Online Harms Bill

Legislating a fine line

Vancouver Police last week arrested a woman for praising the Oct. 7 terrorist attacks. The woman, who multiple reports say is Charlotte Kates, a leader in a group called Samidoun Palestinian Prisoner Solidarity Network, was later released as police develop their case to present to the Crown for possible charges.

News of the arrest was met with a level of satisfaction among Jewish community organizations. Kates and Samidoun have been sources of outrage and concern for years. The group is routinely described as having “direct ties to the Popular Front for the Liberation of Palestine (PFLP),” which is designated as a terrorist entity under the Criminal Code of Canada. Canadian Jewish organizations have called for Samidoun to receive a similar censure – as it has in Germany, where it is a banned organization, and in Israel, where it is designated as a terrorist entity.

Kates, a British Columbia woman who is married to Khaled Barakat, a senior member of the PFLP, was arrested in relation to recorded statements made outside the Vancouver Art Gallery last month. There, she referred to several terrorist organizations as heroes and described the Oct. 7 attacks as “the beautiful, brave and heroic resistance of the Palestinian people.” She led a crowd of hundreds in chants of “long live Oct. 7.”

Emergence of the video led to absolute condemnation from BC Premier David Eby.

“Celebrating the murder, the rape of innocent people attending a music festival, it’s awful,” said the premier. “It’s reprehensible, and it shouldn’t take place in British Columbia. There is clearly an element of some individuals using an international tragedy to promote hate that’s completely unacceptable.”

Kates is banned from participating in public protests for five months, according to a statement released by Samidoun. An investigation is underway and it will be up to Crown prosecutors to determine whether charges are laid and the case goes to trial.

In announcing the arrest, Vancouver police spokesperson Sgt. Steve Addison explained the line police walk.

“We defend everyone’s right to gather and express their opinions, even when those opinions are unpopular or controversial,” said Addison. “We also have a responsibility to ensure public comments don’t promote or incite hatred, encourage violence, or make people feel unsafe. We will continue to thoroughly investigate every hate incident and will pursue criminal charges whenever there is evidence of a hate crime.”

The arrest comes as the federal government begins a process of reviewing Canada’s approach to hate-motivated expression. New legislation beginning its way through the wending process of Parliament is focused especially on “online harms” and involves a multi-pronged approach that would see amendments to the Criminal Code, the Canadian Human Rights Act and new laws addressing cyber-bullying, “revenge porn,” encouragement of self-harm and other actions.

The bill (click here for story) is part of an ongoing effort to address the social and technological challenges of hate-motivated crimes, as well as the range of dangers presented to children and others by online predators, bullies and extortionists.

The federal government’s efforts, long delayed and inevitably controversial, are part of an age-old effort to walk a line between the right to free expression, on the one hand, and the right, on the other hand, for people to be free from harassment and threats based on personal identity or other factors. Any discussion of balancing these contending rights – which is anything but an exact science – is destined to disappoint or anger people on both sides.

The next steps in the current legal investigation – whether it proceeds to criminal charges and, if so, how the case proceeds and concludes – will also not satisfy everyone, if anyone. Indeed, it is a factor of this sort of case almost exclusively where many argue the challenging position that, in the words of Voltaire, “I disapprove of what you say, but I will defend to the death your right to say it.”

Few today would defend to the death the right of anyone to glorify Oct. 7 (or anything else, probably), but the point is that the right of free expression is considered by many to be sacrosanct. This has always been a core differentiator between our society and that to which we so often compare ourselves, the United States, whose constitution prioritizes precisely this sort of freedom.

An absolutist position is much easier for courts to adjudicate. Drawing lines in moral conundrums is a much more challenging undertaking.

As we watch this one case proceed locally, we will also be carefully observing the broader, legalistic and philosophical disputations occurring in Parliament as Bill C-63 proceeds through the creation process. The outcome, in both instances, will be necessarily imperfect. The hope is that they should be as just as human endeavours can be.

Online harms mooted

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.

image - On April 17, Dr. Michael Geist of the University of Ottawa spoke as part of a CIJA panel discussion on the Online Harms Bill — On April 17, Dr. Michael Geist of the University of Ottawa spoke as part of a CIJA panel discussion on the Online Harms Bill. *(screenshot)*

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.

image - Dr. Emily Laidlaw of the University of Calgary, who joined the CIJA panel discussion on April 17 — Dr. Emily Laidlaw of the University of Calgary, who joined the CIJA panel discussion on April 17. (screenshot)

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.

Let’s talk about new bill

The federal Liberal government has introduced a new Online Harms Bill. The bill is intended to address two primary areas of concern – hate crimes against groups and posts that harm individuals, such as those that bully children – and recognizes a range of what are clearly serious problems.

If passed, the new law would require social media platforms and “user-uploaded adult content” websites to delete offending posts within 24 hours. These could include posts that encourage self-harm, target a child for bullying or are examples of “revenge porn” – the distribution of, for example, nude photos of a former partner.

The bill also proposes making hate-motivated crimes a separate offence. Hate motivation can currently be considered in the sentencing phase as an aggravating context. The bill would amend the Canadian Human Rights Act to have the Canadian Human Rights Commission address some of these concerns.

Maximum penalties would be severely stiffened. For example, the maximum sentence for advocating genocide online would be life imprisonment, up from five years.

The law would also create a panel, a “digital safety commission,” to oversee online content and it would reclassify hate speech as discrimination under the Criminal Code. A digital safety ombudsperson would support victims and guide social media companies. Companies that break the rules could be fined up to $10 million or six percent of their global revenues. Private messages between individuals, like email, would not fall within the prohibitions.

Since Section 13 of the Canadian Human Rights Act was repealed a decade ago, commentators and activists, including Jewish organizations, have been calling for something to address serious issues around online content. This is the government’s overdue response – overdue by its own admission, having promised during the last election campaign to advance such a bill in its first 100 days if reelected.

Opposition parties fell into sadly predictable lines. New Democrat leader Jagmeet Singh said his party will vote for the bill and condemned the government for waiting so long. Conservative leader Pierre Poilievre turned his hyperbole hose on full force, calling the bill part of “Justin Trudeau’s woke authoritarian agenda.”

“What does Justin Trudeau mean when he says the words ‘hate speech’? He means the speech he hates,” said Poilievre. “You can assume he will ban all of that.”

Surely parliamentary democracy can come up with something more nuanced between “Faster, faster! More, more!” and “We’re all headed for the gulags.”

The bill was tabled last week and will go through committee before coming back to the House of Commons. The committee phase is when elected officials examine the details of proposed legislation and we trust (despite the above caveats) that sober consideration will be given to balance the right to free expression and the legitimate need to protect individuals and groups from harm.

The experience of now-defunct Section 13 should be an object lesson for politicians considering the new law. The section was finally killed after showing itself to be both too weak to address the realities of an online world that didn’t exist when the law was originally drafted, yet strong enough to drag individuals and institutions with controversial but probably reasonable speech (for example, Maclean’s magazine and commentator Mark Steyn) before something resembling a Cold War show trial.

Justice Minister Arif Virani responded to concerns over free expression.

“It does not undermine freedom of speech. It enhances free expression by empowering all people to safely participate in online debate,” he said. This reflects an emerging approach to online dialogue, in which traditional ideas of free speech are balanced with the reality that some people are excluded from participation through harassment and threats, which may be a fair assessment.

Outrage at hate speech is an appropriate response, but one aspect of the bill could have the effect of turning reasonable people off it. Few would seriously believe that a judge is going to send someone to prison for life (ie., 25 years) for a late night, drunken rant that the law characterizes as incitement to genocide. However, the fact that the law would permit precisely that outcome makes the whole exercise faintly preposterous, like the exasperated parent who shouts, “You’re grounded for life!” Appearance can be reality and that aspect of the bill looks ridiculous. Moreover, all of us should apply sober second thought when advocating for the expansion of the prison system – imprisonment is not a solution to hate.

Canada has always taken a different approach to expression than our First Amendment cousins in the United States. Absolutism, which is the American approach, is comparatively easy. The more nuanced approach of finding a balance is an organic, always shifting challenge.

Most Canadians do not pay a great deal of attention to the goings-on in parliamentary committees. This would be a good time to start. Last week’s tabling of the Online Harms Bill should be the beginning of a national conversation.