This article originally appeared in the Hub.
By Peter Menzies, September 26, 2024
An old friend recently told me that his children’s biggest worry comes down to how they will raise their own children in a digital world dominated by social media.
The good news for that family and millions like them is that Ottawa is here to help. OK, maybe that’s not a phrase that inspires confidence, at least not while the deeply flawed Bill C-63, aka the Online Harms Act, continues its journey through Parliament. Second Reading resumed Monday. From there, the bill will go to committee, where amendments will be proposed and, if the government’s record on these matters is anything to go by, rejected. Following a similarly theatrical process in the Senate, the bill will become law, likely at some point in the winter.
The act is designed to appeal to those concerned for their children’s safety online, imposing a duty of care on platforms such as Facebook, YouTube, and TikTok. In order to do that, it will create a new bureaucratic overlord, the Digital Safety Commission. The details of that body will apparently be developed exclusively by staff at Heritage Canada who, if their work on the Online Streaming Act and Online News Act is anything to go by, have an inadequate understanding of the internet and its intricacies.
Nevertheless, the protection of children from online harm is a noble pursuit and is being taken up by governments around the world. After years of avoiding the obvious, even school boards are catching up by banning the use of mobile devices in classrooms.
But the Online Harms Act is a totalitarian, freedom of expression-suppressing wolf in sheep’s clothing. The good parts about protecting children disguise its deeply troubling moves to expand the powers of the Human Rights Commission, chilling speech with the threat of $20,000 fines while enhancing Criminal Code hate speech laws by imposing life sentences and ordering house arrest in anticipation of what might be said.
There were also fears that the man responsible for the bill, Justice Minister Arif Virani, would try to impose time allocation to speed up passage of the bill but, so far, the troubling spectre of limiting debate on a bill with severe implications for freedom of speech has not materialized. Yet.
Nevertheless, Bill C-63 is problematic for opposition parties. How, after all, can they oppose the Online Harms Act and not be accused of therefore wishing to leave the nation’s children at the mercy of online predation?
Calgary MP and one-time Heritage critic Michelle Rempel Garner may have solved that problem, at least for the Conservatives. No sooner had Parliament resumed than she tabled a Private Members bill, Bill C-412, an Act to enact the Protection of Minors in the Digital Age Act and to amend the Criminal Code.
Its stated purpose:
to provide for a safe online environment for minors by requiring operators to take meaningful steps to protect them and address online risks to their health and well-being, including by putting their interests first and by ensuring that their personal data is not used in a manner that could compromise their privacy, health or well-being, such as by leading to the development of a negative self-image, loneliness or the inability to maintain relationships.
It, too, imposes a duty of care on the platforms, with fines of $25 million possible should they fail.
And, as Rempel Garner states in her Substack on the matter, it avoids the “Liberal’s dogmatic attachment to including a reinstatement of the highly controversial Section 13 of the Canadian Human Rights Act.”
And: “rather than set up a costly $200M new bureaucracy that would move the conversation about online protections for children far into the future, and behind closed doors where tech lobbyists could manipulate the process, Bill C-412 proposes a clear, immediate legislated duty of care for online operators to keep kids safe.”
There have been some critical reviews of the bill, most of them centred around how platforms would be able to comply with a requirement that they must identify users “whom it knows or should reasonably know is a child”—something that raises the problematic spectre of digital IDs for the purpose of age verification. That, in Canada, is further complicated by the reality that not all provinces share the same age of majority.
It is significant, however, that Rempel Garner’s bill doesn’t impose a solution on this, leaving it up to the platforms to determine how they would manage this obligation. Given the public’s hostility to the concept of having to flash their driver’s license or other ID in order to watch an online movie, all indications are that the platforms will accept self-identification for age verification, supported by something called “age inference” derived from online behaviour.
YouTube, for instance, already requires users to be at least 13 years of age to sign up, allows for parental supervision of use from ages 13-17, and, if a user’s age is unknown, makes a default assumption that they are under 18.
There are always many devils in the details of legislation and there are legal minds likely to catch snags in Rempel Garner’s approach. How a new government would give the Canadian Radio-television and Telecommunications Commission (CRTC) authority over the platforms if it also intends to repeal the Online Streaming Act is certainly one confusing factor. But, so far, even critics appear to acknowledge that whatever its shortcomings, Bill C-412 sure beats the alternative currently being debated in the House of Commons.
The Calgary Nose Hill MP has avoided the creation of a massive new bureaucracy, refused to expand the Human Rights Commission’s authority, and limited her amendments to the Criminal Code to the inclusion of Deep Fakes in its section covering the sharing of intimate images (something the Liberals inexplicably overlooked). She appears to have placed an emphasis on empowering victims and parents while giving platforms (all of which differ) flexibility in how they achieve their obligations.
As one source told me, her bill “demonstrates that legislation is possible without being authoritarian.”
Imagine that.
