In an admittedly surprising move, the government has said that it will be splitting the Online Harms bill up to help its passage.
In the leadup to the Online Streaming Act and Online News Act being tabled and put through the legislative process, I often referred to the Canadian government’s legislative plans as a three pronged approach to destroy the Canadian internet. The Online News Act, at the time, was seen as killing online journalism in Canada. The Online Streaming Act, meanwhile, would kill streaming in Canada for the most part and leave what survives to be really expensive. While that would put the open internet on the ropes, the Online Harms bill would kill off literally every other website that exists. In short, it would act as a nuclear bomb that wipes out what’s left of the open internet.
This perspective was, generally speaking, not wrong. The Online News Act did wipe out news content from Meta, causing a string of bankruptcies and survivors of this to spill a considerable amount of red ink on the balance sheets. The only thing stopping from the catastrophic collapse of the news sector in general online was the fact that the Canadian government folded to Google, sparing online news sites from getting wiped out on Google on top of it all.
The Online Streaming Act, currently before the CRTC, is still on track to drive smaller streaming platforms from the country, screw over Canadian audiences for digital first creators, and completely screw up the experience of streaming platforms that stick around and pass along the costs of the Online Streaming Act onto consumers. The only reason we aren’t seeing the full effects now is because the CRTC is still conducting consultations – consultations that are expected to carry over into late 2025 and likely into 2026.
This leaves the Online Harms bill. Given the history of the Canadian government of ignoring expert opinion and the concerns of citizens in the other two bills, it was safe to say, at least at the time, that they were going to ram through the awful legislation. Right up to the point where it made it onto the notice paper back February, all evidence we had at the time suggested that they were going to just carry on through with the worst concepts that they came up with during the “consultation” (really, it was just a consultation by notice where the government said that this is what they were planning on doing and expected the Canadian public to just mindlessly nod, agreeing with the government in every way).
To call the concepts expressed prior to the bill being tabled as a nuclear bomb on the internet was no exaggeration. For one, the previous version of the bill wouldn’t even really bother doing that great of a job at defining what is and is not “harmful”. From there, they would demand systems be in place to take down anything any anonymous user considers “harmful” within 24 hours. Failure to do that for any website would subject the site to 3% of annual turnover or $10 million fines, whichever is greater. It’s basically a lot of words to say that your website is not going to survive. No amount of “trying” to comply is going to fix that. You are just going to either shut down voluntarily or your going to become destitute and have your site shut down. There is no third option for you running a website in Canada.
Of course, as I noted already, this was the thinking prior to the bill being tabled. What happened afterwards was both surprising and a massive relief. After the legislation was tabled, we diligently did our own analysis on the legislation and found the many nasty digital provisions were removed. This probably marked one of the few times the government actually listened. Open Media also responded to the legislation with the same amount of relief that the nasty digital provisions were removed as well. So, it wasn’t just me reacting in this way.
While the nasty digital provisions were removed, that didn’t necessarily mean the legislation was perfect in every way. In fact, there were plenty of criticisms levied against the legislation. This has more to do with the criminal provisions affecting general civil rights. The Canadian Civil Liberties Association (CCLA) noted that the legislation re-introduces restrictions on freedom of expression. One thing they singled out was life imprisonment for material deemed to be “incitement to genocide” as well as other speech crimes that carry 5 year prison sentences.
The way these provisions are framed, I found myself realizing we are venturing outside my field of expertise because much of these provisions fall within criminal law and outside of the various technological fields that I cover. While that sounds like a minor shift in topic, criminal law is a really REALLY big field with its own share of nuances that I have varying degrees of familiarity with as opposed to having in-depth knowledge in the area. So, when the debate headed in that direction, it was a bit of an “uh oh” moment for me because my ability to follow was quickly becoming limited.
At any rate, it appears that even the government is recognizing just how complex these issues are becoming. According to the Globe and Mail (probably paywalled), the government has decided to start splitting up the bill into more manageable pieces:
Justice Minister Arif Virani has announced he is splitting the online harms bill in an effort to speed its passage into law, separating measures to protect children from new criminal offences that civil liberties groups and lawyers have warned are heavy-handed and threaten freedom of speech.
The mammoth bill has been stuck in the House of Commons since September and held up by prolonged filibustering, reducing its chances of clearing its parliamentary stages and becoming law before the next election.
Earlier this year, more than 20 civil society groups and legal experts delivered an open letter to Mr. Virani urging him to split parts two and three of Bill C-63, separating new provisions in the Criminal Code and under the Canadian Human Rights Act from other measures designed to combat online harm.
Rhéal Fortin, the Bloc Québécois’s justice critic, also supported splitting the bill so its two parts can be considered in Parliament separately. Bill C-63 is opposed by the Conservatives, so the government has been relying on NDP support to push it through, but it is still at second reading in the Commons and has yet to proceed to the Senate.
So, it seems a lot of stakeholders and politicians agree that this bill has gotten incredibly complex and the need to divvy the bill up into sections to make it more manageable is the next logical step for this bill. So, it’ll be interested to see what gets divided up where and what digital provisions end up being its own bill. With the election approaching sometime next year, it is looking more and more likely that this would get debated in the next government as well.
What’s worth noting in all of this is that there is a filibuster going on right now. It’s likely a huge reason why the disastrous age verification bill has not received royal assent even though it seemed like a sure thing last month. The result of that is that this puts legislation further behind in the legislative process into greater uncertainty (possibly doubt at this point) of passage before the next election.
Still, this is an interesting development to say the least.
(Via @MGeist)
