The Federal Government recently introduced the Online Harms Act in the House of Commons. The bill underwent its first reading last month. According to the government the act would specifically target seven types of harmful content:

·       Content that sexually victimizes a child or revictimizes a survivor.

·       Intimate content communicated without consent.

·       Content used to bully a child.

·       Content that induces a child to harm themselves.

·       Content that foments hatred.

·       Content that incites violence; and

·       Content that incites violent extremism or terrorism.

Under the Act, social media services would be subject to three duties:

·       A duty to act responsibly.

·       A duty to protect children; and

·       A duty to make certain content inaccessible, specifically (1) content that sexually victimizes a child or revictimizes a survivor and (2) intimate images posted without consent.

The act also proposes the creation of the Digital Safeties Commission to oversee the implementation of this act.

We don’t think many citizens would argue with the above listed intentions of the act. Of course, our institutions have a duty to protect children, the victims of crimes, victims of hate speech, or content that incites violence any other type of offence.

Critiques and concerns regarding the proposed bill revolve around limiting free speech, the constitutionality of certain sections, changes to punishments upon conviction, and retroactive punishments. What’s important to remember is that this bill has only just passed the first reading. Consideration should be given to all these concerns and revisions will undoubtedly be made.

First let’s address the free speech/hate speech aspect. The bill clearly states:

Clarification
(8) For greater certainty, the communication of a statement does not incite or promote hatred, for the purposes of this section, solely because it discredits, humiliates, hurts, or offends.

Is this a subjective definition? Perhaps. Each application of this proposed bill, if passed, will be a case-by-case basis. That establishes case law, hopefully in accordance with Charter rights. In recent months we have seen multiple assurances that the courts are upholding the Constitution.

Another example. Concerns have been raised that people can be subject to life in prison for something that has been posted online previously. So essentially a retroactive offence under the new legislation. What’s important to know here is that a person cannot be convicted of an offence without proof that they both committed the act, and knowingly committed the act. The bill actually touches on this to an extent and defines this as something that cannot be removed from online. In theory if something qualifies as an offence retroactively there is a remedy to have that content removed, and thus nullifies any offense. An issue that we personally see here is the federal governments unsuccessful attempts to regulate large social media companies under Bill C11.

Life imprisonment as an offence has also been raised as a concern from some opponents. If we examine one example from the proposed bill where life imprisonment may apply. Advocating genocide can carry a term of life in prison. Simple solution don’t advocate genocide. There are so many nuances in this law that it would be impossible to touch on them all in one post. For example, if someone advocating for genocide has power, control, influence, over an offender who committed a heinous crime they too would be liable to the maximum term prescribed by law.

There has been some controversy regarding this bill. Let’s re-evaluate after the second reading and see what amendments have been made after public and legal consultation. In our opinion there are some positive aspects and some aspects that may need amended to ensure our Charter rights are protected.