It’s incontrovertible that the internet with its unregulated nature has caused some terrible harm to some people through online bullying, proliferation of child pornography, hate incitement, and the spread of misinformation. But it’s debatable whether the government should try to intervene and regulate the internet. If it’s agreed the government should step in, the next debate is on how to do it and how far it will go. The balance between protecting vulnerable people on the internet and egregiously infringing on free speech and expression is a delicate one.
The full title of Bill C-63 is: “An Act to enact the Online Harms Act, to amend the Criminal Code, the Canadian Human Rights Act and An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service and to make consequential and related amendments to other Acts”
It’s quite a mouthful and it reflects a bill that’s trying to take on many issues at once. There is a lot to unpack in the bill and there are some good regulations within it. The risk now is that the government may be legislatively trying to bite off more than it can chew with such a big bill. If it becomes mired in excessive amendments, it could die on the order paper as the last incarnation did. If that happens, nothing will have been accomplished to protect children online.
Child pornography is a scourge that must be pursued and prosecuted with the utmost vigour. The internet has offered a platform that has allowed the production and distribution of child pornography to flourish. We need to give law enforcement, government agencies, and internet providers tools to try and protect children and hold those exploiting children to account.
Bill C-63 appears to be trying to put much of the onus upon internet service providers. This isn’t unreasonable. Would we tolerate it if a brick-and-mortar store kept magazines depicting child pornography on their shelves? Even though the store owner didn’t produce the content, there is some responsibility to be held for what was distributed. The same can be said for sites that host content from users.
That said, the world has changed. Nobody could reasonably sneak into stores and put inappropriate content on shelves without being noticed. On websites that have hundreds of thousands if not millions of interactions per day, it can be tough to keep up with what’s being posted. The legislation must give providers reasonable timelines and means to keep inappropriate content under control. Part of what held up the last bill was that it contained an unreasonable time frame for reporting or acting.
The bill proposes legislating that sites provide the means for users to flag harmful content so it can be quickly removed. Most sites already have something of the sort in their platform, but C-63 would mandate it.
As always, the devil will be in the details. The bill calls for the establishment of a “Digital Safety Office of Canada” to administer the whole thing. Forming a new bureaucracy rarely leads to a more efficient administration of laws or regulations no matter how well-intentioned the action was. It also raises the scary prospect that a few bureaucrats can decide what content is harmful.
The bill also calls for revisions to the Criminal Code to increase the maximum sentences for hate propaganda. It specifies increasing the sentence for promoting genocide from a maximum of five years to a life sentence.
This is where this bill is going to get into trouble.
For one, the nation can’t even settle on what the definition of genocide is anymore. It can range from calling for the extermination of a race to opposing the changing of gender pronouns in schools. Secondly, while the promotion of real genocide is odious and could indeed earn criminal sanction, offering a penalty of a life sentence is beyond reasonable. Even murderers in Canada often don’t get life sentences. This is just inviting legal challenges.
The bill delves into hate speech and further empowerment of the Human Rights Commission. It is returning restrictions on expression and speech that went too far in the past which is why the Harper government rescinded Section 13 of the Human Rights Act. Speech was being unduly infringed upon and the commission was overstepping its bounds. The new definitions of criminal hate speech will surely land in our courts, too.
Bill C-63 has some merit but the bill may be lost due to the government’s zeal in trying to pack hate speech provisions into it. If the child protection section could be broken free into a bill of its own, it could be a fine piece of legislation. As C-63 sits right now though, it may die on the order paper due to its excessive ambition, and that’s a shame.
