This article originally appeared in the Telegraph.
By David Collins, March 14, 2024
Canadian Prime Minister Justin Trudeau is threatening his most tyrannical attack on freedom yet through his government’s proposed Online Harms Act (currently Bill C-63). Brought to you by the same farcically-named “Liberal” party who froze the bank accounts of the truckers who protested vaccine-mandates, the OHA is the government’s overzealous attempt to promote online safety.
The proposed legislation supposedly achieves this by requiring operators of social media services to adequately mitigate the risk that their users will be exposed to harmful content through measures such as publishing standards of online conduct, providing blocking tools and ways to flag and label harmful content. The OHA would create a Digital Safety Commission to administer and enforce its rules along with a Digital Safety Office to support social media users and advocate for online safety. These agencies can investigate complaints, summon people to testify in hearings and to produce records. Costs of all this will be paid by unspecified charges on social media platforms, presumably contemplating Canada’s planned Digital Services Tax on big tech platforms.
Most controversially, the OHA’s provisions on posting hateful content would require amendments to Canada’s Criminal Code as well as its Human Rights Act. While the victims of online “hate” may be comforted by tough new penalties, the changes are radical, particularly a new hate crime offence which can lead to life imprisonment. Worryingly, the criminal provisions of the OHA would give judges the ability to put people under house arrest because they might commit a hate crime in the future. The potential criminal could also be made to wear an electronic tag if the Attorney General requests it.
Former Canadian Supreme Court Justice Beverly McLachlin has already suggested that many of the OHA’s criminal provisions will be challenged in court if they stay in their present form. Under the proposed act, online hate complaints can also be referred to the Canadian Human Rights Commission, notorious for its tough stance on politically incorrect speech.
In an era in which the expression of hatred has intensified in Canada and elsewhere, the OHA would appear to offer some comfort to internet users. But while there are unquestionably unpleasant people lurking online who exploit the anonymity and reach of the internet to say all sorts of nasty things, policing offence caused by online content in such a harsh way is a dangerous, totalitarian step. As Jordan Peterson rightly warned of the OHA in a recent op-ed drawing parallels to the overreach of Covid mitigations: we need to be careful that the cure is not worse than the disease. Online content moderation is a difficult exercise; one with which the various social media platforms are struggling to varying degrees of success, depending on who you are asking the nature of their opinions and biases.
In seeking to do this via wide ranging, vaguely-articulated duties and draconian enforcement provisions, the OHA is as good as an example of a supercharged nanny-statism which can be conceivably envisioned in a notionally free country. It is an idea pushed by the same power-drunk politicians who took over our lives during the pandemic. If enacted, the result would be an Orwellian nightmare of restrictions on making or consuming online content – stifling the culture of debate and discussion that is protected by Canada’s Charter of Rights and Freedoms, the now-hollow Article 2 on Freedom of Expression. That freedom is rightly subject to “reasonable limits,” but these have been pushed by OHA beyond their breaking point to the detriment of the society which they were constructed to serve.
Far from the “wild west” of a freewheeling world wide web where you could virtually see or do anything from the comfort of your home, for Canadians, Trudeau’s OHA will drive the internet to another extreme, a tightly-monitored police state more suited to North Korea than North America. It will harm more people than it protects.
David Collins is a professor of international economic law at City, University of London and a Senior Fellow at the Macdonald-Laurier Institute.
