After passing Bills C-11 and C-18 this legislative session, Ottawa is expected to introduce its online-harms bill this fall. The lengthy consultation process for this upcoming bill has been marred by accusations of non-transparency and pushback by experts and advocacy groups.
The online-harms bill could require social media platforms like Facebook, Instagram, X (formerly known as Twitter), YouTube and TikTok to block or remove five categories of content: hate speech, terrorism propaganda, incitement to violence, child sexual exploitation and revenge porn.
Michael Geist, a law professor at the University of Ottawa who holds the Canada Research Chair in Internet and E-commerce Law, believes the online-harms bill will be the most controversial bill in the Liberals’ three-part digital regulation plan.
“Given the fierce debate and opposition to [Bills C-11 and C-18], it may be hard to believe that online harms will be even more contentious,” Geist wrote in an April blog post. “Yet that is likely, both because the bill will have enormous implications for freedom of expression and because Canadian Heritage… faces a significant credibility gap on the file.”
‘Public in the dark’
Canadian Heritage, the department responsible for developing the online-harms legislation, has been conducting consultations on a framework for the bill since 2021 when it released a discussion guide and technical paper.
The department received hundreds of responses on its framework. It did not initially release these submissions, citing privacy and business information concerns.
In its public executive summary of the consultations, Heritage Canada stated that “There was support from a majority of respondents for a legislative and regulatory framework, led by the federal government, to confront harmful content online.”
But the government’s own internal summary of those public consultations revealed that in fact just five per cent of respondents supported the government’s legislative proposal, according to documents released via an Access to Information request filed by Geist.
“These differences suggest Canadian Heritage kept the public in the dark,” Geist wrote in his blog. “Given the need for trust in developing online harms proposals, it alone could be viewed as disqualifying.”
‘Challenging to justify such a scheme’
Heritage Canada subsequently conducted further consultations with experts and select stakeholders throughout 2022, with the results published online.
The results show that participants disagree on key elements of the framework. According to a concluding workshop summary, experts disagree even on whether platforms should be compelled to remove harmful content or proactively monitor for it.
“It is very challenging to justify such a scheme as it introduces risks to fundamental rights and freedoms under the Charter,” experts noted about a proactive monitoring requirement.
In a March 2023 letter to Heritage Canada, the Canadian Civil Liberties Association and 12 other civil society organizations applauded the government for conducting further consultations, but expressed concern that it remains “unclear how this work will inform future legislation.”
While the government’s proposed legislation is expected in the fall, it has not publicly released an update to its 2021 discussion paper or technical guide to clarify the direction that the online-harms bill will take.
Companies wary
The governments’ other digital regulation laws, Bill C-18, the Online News Act, and Bill C-11, the Online Streaming Act, have prompted severe responses from industry.
“I think there are already certainly some companies that are increasingly wary of the regulatory climate,” Geist told Canadian Affairs.
The Online News Act obliges Meta, the parent company of Facebook and Instagram, and Google to pay news publishers for news links shared over their platforms. In response, Meta has blocked Canadian news publishers from publishing articles on its platforms. Google has threatened to do so, although it is continuing to negotiate with the government.
The Online Streaming Act brings streaming services such as Netflix and Spotify under the purview of Canadian broadcasting legislation. Many online personalities and creatives argued the act will make it more difficult for their content to reach an international audience.
“If we have a lesson that comes out of Bill C-18 it is that there are consequences to these policy choices,” Geist told Canadian Affairs.
“And that’s not to suggest that we can’t regulate. We absolutely can. But we should not be so naive as to think that everybody in this space — including the companies who may be directly affected by the regulation — won’t calculate the impact of those regulations on their businesses and act accordingly.”
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