Civil Liberties Group Says Online Harms Bill Needs ‘Substantial’ Amendments Due to Free Speech, Privacy Concerns

Arif Virani, Minister of Justice, and Attorney General of Canada, holds a press conference regarding the new online harms bill on Parliament Hill in Ottawa on Feb. 26, 2024. THE CANADIAN PRESS/Sean Kilpatrick

The Canadian Civil Liberties Association (CCLA) says it has several free speech and privacy concerns with the recently-introduced Online Harms Act, and that it is urging “substantial” amendments.

“While the CCLA endorses the declared purposes of upholding public safety, protecting children, and supporting marginalized communities, our initial assessment reveals that the bill includes overbroad violations of expressive freedom, privacy, protest rights, and liberty,” CCLA Executive Director and General Counsel Noa Mendelsohn Aviv said in a Feb. 28 release.

Bill C-63, introduced by the Liberal government on Feb. 26, seeks to reduce Canadians’ exposure to “harmful content,” establishing special protections for children, and making online services like social media companies “accountable for and transparent about how they are reducing exposure to harmful content.”

The bill would create a new Digital Safety Commission, which will enforce rules holding companies accountable for content posted on their websites and order the removal of content that sexually victimizes a child, revictimizes a survivor, or shows intimate content without consent.

The legislation also seeks to add a definition of “hatred” to section 319 of the Criminal Code, which refers to the public incitement of hatred and the wilful promotion of hatred and anti-Semitism. Bill C-63 also aims to add a new standalone hate crime offence to the Criminal Code, which would apply to existing offences. Penalties sought for this new crime would be up to life imprisonment to “deter this hateful conduct as a crime in itself, rather than as an aggravating factor” to be considered during sentencing.

The legislation will apply to three categories of online content: social media services, live-streaming websites, and user-generated adult content services. Private communications like email and direct messaging would be excluded from the legislation, but public groups where an “unlimited number of people” can join would be included.

Justice Minister Arif Virani said during a press conference on Feb. 26 that the legislation “targets the worst” of what Canadians see online, and argued the bill would enhance free expression by “empowering all people to safely participate in online debate.”

Sweeping New Powers

Mr. Mendelsohn Aviv said the CCLA believes Bill C-63 needs to be examined in “greater detail,” as the organization’s preliminary reading of it raised several concerns. He said the Digital Safety Commission, which would be made up of government appointees, would be given the authority to “interpret the law, make up new rules, enforce them, and then serve as judge, jury, and executioner.”

Mr. Mendelsohn Aviv also pointed out that the legislation included “sweeping” new search powers of electronic data without a requirement for a warrant. He said this poses a threat to privacy rights and could result in “unacceptable intrusions” into Canadians’ digital lives.

Mr. Mendelsohn Aviv also cited free speech concerns with Bill C-63’s “draconian” penalties for broad and unclearly defined offences like “incitement to genocide” and “offence motivated by hatred.” He said these offences could chill free speech and undermine the principles of proportionality and fairness in Canada’s justice system.

Bill C-63 also re-introduces a speech restriction within the Canadian Human Rights Act specifying that posting “hate speech” online is discrimination, which CCLA has previously opposed. That provision, which was criticized by free-speech advocates for being overly restrictive, was previously removed from the Canadian Human Rights Act in 2013

Mr. Mendelsohn Aviv said the reintroduction of that provision has the potential to censor strong opposition to political authorities and limit debate on controversial issues. He added that the provision would likely result in numerous complaints to the Canadian Human Rights Commission, which would put pressure on the already resource-strapped organization and “limit access to justice for those facing discrimination in employment, services, and other contexts.”

“We urge Parliament to amend Bill C-63 to ensure that any legislation aimed at curbing online harms upholds the fundamental principles guaranteed by our Charter of Rights and Freedoms,” Mr. Mendelsohn Aviv said.