No Minister of Justice, The Online Harms Bill Wouldn’t Have Made a Difference in That 2015 Case

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The Minister of Justice, Arif Virani, is arguing that the Online Harms Bill would’ve tackled the issues of what happened in 2015. The facts beg to differ.

Earlier this month, supporters of the Online Harms bill suggested that criticism towards the Online Harms bill is little more than “clickbait“. The comments followed a very familiar pattern of behaviour for lawmakers pushing bad bills. That pattern being to table a bad bill, attack valid criticism as nefarious, declaring victory when the bad bill is passed, then try and make up any excuse they can think of when the new law proceeds to fall apart.

The pattern was seen through the Online News Act disaster where that terrible bill was tabled, analysis concluded that it is a very flawed bill. Supporters then concluded that anyone criticizing the bill were little more than “Big Tech shills”. Lawmakers then proceeded to ignore all of the evidence. After that, they passed the legislation. Meta then proceeded to block news links on their platforms (a move that was long warned about, but dismissed as a “bluff”). The move then caused various media outlets to either announce operational slow downs or total shut downs. The government then proceeded to fold to Google and hand them everything they wanted. Supporters desperately tried to sell the story that $100 million somehow counted as a victory (it didn’t, knowing Meta provided $230 million in value to the publishers, leading to the media companies to operate at a net loss). The large media outlets who were the biggest beneficiaries then began hacking and slashing jobs, showcasing that this debate was never about “saving” journalism jobs in the first place. The whole bill fell apart, the end.

Rather than learn from these mistakes, it seems the government is now willing to simply repeat history with the Online Harms bill instead. One aspect in selling the Online News Act was the use of flooding the zone of disinformation (ala Big Lie 1.0 and Big Lie 2.0). Apparently, that is what we are seeing with the Online Harms Bill.

Canadian Justice Minister, Arif Virani, posted a tweet saying that the Online Harms bill would tackle the issues seen in a 2015 voyeurism case.

When intimate images are shared without consent online, it can have a devastating impact on victims.

Our Online Harms Act aims to address this head-on by requiring such images to be removed—because content like this has no place online.

The post referenced this CBC article talking about the case. Part of the article reads as follows:

According to an agreed statement of facts, the man met an 18-year-old woman at the party.

Court documents say the woman became intoxicated and was led into a concrete room. The two had sex and the woman ended it and went to find a friend to take her home, according to the documents.

“The Crown did not seek to prove a lack of consent and no such lack of consent was admitted by the accused.”

When the woman returned to her residence, she was told by her friends that an 11-second video of her having sex had been shared with a Snapchat group called “pledge scum.” On the video, the accused had superimposed the words “Jail Cell,” which was the nickname for the concrete room.

Judge notes ‘devastating impact’ on victims

Also according to the court documents, during the video, the man switched to the front-facing camera, capturing his face while having sex and laughing.

They say the woman was not aware their actions were being captured on video and she did not consent to it being shot or shared.

The court documents said the man went to the woman’s residence later that night after hearing she was upset and expressed regret and deleted the video.

Police investigated, found the image on the man’s phone and charged him.

That last paragraph in this excerpt is very important. The police were able to use existing laws to charge the man. In other words, such activity is already illegal to begin with. What’s more, the police were able to lay charges. What’s more, the article pointed out that the man in question plead guilty on top of it all. In other words, the existing legal mechanisms worked here (which is a good thing, might I add).

So, already, you start to see a disconnect between the Justice Minister’s comments about how the Online Harms bill supposedly is meant to tackle this very issue and what actually happened.

The comments didn’t go unnoticed, either. David Fraser, AKA the Privacy Lawyer, responded with this:

A few observations:
(1) This case is horrible;
(2) This is already a crime; and
(3) The #OnlineHarmsAct would, as written, would not apply to these facts.

Not surprisingly, Fraser wasn’t impressed by this cheap attempt at selling the Online Harms bill:

First tweet:

I’ll tell you why the #OnlineHarmsAct doesn’t apply in a moment, but I would have hoped that the Minister of Justice would know the details of the bill. He says it “aims to address this head on” but it doesn’t.

Tweet 2:

The comms around the #OnlineHarmsAct are just feeding my cynicism. I believe the Minister has deleted some previous tweets in support of the bill, but I haven’t saved them so don’t have the receipts.

Tweet 3:

The bill excludes private messaging features, which includes non-public groups. The (already criminal) video was posted in a non-public group.

Fraser cited Section 6 of the bill which reads as follows:

Exclusion of private messaging feature
6 (1) The duties imposed under this Act on the operator of a regulated service do not apply in respect of any private messaging feature of the regulated service.

Definition of private messaging feature

(2) For the purposes of subsection (1), private messaging feature means a feature that

(a) enables a user to communicate content to a limited number of users determined by the user; and

(b) does not enable a user to communicate content to a potentially unlimited number of users not determined by the user.

In the above case, the video was shared privately on Snapchat with a group of people. So, knowing this, the bill would’ve actually excluded the mans activity had it been law at the time. In other words, Fraser is absolutely correct in pointing out that this bill would never have applied in this case.

The Justice Minister was trying to pull a fast one in an effort to sell his legislation. Rightfully, the Minister got called out for it. This isn’t the first time we’ve seen misleading statements trying to push a bill. What’s more, this likely won’t be the last.

Drew Wilson on Mastodon, Twitter and Facebook.

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