A federal bill to address online harassment, bullying and hate has aspects to admire and others to cause concern. What happens in the committee process will determine the success of the proposed law.
That is the take of two experts – including one who had a hand in drafting the legislation. The devil, as always, is in the details of balancing free expression with the right to be free from threats and harassment.
Dr. Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, who also serves on the advisory board of the Electronic Frontier Foundation, was joined in a recent online panel by Dr. Emily Laidlaw, Canada Research Chair in Cybersecurity Law and associate professor in the faculty of law at the University of Calgary. Her recent work includes projects on online harms, misinformation and disinformation, and she co-chaired the expert group that advised the federal government on the development of the Online Harms Bill, which is known as Bill C-63. The virtual panel, on April 17, was presented by the Centre for Israel and Jewish Affairs and moderated by Richard Marceau, CIJA’s vice-president, external affairs, and general counsel. More than 850 people registered for the event, indicating what CIJA board chair Gail Adelson-Marcovitz indicated is a depth of interest, and perhaps concern, about the bill.
Geist explained that the new bill is a result of years of work, following the federal government’s withdrawal of an earlier attempt at addressing the problem of online harms.
Bill C-63 is really three separate concepts rolled into one. It would amend the Canadian Human Rights Act and the Criminal Code, as well as introduce a new Online Harms Bill. Together, the components would codify currently inconsistent approaches to the problems.
The bill would redefine “hatred” in the Criminal Code and define a new crime of “offence motivated by hatred.” That offence, as well as advocating or promoting genocide, could lead to life imprisonment.
Amendments to the Canadian Human Rights Act would add the “communication of hate speech” via the internet or other telecommunication technology as a discriminatory practice. Individuals would be empowered to bring a complaint before the Canadian Human Rights Commission, which could penalize offenders up to $50,000. The law, if passed, would affect public communications, like social media posts, not private messaging or emails.
Separate components of the bill would make it easier and quicker to address specific offensive content, such as “revenge porn” and posts that could harm children, encourage suicide or bullying or otherwise endanger young people.
A digital safety commissioner and ombudsperson would help guide individuals through the process of dealing with bullying or other issues related to the law.
Geist said many legal experts who seek to balance freedom of speech with freedom from abuse “breathed a sigh of relief” after the federal government abandoned earlier efforts and relied for the new bill on expert advice.
“It’s a pretty good starting point,” Geist said. “We know the broad brushstrokes of what that might include but there is a lot of uncertainty still, so it’s easy to like it when we don’t know the specifics.”
Geist and Laidlaw agreed on most points but had some differences around oversight. Geist said the bill appears to grant enormous powers to a new digital safety commissioner. The idea of life imprisonment for an online comment, he added, may be a sticking point. “I find that hard to justify,” he said.
Laidlaw said the new office of ombudsperson is an important step in helping individuals navigate online hate and harassment. The ombudsperson would be able to pass specific information on to the digital safety commission, whose mandate includes education and research supported by a digital safety office.
The bill would also place new obligations on corporations that run online platforms, like social media companies. At present, Laidlaw said, some companies, notably X (Twitter), are not taking the problem very seriously.
While Jewish advocacy organizations have long advocated for legal responses to hate speech, Geist warned of a double-edge sword.
“Could somebody who is supportive of Israel will be accused of promoting genocide?” he asked.
Geist upended the binary assumption of harassment and free expression, noting that the idea that limits on hate speech could chill expression ignores the existing, difficult-to-measure effects of online (as well as offline) harassment and bullying.
“There is already a chilling effect for anyone in our community and, frankly, in a number of communities, that speaks out on these issues,” he said. “The backlash that you invariably face causes, I think, many people to [reconsider] whether they want to step out and comment, and it’s not just online. There’s a chilling effect offline as well. These issues are very real and many of them will not be solved by legislation no matter what the legislation says.”
He fears a barrage of complaints, many vexatious, from all sides of many contentious issues.
While there is a needle-in-a-haystack challenge in addressing online harms, Geist said, addressing the problematic major players could have a broad impact, though no one believes online hate and bullying can be completely eradicated.
“The legislation talks about mitigating these harms, it doesn’t talk about eliminating them,” he said. Social media platforms, he believes, are looking for guidance on these issues and will be amenable to adhering to legislation. Moreover, he said, Canada’s proposals are somewhat belated responses that would put us roughly in line with the European Union, Australia, the United Kingdom and other jurisdictions.
The inability to erase hate and harassment is not an excuse to do nothing, Laidlaw said.
“Enforcement has always been an issue,” she said. “But I don’t think it’s a reason not to pass laws.”
Laidlaw took exception to criticism that the new bill would represent government censorship. The proposed digital safety commissioner would be an independent body comparable with the existing privacy commissioner.
“Where there is some risk is in the fact that, in the end, government appoints the individuals,” she said. Still, the appointees would need to be approved by Parliament, not just the government in office.
“And remember,” she added, the commissioner’s “oversight is of companies, not of individuals. They’re not making individual content decisions or holding individuals accountable here.”
The commission would not be subject to legal rules of evidence, making it possible to immediately take down things such as child porn, encouraging suicide or other especially egregious posts.
Geist said this significant power demands that the government spell out more clearly the limitations of the commission.
“At a minimum, it seems to me that it is incumbent on the government to flesh out in far more detail where the limits, where the guardrails, are around the commission, so that we aren’t basically adopting a ‘trust us’ approach with respect to the commission,” said Geist.
Parliament is expected to take up consideration of the bill in committee soon and Laidlaw argued that some aspects deserve speedy passage while others require far more sober consideration.
“The Online Harms Bill could be passed with minor tinkering,” she said. The Criminal Code provisions, she said, give her serious concerns and deserve major revisions or complete scrapping. She also struggles with changing the Canadian Human Rights Act.
Geist agreed on taking the bill apart.
“I would separate out the bill,” he said. Criminal Code and Human Rights Act amendments deserve much deeper consideration, he said. The online harms piece, he said, could be tidied up and passed with tweaks.
