On February 26, the Government of Canada published the text of its latest rules for the internet.
The Online Harms Act, introduced formally as Bill C-63, will result in the most significant expansion of Canada’s hate speech laws and create one of North America’s most rigid regulatory environments for media and social media companies.
The bill follows on the heels of the Online Streaming Act (Bill C-11), which became law on April 27, 2023, and introduced Canadian content requirements for commercial streaming services and social media platforms to be implemented by the CRTC.
Together, the two pieces of legislation will overhaul how companies that do business online are regulated in Canada.
Bill C-63
The Online Harms Act is currently at second reading in the House of Commons. If the bill comes into force in its current form:
- Content Moderation: Online platforms operating in Canada will be required to monitor and remove seven categories of harmful content, which broadly relate to non-consensual intimate content, content that victimizes children, and content that foments hatred or incites violence.
- New Regulators: Three new regulatory bodies will be created:
- The Digital Safety Commission will subject online services to compliance audits, enforcement orders and penalties “to ensure that operators of social media services…are transparent and accountable.” The Commission will have the authority to order the removal of certain types of content within 24 hours.
- The Digital Safety Ombudsperson will operate much like provincial human rights commissions by focussing on systemic issues relating to online content moderation and advocating “for the public interest in relation to online safety.”
- The Digital Safety Office of Canada will support the Digital Safety Commission and the Digital Safety Ombudsperson in fulfilling their mandates.
- Access to Data: The Digital Safety Commission will be authorized to accredit certain persons to have access to the inventory of electronic data of the operators of social media services.
- New Administrative Penalties: the Digital Safety Commission will be authorized to issue financial penalties for breaches of the new law of up to the greater of 6% of gross global revenue or $10 million.
- Costs Charges: The bill will authorize regulations to impose charges on social media operators for the purpose of recovering the costs of the new regulatory mechanisms.
- Offences for Hateful Content: The Criminal Code will be amended to create new penalties for “committing an offence… that is motivated by hatred,” and the Canadian Human Rights Commission will be re-empowered to address hate speech by issuing fines for what the bill calls “hateful messages.”
Next steps
Bill C-63 is subject to further review by Parliament.
In light of the attention the government has drawn to this legislation, however, we expect the bill to become law in the near term.
Like the Online Streaming Act, the Online Harms Act will very likely leave it to the new regulatory entities that it creates to adopt regulations and policies that will set out in greater detail how the new laws will be applied, the information demands that the new regulators will be able to make of companies operating online, procedures for audits and regulatory proceedings to enforce the new laws, and the consultation framework for the new procedures.
Companies should be prepared to engage in the legislative and consultation processes to ensure that regulators and policymakers are aware of the potential impacts of the new rules on businesses.
The author would like to thank Katie Cheung, articling student, for her contribution to preparing this legal update.
