Rumours suggest that the Online Harms Bill could be tabled today as Bill C-63. We thought we’d discuss some of the things we are looking for.
The other day, we reported on the much feared Online Harms Bill appearing on the notice paper. At the time, we called it “nightmare fuel” for very good reason. During the “consultation” process in 2021, the legislation was basically put forth and the government asked the Canadian public to more or less agree with their approach. In response, experts, stakeholders, and individuals almost universally rejected the proposal, noting the countless flaws in the legislation.
With the rumours suggesting that the bill could be introduced later today, some have already started writing about things they are looking for. So, it made sense that we do something similar on our part.
Is There an Actual Definition of “Harmful” Content?
One of the biggest problems with the legislation back in 2021 is the definition of what is “harmful” content. In practical terms, the 2021 version of this legislation concluded that what is “harmful” could literally mean anything by any one. For all we know, some anonymous person could look at a random article on our website and conclude that we probably smell funny. Therefore, they’ll issue a complaint against our website.
Ideally, the definition of “harmful” should be scaled back to obviously illegal stuff like child pornography. If it’s illegal, then that could trigger a complaint. That would be a much more ideal scenario. This as opposed to, “That person was being mean!”. A much more broad term that has been used for years is “awful but lawful”. Attempts to regulate that kind of content would easily imperil this legislation into being subjected to a Charter challenge.
Is There Proper Scoping of Websites in the Legislation?
Another critical aspect in this legislation is whether there is proper scoping in this legislation or not. In other words, what websites are subject to these regulations and what is not? As far as the 2021 version is concerned, there simply wasn’t any scope and all websites are being demanded to follow these strict, likely unconstitutional, laws. This is important because the 24 hour time windows for a response and the $10 million fines were key components in this, potentially shutting down pretty much every website operating in Canada. While those are its own problems, a major key is scoping.
So, ideally, we would see legislation say something along the lines of “websites that have 1,000,000 unique visitors per month or less are exempt”. It’s probably unlikely that we’ll see this, but that is one thing we are looking for.
Is the 24 Hour Requirement Still Intact?
A major part of what makes the Online Harms Proposal so unworkable is the 24 hour time window. Everyone is subject to this, but essentially, if there is no response from a complaint within 24 hours, then the website is subject to a fine. It’s completely unworkable because all it takes to shut down a website is to do a variation of a DDOS (Distributed Denial of Service) attack where an attacker hammers the complaints system with hundreds of thousands of random garbage complaints. Then, when the 24 hour time window elapses, subject the website to billions in fines, taking the website down.
Ideally, I’d like to see the time window gone completely as it is completely unworkable and makes the legislation ripe for abuse.
Are Fines Scaled Properly?
With the threat of a $10 million fine (or 3% of annual turnover, whichever is greater), most web owners who are familiar with the legislation will simply choose to shut down their websites altogether. No one in their right mind would risk a $10 million fine to maintain their pottery website that they have been maintaining just for fun. Heck, most people wouldn’t even risk their Shopify website selling T-Shirts if they knew that it could make them liable for a $10 million fine. It’s insane.
Ideally, we’d like to see this fine removed completely. Failing that, scale any fine to be appropriate for the size of the operation. If a small website that gets 3 pageviews per week suddenly gets hit with a fine, wouldn’t it be more appropriate to fine that website $5 instead of $10 million? I would think so.
Is ISP Level Website Blocking Removed?
The 2021 proposal envisioned the legislation apply to every website on the planet. For those who followed copyright law in the 2000’s and 2010’s know this is a laughable endeavour. So, in response, the government demanded that every website follow their laws. Failure to comply with their new law would mean that the government orders ISPs to outright block that website. This is incredibly unconstitutional as it is blatant censorship. Unless we are talking about actual major crimes being committed on that website, then maybe drop website censorship entirely.
Can Websites Appeal a Complaint?
If a website receives a complaint, there should be a process in which the website can appeal a complaint. So, for instance, someone writes a complaint saying that it is harmful to suggest that ketchup is sweet, then a website owner should have the ability to say, “uh, not really a valid complaint.” I don’t recall seeing that anywhere in the 2021 proposal. Instead, the 2021 version envisions a system that is basically guilt upon accusation. What’s more, there should be a system in place (failing proper scoping) that allows a website to tell regulators, “Hey, we just got 4,000 complaints in the last hour. It’s going to take more than 24 hours to get through these complaints since this is a one person operation.” Failure to even include that makes this legislation even more ripe for abuse.
Who Enforces This Legislation and How Does Enforcement Work?
More broadly speaking, what is the process for a complaint? Are websites still being required to have a complaints process that anyone can flag or are complaints directed to, say, the CRTC for review? Arguably, that can make a huge difference in determining whether or not the system is even workable. If the complaints are vetted for an actual complaint vs an obviously fraudulent complaint being allowed to fly. If there is a vetting process of some kind, then it would mean the difference between me shutting down the website the day this law is enforced and me sticking around to see how it all pans out.
Is It Possible to Challenge a Decision in Court?
Whether it is foreign or domestic, there should be a process that allows a website to at least defend themselves in court. One of the fatal flaws of Bill S-210 is that if a foreign website is suspected of containing adult material, then a court must find them guilty. It’s ridiculous and we are hoping a similar flaw isn’t found in this legislation. Otherwise, again, we could see a Charter challenge that sees part or the whole law (in an ideal world) thrown out as unconstitutional.
Are There Going to Be Carve Outs?
Another thing I’m hoping to not see are specific carve outs. So, for instance, websites that are major media outlets would magically get an exemption to this. Hopefully, that doesn’t happen because it would only make this legislation that much more unconstitutional.
Conclusions
There’s likely other angles we are forgetting for the time being, but those are some of the things that is going through my mind at the moment. Additionally, there could be other nasty surprises found in the legislation that I wasn’t expecting. In fact, it would be a surprise if there weren’t other nasty surprises in the legislation.
As I’ve said previously, I’m not holding out much hope that this will be a sane law. I’m honestly cynical enough to believe this is going to be a bill that, for practical reasons, envisions wiping out the Canadian internet completely.
Either way, I’ll be on the lookout for the legislation appearing on the government website so I can dive into the actual inner workings of the legislation and get a better understanding of what has and hasn’t changed.
Drew Wilson on Twitter: @icecube85 and Facebook.
