Concerns are being raised about Bill C-63, otherwise known as the Online Harms Bill. Government officials are now saying concerns are just “clickbait”.
It seems the Liberal government has gone back to its default position of how they can do no wrong and anyone who dares to criticize the government are either wrong or are criticizing for nefarious purposes. This regardless of how legitimate the concerns are.
It follows a long pattern of behaviour for this government. For instance, when Bill C-11, now known as the Online Streaming Act, was debated, there were very legitimate concerns about user generated content being downranked in favour of government designated speech (known as “Cancon”). The text was quite clear that this is a sad reality of the legislation. Canadian creators, rightfully, went running to the government to express their dismay of what this could mean for their careers.
Rather than taking any sort of evidence based approach, the government, instead, opted to dismiss such concerns as, at best, “disinformation“, or, at worse, reason to call for “investigations” into anyone daring to say that their legislation is flawed. That bill passed into law and is currently before the CRTC for consultation (which is why the effects haven’t taken hold yet).
When Bill C-18, now known as the Online News Act, was tabled, there were very legitimate concerns that platforms were simply going to drop news links from their platforms, that there were no provisions requiring that any money received should be tied to any actual journalism spending, that whatever money that did get derived from platforms should they actually go along with this would simply get hoovered up by the largest media companies – leaving the smaller players with, at best, crumbs or nothing at all.
The government and its supporters responded that all of this is just untrue and that the platforms dropping news links was just a “bluff”. There was also a general dismissal of any of the criticism as inaccurate and that anyone who criticized the legislation were little more than “shills for Big Tech” and that all it takes is just believing hard enough and the problems would magically go away on its own. As it turns out, burying your head in the sand won’t solve a whole heck of a lot in the long run.
Meta dropped news links just as they said they would. As a result, traffic remained unchanged on Meta platforms while users only passively noticed a difference before continuing to use the platforms. Engagement of Facebook pages for media companies collapsed and Meta’s stock value continued to soar.
Google, the other platform roped into this law, was gearing up to do the same thing. As the deadline approached for the law to come into force, the government panicked and folded, handing everything Google asked for over, killing the link tax concept and calling it a “deal”. It was either that or see the entire news sector go under overnight. The last thing the government wanted to be known for is the government who killed the news sector. While supporters strained to call the $100 million a “win”, a good chunk of that money isn’t even new. Instead, it was already existing deals getting rolled into the figure. What’s more, it wasn’t even close to the $230 million in lost value with Meta’s pullout.
With the losses piling up for the entire news sector, the Canadian government used the last tool in its tool chest and started issuing massive bailouts to the news companies in a last ditch effort to make the large media companies whole again. Regardless of source, it seemed that a vast majority of what money came from all of this was going to the largest players – exactly as critics feared it would.
The large media companies then reacted to all of this. Satisfied that they were able to scam as much money out of the system as they could with this, the pink slips began to flow. The CBC slashed 10% of its workforce. Bell followed suit and slashed 9% of its workforce. The moves proved once and for all that none of this was ever about “saving” journalism jobs. It was about trying to pull the wool over everyone’s eyes, then taking the money and running.
The experience with both bills has shown a virtually unbroken streak of critics being right about everything and supporters being wrong about everything. What’s more, all of this established a pattern of the government pushing legislation, dismissing concerns as wrong or nefarious, then getting proven wrong afterwards when the consequences critics warned about come to fruition. The government didn’t heed the warnings from the Online Streaming Act. Then, the government demonstrated that they didn’t learn from the first time and refused to heed the warnings of the Online New Act. You’d think they they would get a clue, but as we are finding out, they aren’t.
To be fair, there was some hope that maybe the government was finally listening to independent experts and observers in the tech world with the Online Harms Bill. Indeed, a lot of the problems found in the 2021 version were actually solved after that version faced heavy criticism from almost all stakeholders.
While many problems were solved, there were new concerns about the legislation leaving the door open to secret investigations, the sweeping power of the new governmental bodies to make judicial rulings and hold secret hearings, and the changes to the Criminal Code among other things. It would seem that the brief moment of the government listening to concerns has ended as government officials have taken to dismissing concerns. From the CBC:
Asked about Atwood’s comment during an event in Toronto, Virani said there’s a lack of understanding about Bill C-63 and how to combat hate.
Virani said the definition of hate speech in the bill does not include content that’s “awful but lawful.”
“It includes expressions of detestation and vilification. It does not include insults, offensive comments, or jokes that are not very polite,” said Virani in French.
“The idea that someone on their smartphone on an afternoon while they’re watching a football game, if they insult anyone … could be condemned in a court or caught by a peace bond is ridiculous, in my opinion.”
What’s more, some have taken to dismissing the concerns as outright “clickbait”
Online Harms Act has real problems once it shifts from Internet platform rules. The Ministerial and PMO staff response to criticism – essentially telling @MargaretAtwood or ex-SCC chief justice they don’t know what they’re talking about – isn’t helpful. https://t.co/BWSKGiGtAV pic.twitter.com/NIQhWOLn8X
— Michael Geist (@mgeist) March 13, 2024
Here’s the image:
For those who can’t read the tweets in the image, it says this:
Arif Virani
Thanks for sharing, @taylor_owen. We’ve been clear since day 1: we welcome debate on the Online Harms Act. That’s how we make it better.We’re working hard to get it right. Because Canadians deserve to be save online.
Skip the click bait. Learn more:
Marci Ien
Skip the clickbait. Learn more:
The comments are making it very clear that the government didn’t learn the first two times they took this approach. Instead, they are resorting to the usual gaslighting. It didn’t work the first two times, but they seem intent in pushing a theory that this time will somehow be different.
University law professor, Michael Geist, posted his response to these accusations and pointed out that the concerns are rooted in the text of the bill (as they should be):
There are plenty of reliable sources on Bill C-63 (my Law Bytes podcast this week features Vivek Krishnamurthy, who was on the government’s expert panel on online harms, and I participated in another podcast with Senator Pamela Wallin) and the emerging consensus is that there are legitimate, serious concerns with the bill. These include:
- The poorly conceived Digital Safety Commission lacks even basic rules of evidence, can conduct secret hearings, and has been granted an astonishing array of powers with limited oversight. This isn’t a fabrication. For example, Section 87 of the bill literally says “the Commission is not bound by any legal or technical rules of evidence.”
- The Criminal Code provisions are indefensible: they really do include penalties that run as high as life in prison for committing a crime if motivated by hatred (Section 320.1001 on Offence Motivated By Hatred) and feature rules that introduce peace bonds for the possibility of a future hate offence with requirements to wear a monitoring device among the available conditions (Section 810.012 on Fear of Hate Propaganda Offence or Hate Crime).
- The Human Rights Act changes absolutely open the door to the weaponization of complaints for communication of hate speech online that “is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination” (Section 13.1). The penalties are indeed up to $20,000 for the complainant and up to $50,000 to the government (Section 53.1).
This is the plain text of bill. The Spectator article that the Minister suggests is clickbait may overstate some aspects of Bill C-63, but the core elements are accurate. Those supporters of the bill that are clinging to the Internet platform regulation provisions would do well to keep scrolling through the full text. The most obvious solution is to cut out the Criminal Code and Human Rights Act provisions, which have nothing to do with establishing Internet platform liability for online harms. Instead, the government seems ready yet again to gaslight its critics and claim that they have it all wrong. But the text of the law is unmistakable and the initial refusal to address the concerns is a mistake that, if it persists, risks sinking the entire bill.
There is a lot of nuance in the legislation. There have been concerns expressed that aren’t actually a thing in the legislation. For instance, if you decide to be a racist twat and post some bigoted insult on Facebook, you aren’t going to be sentenced to life in prison for it. That simply isn’t a thing in the legislation thanks in large part to the exceptions regarding disdain.
On the other hand, there are other legitimate concerns expressed by several organizations and individuals that do need addressing. To paint it all in the same brush is simply irresponsible and lesson that should’ve been learned from Bill C-11 and Bill C-18. It’s disappointing to see the government default back to this disastrous position as it helps no one involved. If anything, the government is telling everyone that it simply can’t handle criticism of any kind and treats criticism of all shapes and sizes as personal attacks and “bullying”. It goes without saying that this is not how any of this works.
Ignoring these criticisms is going to come at a huge cost when civil rights organizations invariably end up litigating the government, challenging this whole thing on constitutional grounds. We haven’t seen that in Bill C-11 because the CRTC is still undergoing a consultation process on the new law. Bill C-18 didn’t see it because Meta chose to just drop news links and the government caved to Google afterwards. Various organizations that could theoretically challenge the government have already expressed anger towards the government and have demanded that changes be made. So, we are already seeing signs of where this is all heading.
Still, it’s really disappointing that the government has refused to learn the lessons from the first two bills. While the Online Harms Bill has been improved over the 2021 version, there are still issues that need to be worked out. If the government is closing any avenue for debate, then the problems will fester and blow up just like the previous two times the government took this approach.
A leopard can’t change its spots.