The Canadian Government has announced it will divide the controversial Online Harms Bill C-63 into two separate pieces of legislation. This will remove - but not eliminate - some of the more problematic aspects of the bill.
Originally introduced to regulate and suppress "harmful speech," the bill imposes significant obligations on social media companies to remove certain types of content or face steep fines. It also reintroduces section 13 of the Canadian Human Rights Act, empowering government officials to investigate and prosecute online speech. Further, it incentivizes the public to anonymously report other citizens for alleged "hate speech”. It introduces amendments to the Criminal Code, criminalizing conduct already covered by existing laws, but with disproportionately harsh penalties for speech-related offences.
The Division of the Bill
The decision to split Bill C-63 will fast-track provisions focused on child protection, combating online child predators, and policing the non-consensual disclosure of intimate images (revenge porn), dealt with in Part 1 of Bill C-63. These provisions are reasonable and, where current laws fall short, necessary updates to the Criminal Code.
The second bill (dealt with in Part 2 and 3 of Bill C-63) deals with amendments to the Canadian Human Rights Act and Criminal Code. Provisions in that part of the Bill allow for criminal punishments up to life in prison for online speech. It re-introduces s.13 to the Canadian Human Rights Act without accounting for the problems encountered in its previous version. This would re-establish a sweeping bureaucracy to censor public online speech through the criminal law and the Canadian Human Rights Commission. Its vague and ambiguous language creates broad powers that will be used to criminally and civilly sanction Canadians for controversial opinions.
However, in splitting the bill, it is not clear whether the Government intends to maintain the categories of "harmful content" that include fomenting hatred, incitement to violence, incitement to terrorism, and violent extremism in the newly severed part 1.
Canadians will find their free speech rights severely restricted if the Bill includes these overly broad and ill-defined categories of harmful content. Part 1 of the Bill requires social media services to establish a "notice and takedown" regime for this category, effectively inviting a digital army of bureaucrats and citizen-enforcers to flag and seek the removal of anything deemed "harmful." Accordingly, TDF proposes that the Government remove these definitions from the newly divided Bill.
A Call for Balance
While protecting children and combating serious online harms are crucial objectives, these measures should be distinct from legislation that threatens freedom of expression. Separating child protection provisions from the broader censorship framework is necessary. Canadians must remain vigilant to ensure that new laws do not erode constitutional rights under the guise of combating ill-defined "harmful content."
Click here to read our full analysis of Bill C-63, including its implications for free speech.
About The Democracy Fund:
Founded in 2021, The Democracy Fund (TDF) is a Canadian charity dedicated to constitutional rights, advancing education, and relieving poverty. TDF promotes constitutional rights through litigation and public education and supports an access to justice initiative for Canadians whose civil liberties have been infringed by government lockdowns and other public policy responses to the pandemic.