Online Harms Act

The Online Harms Act (French: Loi sur les préjudices en ligne), commonly known as Bill C-63 or the Online Harms Bill, is a bill introduced in the 44th Canadian Parliament. It was first introduced in 2021 by Justice Minister David Lametti during the second session of the 43rd Canadian Parliament as Bill C-36. A revised version was introduced on February 26, 2024, by Minister of Justice Arif Virani during the first session of the 44th Canadian Parliament.^[1]

The Act would create a new duty of care of large social media platforms, requiring them to take action against "harmful" content such as hate speech; extremism and terrorism; child bullying, self-harm, and sexual abuse; and intimate content shared without consent. They would also be required to employ age-appropriate design features when the platform is used by a minor. The Act would establish a federal Digital Safety Commission and Digital Safety Office to enforce its provisions.

In March 2019, following the Christchurch mosque shooting, Minister of Public Safety and Emergency Preparedness Ralph Goodale stated that the government was planning to carefully evaluate whether social media platforms should be required to censor hate speech and extremist content.^[2] In 2021, Justice Minister David Lametti first introduced Bill C-36, which would aim to take down online hate speech and fine those who espouse it for up to $50,000. He stated that the "online world" has become the new public square and "that public square should be a safe space".^[3]

The bill failed to pass before the dissolution of Parliament for the 2021 federal election. Work on a new draft began in February 2022, with Minister of Heritage Pablo Rodriguez appointing an advisory group. The updated bill incorporated feedback from groups who felt that the proposed regulations would harm free speech, and a requirement for platforms to remove harmful content within 24 hours would "incentivize platforms to be over-vigilant and over-remove content, simply to avoid non-compliance".^[4][5]

The revised bill was modelled after the UK Online Safety Act 2023, proposing a "general framework that compels platforms to assess the risk posed by harmful content on their services", and "incentiviz[es] platforms to manage risk when developing their products." It would primarily target public posts on social networks and platforms that "pose significant risk in terms of proliferating harmful content", and establish a digital safety commission.^[6] An advisory group recommended that the bill also cover "misleading political communications", "propaganda", or content that promoted "unrealistic body image".^[6]

In July 2024, the Parliamentary Budget Officer estimated the bill would cost around $201 million over five years to implement.^[7]

The bill as introduced focuses on amendments to the Criminal Code, the Canadian Human Rights Act, and internet child pornography laws to enhance regulatory scrutiny surrounding specific types of "harmful" online content and activities, including fomenting hatred, inciting violence, inciting violent extremism or terrorism, "sexually victimiz[ing] a child or victimiz[ing] a survivor", communicating intimate content without consent, bullying a child, and content that induces a child to perform self-harm. The bill establishes the Digital Safety Commission of Canada, the Digital Safety Office, and the role of Digital Safety Ombudsman, whose responsibilities are to create regulations to enforce the Act's provisions, and contribute to the development of standards for internet safety.^[8][9][1]

Social media services covered under the Act would face regulatory obligations enforced by the Digital Safety Commission. They would be required to display a duty of care in implementing "adequate" measures to reduce the risk of users being exposed to "harmful" content, and preventing content that sexually victimizes a child or revictimizes a survivor, or intimate content communicated without consent, from being accessible to Canadian users (when identified by the operator or reported by users). They would also be required to show a duty of care in protecting children, by implementing age-appropriate "design features" that would be determined by the Digital Safety Commission. Operators must maintain records that demonstrate compliance with the regulations enacted on the Act. ^[10][11]

The bill amends the Criminal Code to add a definition of "hatred" as "the emotion that involves detestation or vilification and that is stronger than disdain or dislike".^[1] Justice Minister Arif Virani stated that the definition was based on the standard of hate speech already accepted by courts, and would not cover "awful but lawful" content such as insults and political speech that do not exceed this standard.^[9]

Facebook whistleblower Frances Haugen expressed support for the bill stating that it was "one of the best bills that has been proposed today".^[12] Emily Laidlaw, a research chair in cybersecurity at the University of Calgary writing for The Globe and Mail, opined that the bill successfully balances "between free expression and protection from harm".^[13]

University of Ottawa law professor Michael Geist noted that Bill C-63 was "better than what the government had planned back in 2021" during the consulting period. However, he felt that it still contained several "red flags", including definitions that could be interpreted in an overly broad manner, the "remarkable" powers that would be held by the proposed Digital Safety Commission, and that "the provisions involving the Criminal Code and Canadian Human Rights Act require careful study as they feature penalties that go as high as life in prison and open the door to a tidal wave of hate speech related complaint".^[14] In particular, he expressed concern that the phrase "is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination" in the bill opens the door to weaponizing complaints.^[15] Geist noted that the bill "feels like the first Internet regulation bill from this government that is driven primarily by policy rather than implementing the demands of lobby groups or seeking to settle scores with big tech."^[14]

Marcus Gee writing for The Globe and Mail, opined that discourse surrounding Israel and Palestine in light of the Israel–Hamas war, such as chants including "From the river to the sea", could be subject to the bill's life imprisonment penalty for advocating genocide.^[16] The Canadian Civil Liberties Association was critical of the bill, including the part pertaining to children. The CCLA expressed concern with the bill censoring "healthy conversations among youth under 18 about their own sexuality and relationships".^[17] Award-winning Canadian author Margaret Atwood said she believed the bill would result in thoughtcrime and called it "Orwellian".^[18]