New hate bill allows secret hearings
Critics raise Charter concerns
The Liberal government's online harms bill would create a new regulator for illegal content with sweeping powers that critics say raise concerns about secret proceedings and Canadians' charter rights.
The digital safety commissioner of Canada would be in charge of enforcing rules requiring online platforms to remove illegal content. Its authority would include the ability to send inspectors into workplaces and homes in search for documents, software and information such as computer algorithms. Inspectors would need a warrant or consent to go into homes.
“This looks like a possible Section 8, right against unreasonable search and seizure violation,” said Joanna Baron, executive director of the Canadian Constitution Foundation.
“Leaving aside questions of constitutionality, I'm not sure if raids on Facebook offices are going to yield the desired result,” said University of Ottawa law professor Vivek Krishnamurthy.
The commissioner, along with an appeals tribunal called the Digital Recourse Council of Canada, would be able to conduct in-camera, non-public hearings in cases where “a public hearing would not be in the public interest,” such as those involving privacy, national security, international relations, national defence or confidential commercial interests.
“It's hard to think of a case that you couldn't make the claim would be covered by those interests, and so this is giving very broad latitude to order in-camera hearings, which normally should be exceptional, should be like state secrets,” Baron said.
Krishnamurthy said “the open court principle is a very important principle in our laws. The Supreme Court has said that repeatedly.”
Krishnamurthy said the government's proposal also specifies the regulator wouldn't publish the names of those who made the online posts or those who flagged them, and both provisions are “at least potentially problematic.”
He said there are cases where it's appropriate to withhold names, such as those involving sharing of intimate content.
But the presumption overall should be that the decisions are public, Krishnamurthy said.
“This is a body that's going to be passing judgment on, essentially, the legality of content,” he said.
The details of the bill, which the government said would be introduced in the fall of 2021, were outlined in discussion and technical papers released Thursday. The government will consult on its proposed approach over the next eight weeks, before the bill is finalized.
University of Ottawa law Prof. Michael Geist said the proposals “pick up where Bill C-10 left off, treating freedom of expression as a danger to be constrained through regulations and the creation of a bureaucratic superstructure.”
The digital safety commissioner of Canada would be charged with overseeing, administering and enforcing the new bill. Individuals looking to appeal decisions made by digital platforms would go to the Digital Recourse Council of Canada, which would “provide independent and binding decisions.”
Heritage Minister Steven Guilbeault said in an interview that if there is worry about specific aspects of the bill, the government would be willing to reconsider.
“Of course we're open to comments,” he said.
But critics said they were concerned that the government was consulting on what looked like a fully formed bill. Guilbeault had initially promised to table the legislation in the spring.
“I'm glad that the government is engaging in a consultation about this but it sort of seems like they've largely already drafted the legislation and now they're consulting about it,” said Cara Zwibel, the director of the fundamental freedoms program at the Canadian Civil Liberties Association.
The bill would apply to “online communication service providers” — a new category to be defined in the legislation that the government said would target major platforms like Facebook, Twitter, TikTok and Pornhub.
It would apply to services whose primary purpose “is to enable users of the service to communicate with other users of the service, over the internet.” Services like fitness apps or travel review sites wouldn't be included, and the legislation wouldn't apply to telecom service providers or private communications, the documents said.
The new bill would target online posts in five categories — terrorist content, content that incites violence, hate speech, intimate images shared non-consensually, and child sexual-exploitation content. Platforms would have to remove illegal content within 24 hours of it being flagged.
“While all of the definitions would draw upon existing law, including current offences and definitions in the Criminal Code, they would be modified in order to tailor them to a regulatory — as opposed to criminal — context,” the discussion paper says.
The Liberals have proposed a new definition of hate speech based on Supreme Court decisions in Bill C-36, introduced in the House of Commons just as the parliamentary session ended in June.
Zwibel questioned whether the government's approach would be effective, given that the legal definition of what qualifies as hate speech is much more narrow than what most people would consider hateful.
“There may be a mismatch in terms of the nature of the problem and this particular solution, because I think that a lot of people who feel there's a lot of hateful content online ... it's content that they may experience as hateful but most of it is probably not illegal,” she said.
The new regulator would have the power to recommend administrative penalties for non-compliance of up to $10 million or three per cent of global revenues, whichever is higher, and in some cases — such as where platforms ignore orders or resist or obstruct the commission — refer cases to prosecutors, with fines of up to $25 million or five per cent of global revenues.
The Digital Safety Commission would also be able in “exceptional” cases to apply for a Federal Court order to force telecom service providers to block or filter content.
Those cases would involve services in Canada that have “repeatedly refused to remove child sexual exploitation and/or terrorist content,” the discussion paper said.
Geist said the implications of that provision are “enormous, raising the likelihood of creating a countrywide blocking infrastructure within all ISPs with the costs passed on to consumers.”