On March 31, Heritage Minister Steven Guilbeault announced the anticipated new measures to address so-called “online harms”, the second prong of the Federal Government’s tripartite response to issues presented by social media and other online platforms. This follows the first prong, which included Bill C-10, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts, which was introduced in November 2020.
In an interview with Canada2020, Minister Guilbeault explained that the proposed online harms legislation will include the creation of a new regulatory body which will implement new rules for online speech and will assess and enforce compliance with the new regulations. In particular, Minister Guilbeault set out five types of content which the new regulations will address: child sexual exploitation, terrorism, inciting violence, hate speech, and non-consensual sharing of intimate images online.
The new legislation is not set to expand on what is illegal, but is designed to address what is already illegal, though the Minister did say to expect a new definition of hate speech based on existing jurisprudence. He was optimistic that the new legislation will be adopted, but cautioned that the implementation of the new regulator may take time. However, he stated that this is a necessary step, as no current body has the expertise required for such a task. He also noted the success of similar bodies, such as Australia’s eSafety Commissioner.
The regulator is to be given what sounds to be a strong mandate to regulate online speech. For one, the regulator will have audit powers over platforms’ content moderation, and will be able to impose stiff monetary penalties for non-compliance. Minister Guilbeault hopes to dramatically increase the transparency of online platforms, which is essentially non-existent currently. The government also hopes to implement a “24-hour takedown” regime in Canada to address the longevity and potential spread of an online post when compared to the physical world. This is designed to shift the burden to the platforms since individuals have so little control over such content. This approach also contemplates an appeal mechanism to address content which is unfairly taken down (for example, the Minister highlighted issues of algorithms unfairly targeting speech by groups fighting against racism that may contain the same terms as used by white supremacists).
In response to questions about the feasibility of the takedown regime, the Minister noted that the “how” will have to be developed by the regulator. In theory, the regulator is the next step where a platform does not take down the impugned content. The regulator will provide moderation guidelines, and the Minister noted that there are considerations of mechanisms such as an “e-tribunal” to deal with disputes, especially given concerns as to the potential overbreadth of a take-down regime.
While the government did not include a public consultation in the development of the upcoming legislation, Minister Guilbeault noted that there has been broad domestic and international consultation with over 100 groups, including other ministries, civil society organisations which deal with each of the “harms” addressed by the legislation, academics, civil liberties organisations, and other governments. While few governments have attempted such regulation so far, the Minister mentioned several lessons that can be learned from what has been done so far. In particular, he noted that an approach must be incremental as one bill cannot address every issue, the framework must be able to evolve with changing technology and social habits, the legal framework should be highly adaptable, and the new regulator must have specific expertise, especially in light of the relative lack of precedents.
The Minster explained that the provisions will aim to strike a fair balance between freedom of speech and safety for users online from abuse from bad actors. Noting that these “bad actors” are in the minority, Minister Guilbeault argued that regulation of online speech is necessary for a safer and more inclusive online community. In other words, in his view, in order for everyone to enjoy their right to freedom of expression, certain limitations must exist.
Safety, he said, is a core Canadian value along with freedom of expression. The government says that it is trying not to compromise one value to support the other. Minister Guilbeault argued that not acting would in fact be harmful to freedom of expression, as many Canadians do not feel that they can safely express themselves online when they are silenced by minority actors. These, he said, are not sustainable conditions for healthy public debate, especially when groups such as women and racialized persons are three to four times more likely to be the targets of online abuse. He also highlighted the need to guard against threats such as those seen on January 6, 2021 in Washington, DC, where online platforms aided in organizing and mobilising people in an attempt against a democratically elected government. As noted by the Minister, there are indeed limitations on freedom of expression in the physical world, which he wants to bring to the digital one.
Notably, the new bill is not set to address the growing threat of “fake news” and disinformation, as Minister Guilbeault argued that this is an issue that is too complex and too risky for government regulation, noting that the government cannot be the arbiter of what is “good” and what is “bad” information. Instead, the Minister highlighted the government’s approach to educating a new generation of more critical thinking and online-savvy citizens, the Digital Citizen Initiative. He also noted the need for a healthy Canadian media sector and to have fair remuneration for the media by tech giants like Google and Facebook.
The Minster stated that the upcoming legislation is in the final stages of development and is set to be tabled in the coming weeks. He therefore noted the caveat that everything stated so far remains conditional. Stay tuned for further updates about the expected legislation.
