The new bill prioritises some of the most egregious forms of harmful content online, while taking a more targeted approach to moderation than global counterparts
Canadian Government introduces a targeted approach to online safety
On 26 February 2024, the Canadian Government introduced in parliament the Online Harms Bill (Bill C-63), the latest in a global series of laws aimed at protecting consumers online. The introduction of the bill follows an initial consultation on mitigating harmful content online launched in July 2021 and the formation of an expert group on online safety in March 2022. The bill would impose three obligations on social media, live streaming and adult content services:
A duty to act responsibly through risk assessment, automatic flagging of harmful content and the creation of a digital safety plan;
A duty to protect children through age appropriate design features; and
A duty to make child sexual abuse material (CSAM) and non-consensual intimate images inaccessible within 24 hours of identification.
In developing the scope of the duty to act responsibly, the Government narrowly defines seven types of harmful content, including terroristic content, incitements to violence, bullying and encouragements of self harm. Platforms could be fined up to 6% of their gross global revenue or C$10m (£5.8m) for violating the provisions of the bill. The Government would also establish a new Digital Safety Commission and Digital Safety Office to enforce the regime and field complaints from users.
The bill’s expansive hate speech measures have already faced criticism
As part of its definition of harmful content, the Government is also proposing amendments to the definition and treatment of hate crimes under the Canadian Criminal Code and the Canadian Human Rights Act. In addition to the creation of a new definition of “hatred” informed by rulings from the Supreme Court, the bill would lengthen the maximum sentences for hate propaganda offences, including by introducing a life sentence for those convicted of advocating genocide. The Government has also drafted a new definition of “hate speech” in a move that would empower individuals or communities to file complaints with the Canadian Human Rights Commission against users who post hate speech online. While hate content is included in the broader duty for platforms to act responsibly, these more targeted measures and their related penalties under human rights and criminal law would only apply to individual users. The bill has already received criticism for its proposals on expanded enforcement on hate speech, with opponents voicing concerns that the proposed criminal penalties would be disproportionate given the subjectivity involved in distinguishing hate content from acceptable political content.
Canada’s approach to regulating the online world stands apart globally
Unlike many of its global counterparts, the Canadian Government has taken a more active approach to regulating competition in digital markets before it introduced ex-ante regulation for online safety. In addition to a series of market power and antitrust investigations into big tech platforms conducted by the Competition Bureau Canada, the Government has already passed laws regulating competition among digital news distributors and streaming platforms. In the context of global online safety, while some features of the Online Harms bill do follow the examples set by counterparts, the Government has distinguished its approach with a more narrow focus on fewer targeted types of harmful content. The Online Harms Act does not reference illegal content, which is common among many other global laws, or consider commercial content like the EU’s Digital Services Act. Through this, the bill’s framework still appears to most closely resemble Australia’s Enhancing Online Safety Act (2015) in creating a new centralised regulator to handle discrete categories of content. As a number of other large markets, including the US and Brazil, are also still considering legislative frameworks on online safety, the success of the implementation of laws elsewhere may prove instructive in designing these new regimes.
