Balancing Free Speech and Online Safety in 2024 By: Nicholas Singlar

The freedom of speech breathes life into democratic societies.[1] Censorship of free speech can damage democratic societies by alienating the pubic, generating distrust, and sparking political instability.[2] Thus, this leads us to question why, in a seemingly stable and well-functioning democratic society like Canada, is free speech considered under attack?[3]

            Currently, a new bill titled the Online Harms Act is circulating through Canadian Parliament.[4] The Online Harms Act imposes one of the most rigid regulatory environments for social media companies.[5] Among other things, the Online Harms Act seeks to “reduce harms caused to person in Canada as a result of harmful content online and ensure that the operators of social media services in respect of which that Act applies are transparent and accountable with respect to their duties under that Act.”[6] To achieve this, Canadian parliament will create three new institutions, the Digital Safety Commission, the Digital Safety Ombudsperson, and the Digital Safety Office of Canada  each will seek to regulate various forms of online harm.[7] The Online Harms Act seeks to regulate several different forms of online harm.[8] First, it seeks to combat the creation and distribution of child and revenge pornography across the internet.[9] In addition, the act seeks to safeguard children’s physical and mental health by eliminating material that may encourage self-harm.[10] Lastly, it seeks to eliminate hatred, violence, and terrorism across the web.[11]

            The Online Harms Act will primarily rely on online platforms operating in Canada to proactively monitor and remove any content in violation of the Act.[12] First, online platforms will be required to submit a safety plan to the Digital Safety Commission.[13] Then, online platforms will be required to implement measures and guidelines to actively identify, process, and remove any harmful content.[14] The Digital Safety Commission will also be charged with the power to order the removal of content within 24 hours and to issue financial penalties, which could exceed 6% of global revenue or $10 million.[15] Despite the potential for issuance of monetary penalties for violations of the Online Harms Act, Meta has expressed support for the federal government’s goal of ensuring a safe and positive experience for young people using its platforms.[16]

Despite this Act addressing many problems internet users find problematic and receiving support from social media platforms, it raises the question of why exactly certain individuals could be against this act.[17] Along with the responsibilities imposed on social media platforms, the Criminal Code and the Canadian Human Rights Act will be amended to introduce stricter penalties on hate speech.[18] First, the Criminal Code proposes a new definition for “hatred” and a new hate crime offence, carrying a maximum punishment of imprisonment for life.[19] Many civil libertarians believe the criminal implications surrounding a violation have gone too far.[20] Section 318 (1) of the Online Harms Act is one example that is raising significant criticism.[21] In subsection 318 (1), “[e]very person who advocates or promotes genocide is guilty of an indictable offense and liable to imprisonment for life.”[22] While advocating genocide carries serious implications, critics of the Act question the draconian nature of punishing an individual before the commission of a crime.[23] Additionally, hate speech would also be covered under the peace bond authority, allowing for an individual to be placed under house arrest if there is a fear of the commission of a hate crime or a hate propaganda offense.[24]  

In addition, there are concerns that the Online Harms Act could lead to a tidal wave of hate speech claims through the possibility of filing a civil complaint.[25] Canadian’s will also be permitted to file individual hate speech complaints to Canadian Human Rights Commission, which may distribute remedies.[26] The primary remedy is stated to be an order to cease the communication of hate speech; however, the Bill may impose monetary damages, requiring compensation up to $20,000 to any victim harmed.[27]

Both the criminal and civil penalties are believed to risk having a chilling effect on free speech.[28] However, conservative party leader Pierre Poilievre is concerned that Canada’s Prime Minister, Justin Trudeau, and his government will begin weaponizing the bill to regulate speech that they find to be find unaligned with their viewpoints.[29] For example, Poilievre claims “Justin Trudeau said anyone who criticized him during the pandemic was engaging in hate speech,” raising concerns that this bill will provide the government more liberty in censoring speech.[30] In response to concerns with the proposed bill,  Conservatives plan on introducing a bill in the House of Commons next week. This legislation is still focused on establishing new requirements for social media platforms in protecting users from sexual victimization, hatred, and bullying.[31] However, the Conservatives insist their bill will not restrict freedom of speech to the extent on the Online Harms Act.[32] With nearly five years having passed since the first bill introduced to curtail online harm was introduced, it remains to be seen whether a consensus will be reached on the bill in the upcoming session, as many safety concerns still persist.[33]

[1] Michael Blanding, An Argument for Free Speech, the “Lifeblood of Democracy,” TuftsNow (Feb. 20, 2024),https://now.tufts.edu/2024/02/20/argument-free-speech-lifeblood-democracy.

[2] Id.

[3] Conor Friedersdor, Canada’s Exremist Attack on Free Speech, The Atlantic  (June 6, 2024), https://www.theatlantic.com/ideas/archive/2024/06/canada-online-harms-act/678605/.

[4] Id.

[5] Fahad Siddiqui, Bill C-63: The Online Harms Act, Norton Rose Fulbright (Mar. 12, 2024), https://www.nortonrosefulbright.com/en-us/knowledge/publications/307d02f8/bill-c-63-the-online-harms-act.

[6] Bill C-63, 44th Parl., 1st Sess., 2024 (Can)

[7] David Baldridge et al., Five key elements of Canada’s new Online Harms Act, Schwartz Reisman Inst. for Tech. and Soc’y (Mar. 1, 2024), https://srinstitute.utoronto.ca/news/canada-online-harms-five-key-aspects.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Mandy Lau, An Overview of Canada’s Online Harms Act, Tech Pol’y Press (Mar. 12, 2024), https://www.techpolicy.press/an-overview-of-canadas-online-harms-act/.

[13] Id.

[14] Id.

[15] Id.

[16] Darren Major, Long-awaited online harms bill proposes higher sentences for spreading hate online, CBC News (Feb. 26, 2024), https://www.cbc.ca/news/politics/liberals-table-online-harms-legislation-1.7126080.

[17] Andrew Sullivan, What Governments Can Learn from Canada when Regulating Online Harms, Internet Soc’y (Mar. 18, 2024), https://www.internetsociety.org/blog/2024/03/what-governments-can-learn-from-canada-when-regulating-online-harms/.

[18] Lau, supra note 12.

[19] Department of Justice Canada, Charter Statement – Bill C-63, Canada (June. 4, 2024), https://www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/c63.html#:~:text=Generally%2C%20the%20Online%20Harms%20Act,on%20users%20of%20those%20services.

[20] Derek Hrynyshyn, The Online Harms Act doesn’t go far enough to protect democracy in Canada, The Conversation (Mar. 19, 2024), https://theconversation.com/the-online-harms-act-doesnt-go-far-enough-to-protect-democracy-in-canada-224929.

[21] Id.  

[22] Bill C-63, 44th Parl., 1st Sess. § 318(1) 2024 (Can).

[23] Hrynyshyn, supra note 21.

[24] Department of Justice Canada, supra note 19.

[25] Marie Woolf, Justice Minister defends house arrest power for people feared to commit a hate crime in future, The Globe and mail inc. (Feb. 28, 2024), https://www.theglobeandmail.com/politics/article-justice-minister-defends-house-arrest-power-for-people-feared-to/.

[26] Department of Justice Canada, supra note 19.

[27] Department of Justice Canada, supra note 19.

[28] Department of Justice Canada, supra note 19.

[29] Max Matza, Canada introduces sweeping new online safety rules, BBC News (Feb. 26, 2024), https://www.bbc.com/news/world-us-canada-68409929.

[30] John Paul Tasker, Asked about online harms bill, Poilievre raises Trudeau’s past use of blackface, CBC News (Feb. 21, 2024), https://www.cbc.ca/news/politics/online-harms-bill-poilievre-trudeau-blackface-1.7120979.  

[31] Mia Rabson, Conservatives say they have solution for online harassment after Liberals ‘failed’, CBC News (Sept. 12, 2024), https://www.cbc.ca/news/politics/conservatives-online-harms-bill-1.7321493.

[32] Id.

[33] John Paul Tasker, supra note 30.