Government Gaslighting Again?: Unpacking the Uncomfortable Reality of the Online Harms Act

The government seems ready yet again to gaslight its critics and claim that they have it all wrong. But the text is unmistakable and the initial refusal to address the concerns is a mistake.

Arif Virani, MP for Parkdale-High Park by Nicole Contois https://flic.kr/p/ThAyBg CC0 1.0

The Online Harms Act was only introduced two weeks ago, but it already appears the government is ready to run back the same playbook of gaslighting and denials that plagued Bills C-11 and C-18. Those bills, which addressed Internet streaming and news, faced widespread criticism over potential regulation of user content and the prospect of blocked news links on major Internet platforms. Rather than engage in a policy process that took the criticism seriously, the government ignored digital creators (including disrespecting indigenous creators) and dismissed the risks of Bill C-18 as a bluff. The results of that strategy are well-known: Bill C-11 required a policy direction fix and is mired in a years-long regulatory process at the CRTC and news links have been blocked for months on Meta as the list of Canadian media bankruptcies and closures mount.

Bill C-63, the Online Harms Act, offered the chance for a fresh start given that the government seemed to accept the sharp criticism of its first proposal, engaging in a more open consultative process in response. As I noted when the bill was first tabled, the core of the legislation addressing the responsibility of Internet platforms was indeed much improved. Yet it was immediately obvious there were red flags, particularly with respect to the Digital Safety Commission charged with enforcing the law and with the inclusion of Criminal Code and Human Rights Act provisions with overbroad penalties and the potential to weaponize speech complaints. The hope – based on the more collaborative approach used to develop the law – was that there would be a “genuine welcoming of constructive criticism rather than the discouraging, hostile processes of recent years.” Two weeks in that hope is rapidly disappearing.

The government’s shift in approach has come as the criticism has increased. From former Chief Justice of the Supreme Court of Canada Beverly McLachlin (“I’m virtually certain that many of these provisions will be challenged if they stay in their present form”) to Margaret Atwood (“The possibilities for revenge false accusations + thoughtcrime stuff are sooo inviting”), the government seemed caught off guard by the harsh response to its bill. After a second briefing failed to quell the concerns, the Minister and officials in the PMO have gone back to the gaslighting playbook by dismissing the criticism as clickbait, suggesting they involve a misunderstanding of the law.

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.

Post originally appeared at https://www.michaelgeist.ca/2024/03/government-gaslighting-again-unpacking-the-uncomfortable-reality-of-the-online-harms-act/

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