As online harms bill splits in two, advocates continue seeking amendments

Canada’s proposed online harms legislation now faces being split in two – a move that has for months been called for by civil liberty advocates but which Liberal Justice Minister Arif Virani says was made primarily to push the legislation through a stalled House of Commons. Virani (Parkdale—High Park, Ont.) told reporters Wednesday, Dec. 4 that what was originally a four-part bill pitched by the Liberals, known as Bill C-63, will be divided into two parts. The large-scale bill was originally designed to, among other points, require that social media operators take more responsibility for harmful content appearing on their platforms, as well as tackle changes to the Canadian Human Rights Act and the country’s Criminal Code meant to penalize people for hate-related offenses. While there has been some support for the proposed requirements for social media platforms, even more concerns have been raised by civil liberties advocates, legal, and privacy experts over whether or not the changes to the Human Rights Act and Criminal Code could threaten free speech. That has led some advocates to call for a split of the bill over the past several months, recommending that the government focus on enacting the first part – dealing specifically with online harms – before considering the changes to the Human Rights Act and Criminal Code. While Virani acknowledged that people had been “suggesting” the split in previous months, he did not name that as the primary reason for the change when making his announcement. He said the weeks-long filibuster of the House has led to too much time being lost for work on the bill. Pre- and post-split Bill C-63 The long-awaited bill was introduced in February by Virani and lays out a regulatory framework covering major social media platforms, user-uploaded adult content services, and live-streaming services. Along with a series of legislative reforms, the bill is focused on reducing childrens’ exposure to harmful content, creating a formal content reporting system, and increasing the punishments for hate crimes. More specifically, the bill is targeted towards seven categories of “harmful content,” including content that sexually victimizes a child, incites violent extremism, induces a child to harm themselves, and intimate content shared without consent, including deepfakes. Online services that pass a certain user threshold – to be determined by regulations – will be required to provide tools for users to flag harmful content, create an internal point of contact for user complaints, and identify and report on measures taken to reduce exposure to harmful content. The bill also imposes on platforms the duty to protect children through age-appropriate design. Examples the government gave included parental controls, content warning labels, safe search settings, and rules around targeted advertising and data collection. Enforcing these rules will be the responsibility of the proposed Digital Safety Commission, made up of five members to be appointed by the governor in council. The bill also proposes the creation of a Digital Safety Ombudsperson, whose role will be to advocate for the protection of users and provide them with information on the complaints process. It also calls for mandatory reporting of internet child pornography by persons who provide an internet service. The rules for online platforms, the duties of the safety commission, and mandatory reporting of child porn will constitute the first half of the split bill. They were originally parts one and four of C-63. The second half of the split bill will focus on the proposed amendments to Canada’s Criminal Code and the Human Rights Act – which were parts two and three of the original bill. The change to the Criminal Code could include more severe penalties for crimes already included in the code, all the way up to life in prison, if a hate-motivated offence is attached to them. READ MORE: - Canada’s Bill C-63 takes aim at online hate crimes and child exploitation - Senator questions genocide provisions of Online Harms Bill Virani told reporters last week that the split bill will “proceed on different tracks.” It is currently under pre-study by the House justice committee. He has not yet laid out specifically how the split bill will work its way through the House of Commons. “Right now, we are doing the same text in two bills, and we’re proceeding with a pre-study at the justice committee… but our goal is to work to find consensus amongst parliamentarians on the things that we can agree to immediately, and I believe that protecting kids from violent threats, from child sex predators, and from things like revenge porn should be a priority for everybody,” he said. Why split the bill? Some advocates have been calling for a split of the bill separating part one from parts two and three, suggesting part one could be passed with some amendments – fewer than they believed necessary for other parts of the bill – or even fast-tracked. Matt Hatfield, executive director of digital rights advocacy group OpenMedia, told The Wire Report in September that the proposed Digital Safety Commission would be “extraordinarily powerful,” and that there should be “very clear expectations and mandate put on that regulator so they can't just go way off mission.” Despite there being “a lot of small improvements that need to be made,” Hatfield argues that the single most important update needed to the bill is a clear consideration of free expression and any privacy impacts of the regulations or digital safety plans required of social media operators. Before announcing the split, Virani had defended the four-part bill as being a package and asserted that the bill does not undermine free speech, but rather encourages people to participate in online debate safely. Hatfield is also concerned about platforms overzealously pulling content from their sites before it is even concretely determined to be harmful under the new rules, because they are worried about the legal risks they may face, because they want to make sure their digital safety plans appear strong, or because the newcoming regulator simply says “do everything you possibly can to make people safe.” “ there’s absolutely no other consideration put against that, that’s where you would get a lack of proportional response, potentially.” Anaïs Bussières McNicoll, director of the Canadian Civil Liberties Association’s (CCLA’s) fundamental freedoms program, told The Wire Report following last week’s announcement that splitting the bill would be a step in the right direction. “Now we need committee members to be open to passing important amendments to fix gaps in the bill…,” she said. As it stands, McNicoll said, the act would impose “very broad duties” on social media operators that might lead them to act in a way that is “rights limiting,” such as proactively monitoring online content on their platforms, “in an attempt to fulfill the vague and broad statutory duties.” “ would sound a lot like state surveillance by proxy,” McNicoll argues. McNicoll also expects to hear more from experts on algorithmic transparency during committee hearings, if social media operators are planning to use algorithms to manage their duties under the act. What other amendments do some advocates want? In a more recent interview, following Virani’s announcement that the bill would be split, Hatfield told The Wire Report that it is a “huge positive step forward.” “We have, most likely, very little time left in this Parliament and if they want to get anything done here, the thing to do is get part one done, because it's the part that I think is most ready to go. It’s not without issues, but relatively uncontroversial,” he said. “Hopefully the justice committee can use their time to get it right and get it passed.” Hatfield reiterated the importance of adding free speech and privacy considerations to the bill. “Right now, if I’m a court looking at the current version of the bill, I could say ‘Well, you were really only told to make people safe. I guess you made people safe.’ We need that kind of interpretive language added,” Hatfield said. In a September interview with The Wire Report, privacy expert Brenda McPhail agreed that, as the bill currently stands, matters of privacy end up in a grey area. Leaving such issues with the courts does not work, she says, because of their focus on specific circumstances. “Courts aren't the best place to make strategic decisions about the direction of society. Courts are about solving an individual problem based on an individual set of facts and the relevant details as they come from law,” said McPhail. She suggests this is where the role of a well-thought-out regulator could come into play. “A regulator has more scope to … issue guidance, to help guide thinking around the legislation in a way that a court simply cannot.” Are amendments likely to be made? McPhail noted that Virani and the government have appeared open to constructive criticism and sensible amendments to the bill. Virani said last week that once the two portions of the split bill reach committee, he’s “perfectly willing” to see the study entertain other changes. That said, McPhail noted it will likely take a conscious effort not to rush it into law. “The current political state we're in, and the political uncertainty of the minority Parliament with the end of the supply and confidence agreement and the very public efforts by the Conservative leader to bring down the government at the earliest possible opportunity, means that it's probably reasonable to worry about corner cutting.” The justice committee pre-study on the split bill continues the evening of Monday, Dec. 9. It expects to hear from several individuals, including McNicoll and Hatfield, as well as legal experts. hdaley@thewirereport.ca With files from Phalen Tynes-MacDonald

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As online harms bill splits in two, advocates continue seeking amendments

Regulatory | By Hannah Daley | December 9, 2024

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By Hannah Daley
| December 9, 2024