It’s the bill that has been keeping experts up all night. The much feared Online Harms bill has now appeared on the notice paper.
For years, I have been discussing Canada’s war on the open internet as a three pronged approach. That three pronged approach is the Online Streaming Act, the Online News Act, and the Online Harms Bill.
The Online Streaming Act was the first prong. It was designed to wipe out all independent voices on social media video sharing sites like YouTube and TikTok. It replaces them with the mainstream traditional media outlets content, ensuring Canadian innovators will never find an audience in the Canadian public. What’s more, it saddles creators with a massive tax on top of it so that their earnings are going to fund the very media outlets that have spent years demonizing these platforms. Currently, the legislation passed and the new law is working its way through the CRTC “consultations” (quotation marks because it’s little more than a box ticking exercise for the regulator before they carry out the big media lobbyists bidding afterwards).
The Online News Act was the second prong. It was designed to wipe out all small independent news outlets and permanently prop up the legacy news organizations like the CBC, CTV, the Toronto Star, and others. This by essentially diverting funding generated on platforms like Google and Facebook directly to their bank accounts, ensuring that they always have a massive financial advantage over other players without putting in any effort whatsoever. Predictably, the scheme backfired with Meta dropping news links. This crippled the entire news sector’s online presence. With Google gearing up to do the same thing, it looked like the entire news sector would be wiped out completely. Had it not been for the Canadian government surrendering at the last moment, news websites would’ve been delisted from Google listings completely – ensuring the demise of a vast majority of Canadian online news websites. Now, the sector is operating at a $130 million loss a year thanks to this policy blunder (we sincerely doubt we would be operating today had it not been for the government folding to Google).
While we are, so far, surviving the first two prongs that are either damaging or threatening to damage our ability to operate, all of it pails in comparison to the potential threats of the Online Harms bill – the third prong on the war on the open internet.
While the first two prongs hurts you as a business, and attacks specific economic sectors, the Online Harms bill threatens to kill everyone’s careers. You might think that with a little innovation and creativity, you can survive, but with the Online Harms bill, you simply don’t survive. It’s like saying that you can survive the nuclear blast because you did a couple extra sit ups that morning. It isn’t happening. Those extra sit ups makes the difference between you dying and you dying.
What do we know about the bill? Well, in 2021, the Canadian government issued an advisory notice to the public under the cover story of holding a “consultation“. The notice stated how the Canadian government intended on putting together their Online Harms bill and expected the Canadian public to agree with everything they said. Through that, we got a glimpse into the horror show that is the Online Harms bill as envisioned by the Canadian government at the time.
What the Canadian government envisioned was that all websites establish a so-called “flagging” system. In it, anyone can flag anything as “harmful”. What could be considered “harmful”? Anything that anonymous person can come up with in their wild imagination. Once that content is flagged, then the website operator has 24 hours to remove that content.
Further, the website is being asked to outline moderation guidelines publicly. For a large website, not that big of a deal, but for someone starting up a new website, that’s a huge problem under most circumstances as it provides a massive new barrier to entry. What’s worse is that all websites have to put together a massive report for the Digital Safety Commission on all moderating activities, the volume of of harmful content that was moderated, how they monetize harmful content, and a whole stack of other ridiculous data tracking. This report has to be handed over on a regular basis. For a lot of smaller websites, this is enough to kill your operation right then and there. Who knows how smaller players are supposed to navigate those regulatory hurdles for trying to build a website?
Now, what happens if you don’t respond to a complaint within 24 hours? Then the website operator is liable for a $10 million fine or 3% of annual turnover, whichever is greater. Just to put the final nail in the coffin of your website owning dreams, there is no scope over who is in and who is out in the bill. Everyone is in and it encapsulates every website operating in Canada. So, long story short, you don’t survive. If you are smart, you shut down the website sometime before this bill enters into force. If you are stupid, you foolishly move ahead thinking your own ego will win the day. When you get hit with a botnet of complaints that measures into the thousands per second, then you realize that you are dying in a ditch penniless. Those are your choices as an online entrepreneur.
So, the government was pretending to solicit feedback, but ended up getting it anyway. Experts, individuals, and other stakeholders issued responses and they all agreed that this is a bad concept of a bill. Their concerns ranged widely. Whether it was this being a threat to Canadian online innovation, a threat to freedom of expression, the fact that the concept is extremely vulnerable to a Charter challenge, the possibility of increased RCMP surveillance of minorities, or a range of other concerns, almost everyone told the government that this was a bad approach.
While that, in and of itself, is notable, the governments reaction was also notable. As we reported in January of 2023, the governments response was essentially that the responses were not “valid”. They pushed additional follow-up consultations, saying that anyone who opposes the legislation was a “non-ally”. They concluded that if you have so-called “lived experiences” in dealing with this sort of thing, then you would automatically support this legislation. In doing so, they wanted to filter out any and all criticism aimed at this legislation, ignoring expert commentary in the process. That trend would carry through the Online Streaming Act and Online News Act debate where experts were routinely ignored along with any evidence that contradicted the objectives of the federal government. At one point, the government got so extreme, that lawmakers started demanding “investigations” into anyone daring to criticize the governments legislative approach.
Given all that, many people, including ourselves, are holding out little hope that the Canadian government has listened to any expert commentary that had even the slightest chance of course correcting the Online Harms bill. Recently, we learned that the Online Harms bill has now appeared in the notice paper:
Introduction of Government Bills
February 22, 2024 — The Minister of Justice — Bill entitled “An Act to enact the Online Harms Act, to amend the Criminal Code, the Canadian Human Rights Act and An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service and to make consequential and related amendments to other Acts”.
Recommendation
(Pursuant to Standing Order 79(2))
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to enact the Online Harms Act, to amend the Criminal Code, the Canadian Human Rights Act and An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service and to make consequential and related amendments to other Acts”.
While there have been multiple promises in the past to table this legislation soon, those promises ultimately fizzled out. This time, it was formally added to the notice paper. It’s how the Online Streaming Act and the Online News Act started and, both times, the notice paper was followed up with the legislation. So, this nightmare fuel of a bill is likely coming at this point.
Technically speaking, it’s entirely possible that the legislation has changed since 2021. Again, though, given that the government has a very long track record of ignoring experts and anyone criticizing its approach, it’s hard to hold out hope that this bill would be any different. We’ll, of course, offer our analysis as soon as possible once this bill is tabled – something we always do in these situations. In all likelihood, though, the Canadian internet is going to soon be staring down the barrel of an existential threat. That is something almost no one is looking forward to.
(Via @MGeist)
