Impending Online Hate Speech Legislation Worries Free Speech Advocates

Minister of Canadian Heritage Steven Guilbeault speaks with the media in the Foyer of the House of Commons in Ottawa on February 3, 2020.Adrian Wyld/The Canadian press

A federal bill to combat harmful content and hate speech online is expected to be tabled soon, but free speech advocates are concerned that it may be too restrictive. Critics are also sounding the alarm on amendments to the existing Bill C-10 that seeks to regulate video content on platforms such as YouTube and Facebook.

The hate speech bill soon to be tabled will create a new regulator with the power to levy fines and require transparency from social media outlets, including about their algorithms. The legislation will also set out a legal framework for prohibiting hate speech, terrorist content, content that incites violence, non-consensual sharing of intimate content, and child sexual exploitative content.

“With the legislation we will be tabling, it won’t matter whether or not the company is Canadian,” Heritage Minister Steven Guilbeault recently said, according to Blacklock’s Reporter. “It won’t matter where the company is registered or where their servers are located. Once a publication is flagged, it will have to be taken down within 24 hours.”

Conservative MP Brad Vis told The Epoch Times that the premise reminds him of George Orwell.

“I haven’t read it since high school, but it seems a lot like ‘1984,’” Vis said of the dystopian novel published by the English author in 1949.

“All I know is that as a new MP, I saw that and I’m like, ‘Of all the things going on in the country, the government of Canada wants to make a new administrative body to monitor what people are saying online? Whatever happened to the Criminal Code? Whatever happened to our judicial system?’”

‘Thought Police’

Vis said he is concerned that the proposal will reinforce political correctness instead of dealing with real hate speech. He recalled the Liberal government’s requirement in 2018 that applicants to the Canada Summer Jobs program attest their approval of abortion rights.

Conservative MP Brad Vis speaks in the House of Commons on March 9, 2021 in Ottawa. The Canadian Press/Adrian Wyld

“This government has a history of trying to get people to think a certain way in order to receive government resources. I do not believe that is appropriate,” Vis said.

“I’m leery. I’m apprehensive because of that. ... We have the Criminal Code for a reason. Let’s use it. I don’t believe an administrative body in Ottawa, putting large fines on people for what they’re saying on the internet, is the right way to approach things.”

Democracy Watch co-founder Duff Conacher expressed similar sentiments, noting that a civil remedy has a lower standard of proof compared to the rigorous criminal justice system already in place to address hate crime.

“Having some other commission or board making decisions about civil penalties for hate crime is going to increase the likelihood of someone being held accountable for hate speech, because you don’t have to prove beyond a reasonable doubt when you’re talking about a civil fine as opposed to a criminal conviction,” Conacher said in an interview.

He also expressed concern about political influence over the proposed new regulatory body.

“You don’t want anyone from any party being able to have the power to decide what is misinformation, or to choose the people who would decide what is misinformation,” he said.

Guilbeault’s announcement prompted Vis to tweet: “I never thought I would have to be concerned about a Canadian ’thought police' in my lifetime. Even the idea of this Bill makes me worried.”

A spokesperson with the Department of Canadian Heritage told The Epoch Times that the government’s proposed legislation is needed to ensure social media platforms remove “illegal content, namely child sexual exploitative content, terrorist and violent extremist content, hate speech and non-consensually shared intimate images.”

“The goal is to foster a safer and more inclusive online environment so all Canadians can exercise their expressive rights online, without being subject to hateful or threatening attacks,” Daniel Savoie said in an email.

“Government regulations are required to ensure that platforms are more transparent in their conduct and accountable to their users.”

 ‘The Great Firewall of China’

Bill C-10, Guilbeault’s previous bill, had already proposed to put some internet content providers under Canadian Radio-television and Telecommunications (CRTC) regulation. Introduced in November 2020, it was the first legislation that has sought to amend Canada’s Broadcasting Act since 1991.

A CRTC logo is shown in Montreal in a file photo. The Canadian Press/Graham Hughes

“When YouTube or Facebook act as a broadcaster, then the legislation would apply to them and the CRTC would define how that would happen,” Guilbeault told the House of Commons Standing Committee on Canadian Heritage on March 8.

On April 26, the committee, which is dominated by Liberal MPs, gave the greenlight to amend Bill C-10 to update the Broadcasting Act to regulate video content on internet platforms, similar to how national broadcasters are regulated.

The Conservatives criticized the move, saying it gives CRTC too much power to regulate the internet. In a statement, Conservative MP Alain Rayes, his party’s shadow minister for Canadian heritage, said Tory members of the committee sought to insert an amendment so that social media users with less than $50 million revenue would be exempt from the new regulations, but their request was rejected.

“There could be no clearer proof that the Liberals are not just going after large foreign streaming services, they are also targeting ordinary Canadians,” Rayes said. “While we support creating a level playing field between large foreign streaming services and Canadian broadcasters, C-10 is a bad piece of legislation giving too much power to the CRTC to regulate the internet and provides no clear guidelines for how that power will be used.”

Guilbeault said on Twitter that he is very “disappointed to see Alain Rayes and the CPC being so disconnected.”

“Yet again, they let down the cultural sector and refuse to stand up to web giants,” he said.

Ryan Alford, associate professor of law at Lakehead University, said in an interview that the legislation’s supplementary documents give a fuller picture of the implications of Bill C-10.

“It is the details in that draft order-in-council that provide for this massive extension of the power of the CRTC,” Alford said.

“You see things like the possibility that the massive fines might be levied, the idea that internet service providers are going to be required to shut down Canadians’ access to individual websites that the CRTC, in its regulatory opinion, [says] are hurtful or harmful,” he noted. “We’re talking about something potentially that looks like the Great Firewall of China.”

Guilbeault had told the Commons committee earlier this year that he wanted to protect Canada’s “world-renowned public service” from online criticism. He has also said that the new regulatory agency could block postings that might “undermine Canada’s social cohesion,” Toronto Sun reported.

Alford said that Guilbeault’s past comments on the issue speaks volumes.

“It appears that he doesn’t understand the purpose of free speech. He doesn’t understand what it’s for. He doesn’t have any sense of its value. And eventually he turns it on its head because he sees the government as people who should be protected from hurt and harm from the public,” Alford said. “It’s hard to imagine something more Orwellian than that.”

Reasonable Limits vs Rising Censorship

Alford said Supreme Court rulings have clarified how free speech might reasonably be curtailed and other ways in which it would be unconstitutional to do so.

“What’s not a reasonable limitation is a restriction that targets and regulates speech that is merely offensive to people’s dignity. And that, of course, is the very rationale for this bill, as it’s being promoted by Minister Guilbeault,” said Alford. “So he’s operating against the backdrop of the highest court in the land, [which is] saying, ‘This is precisely what you can’t do.’ But he’s attempting to do it ... via the administrative apparatus of the CRTC.”

Alford said undue restrictions of speech made under the new laws will be tough to overturn through Charter challenges.

“The problem is that you would then need to seek judicial review in the federal court of that order of the CRTC. And the way that Canadian administrative law works, there’s a lot more deference to the administrative agencies. ... They somehow get this margin of error with respect to our Charter.”

Cara Zwibel, director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association, told The Epoch Times that the internet is a “nasty and dangerous place” for some people and groups, but added that she is “not sure that the kind of regulatory mechanisms that the government is looking at are the right ones to address it.”

Zwibel expressed concerned that it may lead to social media companies increasing censorship.

“The concern is that there’s going to be a whole bunch of other stuff that will get taken down because platforms are concerned about fines, and they’re going to err on the side of taking down more rather than less,” Zwibel said.