of harmful content: child sexual exploitation content, non-consensual intimate content, content that incites violence, content that foments hatred, content used to bully a child, content that induces a child to harm themselves, and terrorist content.

Key Pillars of the Legislation

The Online Harms Act is built on several key pillars designed to create a safer digital environment. Central to its structure is the establishment of three new bodies: a Digital Safety Commission, a Digital Safety Ombudsperson, and a Digital Safety Office.

The Digital Safety Commission: This new regulatory body would be granted significant powers to oversee and enforce the act. It would be responsible for administering the new regulations, conducting audits of online platforms, and issuing compliance orders. Crucially, the Commission would have the authority to levy substantial administrative monetary penalties on non-compliant platforms, with fines potentially reaching up to 6% of a company's global revenue.

Criminal Code Amendments: The bill proposes several changes to the Criminal Code. It introduces a new standalone hate crime offence for any existing offence motivated by hatred, which could carry a maximum penalty of life imprisonment. It also significantly increases the maximum punishment for advocating or promoting genocide from five years to life in prison, and for the willful promotion of hatred from two years to five years.

Canadian Human Rights Act (CHRA) Amendments: Perhaps the most controversial aspect of Bill C-63 is its proposed amendment to the Canadian Human Rights Act. It seeks to reintroduce a modified version of Section 13, which was repealed in 2013. This would once again allow individuals to file complaints with the Canadian Human Rights Commission against those who post what is defined as "hate speech" online. The bill defines hate speech as content that is "likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination." Those found to have posted hate speech could be ordered to pay victims up to $20,000 in compensation and up to $50,000 in penalties to the government.

The Arguments For and Against

The introduction of Bill C-63 has been met with both strong support and vehement opposition, creating a widespread debate over free speech and regulation across the country.

Support for the Bill

Proponents, including the federal government and various child safety advocacy groups, argue that the legislation is long overdue. They contend that self-regulation by large technology companies has failed to adequately protect users from severe harms. The bill's supporters emphasize its focus on protecting children from sexual exploitation and cyberbullying. They argue that the financial penalties are necessary to ensure that powerful global tech companies take their responsibilities to Canadian users seriously. The government maintains that the bill is carefully drafted to target only the most extreme and harmful forms of content, and that it includes provisions to protect freedom of expression.

Criticism and Concerns

Conversely, a broad coalition of critics, including civil liberties organizations, digital rights experts, and opposition parties, has raised alarms about the bill's potential consequences. The primary concern revolves around freedom of expression. Critics argue that the definition of "hatred" is vague and subjective, which could lead to a chilling effect on legitimate political discourse and artistic expression as users and platforms become overly cautious to avoid complaints.

The reintroduction of the CHRA provision is a major flashpoint. Opponents fear it could be weaponized to silence unpopular opinions, bogging down the human rights system with frivolous or malicious complaints. The potential for life imprisonment for hate-related offences has also been criticized as disproportionate. Furthermore, concerns have been raised about the vast powers granted to the Digital Safety Commission, with some arguing it creates an overly powerful and potentially politically influenced censorship body.

Insights

Why It Matters: This legislation marks a pivotal moment in Canada's approach to digital governance. It attempts to balance the scales between protecting citizens from genuine online dangers and upholding the fundamental right to freedom of expression, a core tenet of Canadian democracy. The outcome will set a precedent for how Canada regulates the internet for decades to come.

Impact on Canada: If passed as is, Bill C-63 will fundamentally alter the responsibilities of online platforms operating in Canada. For users, it could mean safer online interactions but also a more sanitized and potentially less open internet. The legal and social ramifications of empowering a commission to regulate online speech and re-enabling human rights complaints for online content will be profound and far-reaching.

What to Watch: The legislative process will be critical. Observers should watch for amendments proposed during committee hearings, which could address some of the concerns raised by critics. The selection of the first Digital Safety Commissioner will also be a key indicator of the government's intended enforcement approach. If the bill becomes law, expect legal challenges based on the Charter of Rights and Freedoms, particularly concerning freedom of expression.

Business Implications

The Online Harms Act places significant new obligations on a wide range of online services, from major social media networks to smaller user-generated content platforms. Companies will need to develop and implement comprehensive digital safety plans, conduct risk assessments, and be prepared for audits by the Digital Safety Commission. The costs of compliance, including investments in content moderation technology and personnel, could be substantial. The threat of massive fines for non-compliance creates a powerful incentive for platforms to adhere to the new rules, potentially leading them to be more aggressive in removing content that falls into legal grey areas. This could impact the business models of content creators and digital advertisers who rely on these platforms.

Conclusion

Bill C-63 represents a significant and complex attempt by the Canadian government to tackle the multifaceted problem of online harms. It pits the urgent need for online safety against cherished principles of free expression. As the bill makes its way through Parliament, the central challenge for lawmakers will be navigating the complexities of online safety and free expression to craft a law that is both effective in its protective aims and respectful of the democratic rights of Canadians.