This article originally appeared in the Epoch Times.
By Peter Menzies, February 23, 2024
The federal government’s awkward and at times ham-fisted efforts to regulate how Canadian citizens communicate on the internet are poised to move to the next level with the unveiling of its long-promised Online Harms Act.
The House of Commons was notified Feb. 23 that the legislation—the early versions of which were likened to internet restrictions imposed by governments in Iran, China, and North Korea—will be tabled Feb. 26 when Parliament returns from its February break.
First promised in the 2019 election and then again guaranteed to be introduced within 100 days of the 2021 election, the Online Harms Act initially conceived by the Trudeau government called for the creation of an Online Safety Commissioner with extensive powers ranging from 24-hour takedown orders, $25 million fines, and even site-blocking orders.
Primary targets were five categories of content that are already illegal in the Criminal Code—incitement of violence, non-consensual sharing of intimate images, child porn, hate speech, and terrorist content, including recruitment.
But the initial drafts of the legislation also ventured into regulation of misinformation, disinformation, and other content deemed to be “lawful but awful” and likely to cause people offence or hurt feelings. It also called on social media companies to provide information to police or the Canadian Security Intelligence Service.
As the Canadian Civil Liberties Association (CCLA) put it, this involved “social media companies providing information about their users to law enforcement without the users knowledge or consent.”
These and other concerns prompted a letter from the CCLA and nine like-minded groups advising the architects of the bill—then under the authority of Pablo Rodriguez as heritage minister—to reconsider the authoritarian nature of the legislation as proposed.
“Illegal online content and legal but harmful online content are both real issues, but any legislation that threatens the rights of all people in Canada to express themselves freely is amongst the most sensitive our government can propose,” the group’s joint letter stated. “Accordingly, the process of developing such legislation must be transparent, democratic, cautious, and publicly accountable throughout.”
While there was every indication as little as six months ago that the government was shrugging off that advice, there are now indications that Trudeau has less stomach for this fight. Much less. Nervousness around the impact of the Online Streaming Act (which could prompt companies like Netflix to no longer serve Canada) and the Online News Act (which cost the news industry hundreds of millions in lost revenue), have coincided with dismal public opinion polls and a broken relationship with Muslim groups that were big backers of cracking down online. As a result, Trudeau is signalling the bill will focus on the far more cuddly objective of protecting children.
Online Harms, according to the prime minister, will now be “very specifically focused on protecting kids and not on censoring the internet.”
Signs of retreat were also apparent in a letter sent by Public Safety Minister Dominic Leblanc to the Commons ethics committee. It had recommended that cabinet hold online platforms accountable for “publishing” false or misleading information.”
In response, Leblanc wrote: “The government heard from Canadians and stakeholders that while false and misleading information online can carry significant consequences, creating legislation and policies that restrict or otherwise limit speech based on the veracity of information would undermine freedom of expression to an unacceptable degree.”
He went on to say, according to Blacklock’s Reporter, that legislation “is not the only tool in the government’s toolbox to combat false or misleading information,” pointing to the effectiveness of internet literacy programs.
Further, the Canadian Press reported that its sources indicate the new, trimmed-down version of the legislation has narrowed the scope of its takedown order powers to images of child sexual abuse and the non-consensual sharing of images. Given that those are already covered in the Criminal Code and platforms have been deploying considerable resources (Meta has 60,000 employees guarding its gates) to block posts such as these for years, there’s every indication the role created by Trudeau’s final version of legislation could wind up being largely ceremonial.
Hopefully, what has evolved is the imposition of a duty of care on platforms as envisioned in the Social Media Responsibility Act proposed by myself and Konrad von Finckenstein in a Macdonald-Laurier Institute (MLI) paper two years ago.
As the MLI news release summarized at the time:
“The authors suggest that the previous Parliament’s ‘online harms’ proposal was far too heavy-handed, empowering unelected regulators to determine what kinds of speech online is acceptable. As they write, ’any efforts aimed at regulating the Internet should stay as far away as possible from attempting to manage what people have to say about the events of the day.’
“To do otherwise only leads, at best, to endless haggling within an unnecessary legal quagmire and, therefore, inefficiency. At worst, such efforts lead to government suppression of freedom.”
Our conclusion was that the only bodies with the ability and legitimacy to combat online harms are social media companies themselves, and that what is needed is legislation that establishes a regime of responsibility for social media companies which must develop and implement codes of conduct for their users. The government’s role would be to make sure they apply their rules in an objective fashion, preserving free speech rather than suppressing it.
I’d like to think that’s where Trudeau and company have finally landed. I’d like to think that sensible, mature thinking has carried the day.
But I’m not holding my breath. Not yet.
Peter Menzies is a senior fellow with the Macdonald-Laurier Institute, an award winning journalist, and former vice-chair of the CRTC.
