Bill C-63 is less offensive than some earlier proposals, but only because it tries to do less
The Liberals tabled Bill C-63, their much-anticipated Online Harms Act, in the House of Commons on Monday. And it’s a peculiar thing. Certainly it is a far less ambitious thing, which is to say a less crazy thing, than free-speech enthusiasts had a right to fear. Some Liberal ministers honestly seemed to believe a country of 40-million people could fix the online world through sheer power of self-righteousness, and to view constitutional concerns around free speech as silly relics from a bygone offline era.
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The bill is probably best thought of as two separate things entirely.
Thing One targets child pornography, and intimate images published without their subjects’ consent. Both are already illegal, but the bill compels online platforms to be more proactive in reporting and getting rid of such content when they find it. Individual citizens can also complain about such content to the new Digital Safety Commission, which is charged with enforcing new requirements on social-media and live-streaming sites. Those sites would have to create and publish “digital safety plans,” make it easier for users to block other users and flag complaints, and enact various special protections for children.
Whether this would make a dent in the problem of online terribleness, or whether it in fact requires a whole new digital safety bureaucracy — the Digital Safety Commission, a Digital Safety Ombudsperson and a Digital Safety Office to oversee them both — I won’t stoop to predict. But I suspect this part of the bill will be almost entirely uncontroversial, if only because no politician wants to be asked why they support revenge porn and child pornography. (Chances we’ll get through this debate without hearing such slurs are slim to none.)
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Thing Two concerns itself with “online hate.” The ombudsperson can direct targets to the appropriate resources, but it’s not the commission that will provide those resources. Instead, targets of “online hate” will be encouraged to turn to the Canadian Human Rights Tribunal, which will be empowered to order content it deems hateful removed and award damages of up to $20,000.
In a way this revives Section 13 of the Human Rights Act, which the Canadian Human Rights Commission infamously used against Maclean’s magazine for publishing a Mark Steyn book excerpt and thereby destroyed its credibility forever. Parliament quite rightly scrapped Section 13 more than a decade ago.
But whereas Section 13 hewed to a lower standard of hate speech than the one in the Criminal Code, the Online Harms Act officially enforces only one standard for “hate speech” across the board. In a briefing with journalists on Monday afternoon, a Ministry of Justice official speaking on a not-for-attribution basis confirmed that the “hate speech” standard throughout Bill C-63 is the one stipulated in the Criminal Code, as interpreted by the courts over the years.
That’s a very high bar to clear. Prosecutions are few. “(The term) hatred connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation,” the Supreme Court ruled in its landmark 1994 Keegstra decision. It “implies that those (targeted) are to be despised, scorned, denied respect and made subject to ill‑treatment on the basis of group affiliation.” That last part is key: A hate-speech conviction basically requires proof of incitement to violence.
So why delegate prosecutions to the Human Rights Tribunal? Why not hear them out in a proper courtroom? The not-for-attribution official suggested the tribunal had been given new powers to dismiss frivolous or vexatious cases, which wasn’t really an answer. In any event, it always had the power to dismiss stupid cases. The problem was its addlepated interpretations of terms like “frivolous,” “vexatious” and “stupid,” and some less polite ones like “banana-republic garbage.”
Bill C-63 goes out of its way to drive home what it does not intend to outlaw: “For greater certainty … communication does not express detestation or vilification … solely because it expresses disdain or dislike or it discredits, humiliates, hurts or offends.” But that punt to the Human Rights Tribunal is one of the biggest red flags the legislation. Another big red flag is the stated 24-hour goal for online platforms to remove certain kinds of flagged content — an engraved invitation to those platforms to crack down harder than necessary in order to keep the digital-safety apparatus off their back.
The law also doesn’t cover private communications, obviously. Hate speech is a crime you have to commit in public.
But I very much suspect this new digital safety bureaucracy, if and when created, is going to be absolutely inundated with complaints that it will have to decline to investigate— if the law is to operate as written, that is. No, sorry, “from the river to the sea” doesn’t qualify as criminal hate speech. No, sorry, that vile tweet directed at you is a matter for the police, just as it always was — and, sorry again, they’re probably not going to take it very seriously, just as it always was.
And I suspect that’s going to disappoint pretty much all of the people who nodded along eagerly as the Liberals vowed, against all odds, logic and reason, to civilize the online world. The lesson, maybe, is not to promise what you cannot possibly deliver.
National Post
cselley@postmedia.com
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