Online Harms Act

On February 26, 2024 Bill C63 was introduced with its goal being the enactment of the Online Harms Act (the “Act”).  The focus of the Act is protection of children online and the creation of complaint mechanisms relating to online content.  The internet, social media and online platforms have undergone significant changes over the last decade, with use greatly increasing.  Regulation of social media to date has been almost nonexistent, with little accountability and transparency in terms of what services need to do to help ensure the safety of users.  The responsibility for ensuring safe use has fallen to parents and individuals, with the expectation that individuals take steps to prevent the harms that platforms create or amplify. Unfortunately, there have also been a number of instances where children have been harmed through social media and/or online.  The Act is intended to improve the safety of children and other users of online platforms.  The Act will also introduce steep new penalties for hate crimes. The legislation is aimed at social media services, live streaming services and user-uploaded adult content services that meet a user threshold.  The legislation is aimed at protecting users, particularly children, from harmful content, establishing an enforceable complaint mechanism and also includes Criminal Code and Canadian Human Rights Act amendments.  The Act will require social media platforms to participate in keeping people safe from harm and exploitation.

The Act’s core components include:

1. The introduction of a new legislative and regulatory framework, the Online Harms Act, to reduce exposure to seven kinds of harmful content on online platforms, including livestreaming and adult content services.  The Act includes the creation of a Digital Safety Commission to enforce the framework and a Digital Safety Ombudsperson to provide support for users and victims;
2. Changes to the Criminal Code to better address hate crimes and hate propaganda;
3. Changes to the Canadian Human Rights Act to allow individuals and groups to file complaints against people who post hate speech online; and
4. The enhancement of the laws to protect children from sexual exploitation through amendments to the Act respecting the mandatory report of internet child pornography by persons who provide an internet service.

The duties imposed on social media services include the duty to act responsibly, the duty to make certain content inaccessible and the duty to protect children.  Under the rubric of the requirement to act responsibly, the Act requires service providers to continually assess, mitigate and report on risks to users as well as provide tools for users to flag content, block users and create an internal point of contact for complaints.  Specifically, service providers would be required to:

1. Assess the risk of exposure to harmful content, adopt measures to reduce exposure to harmful content, and assess the effectiveness of these measures;
2. Provide users with guidelines and tools to flag harmful content and to block other users.  Services would also have to set up an internal point of contact for user guidance and complaints;
3. Label harmful content when it is communicated in multiple instances or artificially amplified through automated communications by computer programs.  This requirement would include harmful content shared widely by bots or bot networks;
4. File and publish a Digital Safety Plan containing the measures the service is taking, the effectiveness of those measures, the indicators they use to assess effectiveness and any analysis of new risks or trends related to online safety.  They would also need to identify the data sets they use and keep and provide those data sets to qualified researchers where appropriate.

The seven areas identified as harmful content by the Act include content that sexually victimizes children or revictimizes a survivor, content used to bully children, content that could push a child to harm themselves, content that incites violence or terrorism, content that incites violence, content that foments hatred and intimate content shared without consent.  The language of the Act includes deepfakes.  The Act requires service providers to remove content that sexually victimizes children or assault survivors or shares intimate images without consent.  The Act includes provision for the creation of a digital safety commissioner through which users are able to flag potentially harmful content.  Flagged content must be removed within 24 hours by the service provider.  The Act also imposes an obligation on service providers to protect children, which requires them to ensure that they have age-appropriate design features.

The Act envisions a five person digital safety commission and ombudsperson.  The digital safety commission’s role would be to enforce rules for online platforms and hold them accountable.  Financial penalties for offending platforms can be up to 6% of global revenue or $10,000,000, whichever is greater.  If the administrative penalty is ignored, penalties can increase to $25,000,000 or 8% of global revenue, whichever is greater.  The digital safety ombudsperson will help guide users to answers on how to file complaints and potential recourse options.  The ombudsperson will also be able to make recommendations to social media services, the digital safety commission ad government on an ongoing basis.

The Act also includes language to create a standalone hate crime offence in the Criminal Code, a change from the current legislation which has hate crimes only being an aggravating factor in determining sentencing.  The Act includes language around antisemitism, relating to condoning, denying and/or downplaying the Holocaust.  The new standalone hate crime recognizes the serious harm caused by hate-motivated crime and explicitly condemns hateful conduct.  The new hate crime offence would cover instances motivated by hatred related to race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or gender identity or expression.  In addition the maximum penalties for hate propaganda offences would be increased and advocating or promoting genocide against an identifiable group would have an increased sentence to a maximum of life imprisonment.  The changes to the Criminal Code would also allow any person who reasonably fears that someone will commit a hate propaganda offence or hate crime to seek a court-ordered peace bond to be imposed on the person.

Finally, the Act includes an amendment to the Canadian Human Rights Act to define a new discriminatory practice of communicating hate speech online.  “Hate speech” is defined in the Act as the content of a communication that expresses detestation or vilification of an individual or group of individuals on the basis of prohibited grounds of discrimination.  The provisions would focus on both the content of the speech and its likely consequences. 

While the Act is not yet in force and has not been passed into legislation, it sends a clear message as to the increased seriousness with which online communications are being considered and that government is carefully considering what legislative measures can be put in place to shift at least some of the burden of ensuring online safety to the service providers themselves.

Questions? Comments? Please contact Rose Keith, KC at [email protected].