New online harms bill would force major online services to quickly take down harmful sexual content

In an effort to address what it sees as the rising risk of harmful online content, the federal government has unveiled a new bill proposing a sweeping suite of new requirements for platforms and the creation of a new digital safety oversight body to compel these popular sites to act or face penalties.

Included in the bill are also enhancements to Canada's punishments for hate propaganda and the sharing of child sexual exploitation material.

Justice Minister Arif Virani tabled the long-awaited piece of legislation on Monday.

"It is shocking what is available online," said Virani. "This bill targets the worst of what we see."

Bill C-63, the "Online Harms Act" as it has been named, focuses on seven categories of harmful content:

• Content that sexually victimizes a child or re-victimizes a survivor
• Content used to bully a child
• Content that induces a child to harm themselves
• Content that incites violent extremism or terrorism
• Content that incites violence
• Content that foments hatred, and
• Intimate content communicated without consent, including deepfakes.

The aim of this legislation, according to government officials who provided a briefing on the contents of the nearly 90-page bill, is twofold: reducing users' exposure to harmful content; and making online services accountable for and transparent about how they handle harmful material on their platforms.

"Right now where your posts go, and what appears in your feed are dictated by platforms. Through this bill, we are restoring more of that power to you," the justice minister said.

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The bill targets social media services, live-streaming services and "user-uploaded adult content services." These entities are being put under the umbrella term of "online services," and should the bill pass as drafted, the sites subject to the new rules could be subject to millions in fines for non-compliance.

"Right now it is too easy for social media companies to look the other way as hate and exploitation festers on their platforms. This bill will require platforms to do their part," Virani said, suggesting that while Canada has rigorous safety standards for toys such as Lego, the same can't be said about what comes across children's screens.

While the Liberals say they'll be centring their new rules on platforms Canadians use the most, specifically which sites qualify will depend on if they meet the threshold of users the government intends to set out in regulations, once the bill passes.

Over time, additional online services could be added to the list and be subject to these new rules, the government says, if they begin to pose "a significant risk of harm."

Private and encrypted messaging services will be excluded, such as direct messaging or emails, while officials said Monday that private groups on social media platforms could be subject to the new rules.

Among the new measures the Liberals are seeking to advance is a mechanism forcing major online entities to swiftly remove content that sexually victimizes a child or re-victimizes a survivor, as well as intimate content communicated without consent such as "revenge porn" or non-consensual AI porn deepfakes.

While the first draft proposal of online harms legislation suggested this type of 24-hour takedown requirement be used more broadly, under Bill C-63 this measure is restricted to these forms of non-consensual sexual material, and comes with a coinciding oversight and review process.

New duties for platforms

Building on their stated focus on harms to youth, the federal government is proposing to impose a specific "duty to protect children" for online services as part of a trio of obligations.

The other two duties are: "to act responsibly" and "to make certain content inaccessible."

Under the duty to act responsibly, online services will be required to assess, mitigate and report on the risks posed by their services, provide tools to empower users to flag content and block users, publish "digital safety plans," and share data including internal systems and tools with researchers.

The new 24-hour takedown requirement falls under platforms' duty to make certain content inaccessible, alongside new measures to allow users to flag the content directly and file a complaint about its existence to a new Digital Safety Commission.

As for the special protections for children, the Liberals want online services to adopt age-appropriate design features similar to those adopted in the U.K., Australia and the EU.

Examples of these features are parental controls, content warning labels, safe search settings, rules around targeted ads and default settings for whom minors can interact with.

Failure to act could see these sites face a maximum penalty of six per cent of their company's gross global revenue, or $10 million, whichever is greater.

New digital safety commission

To oversee this new regulatory regime and field Canadians' related complaints, Bill C-63 proposes to create a new organization that would include a five-person digital safety commission, and an independent digital safety ombudsperson, as part of a digital safety office.

The commission, which will be appointed, will be tasked with administering and enforcing the government's new rules and hold online services accountable. It will have the power to order the removal of the types of sexual content that fall under the 24-hour takedown. And according to Virani, in an effort for cross-partisan backing, the appointment of the chair will be voted on in Parliament.

The ombudsperson will also be appointed by the government, but will take a more user-centric role, including providing public education about Canadians' recourse options regarding concerns about platforms' content moderation, as well as consulting victims and making recommendations to social media services and the government.

As for how this new office will be funded, according to departmental officials, the body will be able to recover costs from the online services through the administrative monetary penalty regime, but there will also be budgetary funds available "in due course."

Hate, child exploitation reforms

Further, through amendments to the Criminal Code and the Canadian Human Rights Act, the Liberals are also seeking to "better address and denounce" hate propaganda.

Specifically, the Liberals are proposing a new standalone hate crime offence that would apply to every offence in the Criminal Code and in any other act of Parliament, allowing penalties of up to life imprisonment "to denounce and deter" hate-motivated conduct as a crime in itself, rather than as an aggravating factor.

Through Bill C-63, the government is aiming to also raise the maximum punishment for the four existing hate propaganda offences and add a definition of "hatred" to the Criminal Code.

Through changes to the Canadian Human Rights Act, the bill proposes to make it clear that posting hate speech online is discrimination and sets out to create a new process for assessing hate speech complaints.

This includes empowering the Canadian Human Rights Tribunal to adjudicate disputes, and to order the poster to remove the hate speech and compensate victims identified in the hate speech up to $20,000.

And, through amendments to laws regarding the mandatory reporting of internet child "pornography," as it's stated, the government wants to change the rules around reporting of child sexual exploitation material in ways that officials said will better equip law enforcement to do its job, such as extending the preservation period for data related to an offence.

Broadly, while the bill does not come with new powers for law enforcement, government officials indicated that new provisions requiring platforms to retain harmful content and allow law enforcement to access it if it is deemed relevant to investigations, will assist in prosecution.

Political, stakeholder reaction

This is not the first time the Liberals have tried to advance legislation to this effect. After experts panned the first proposal as flawed and risked unintended consequences, Prime Minister Justin Trudeau promised to move on a "balanced and targeted" online harms bill within 100 days of the 2021 election.

It instead took years of going back to the drawing board, heavily consulting experts and marginalized groups, for the government to reshape its plans in a way that centres protecting children in an effort to dispel concerns about censorship.

In announcing the bill, Virani was joined by key stakeholders, including the victims, and families of victims, of harmful and exploitative online content, who shared their candid and emotional first-hand experiences.

Separately, speaking to CTV News, Carol Todd — the mother of Amanda Todd, who died by suicide in 2012 after being targeted by online sextortion and documenting her experience online — implored MPs to pass the "much needed" bill.

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Until recently, this file was in the hands of successive heritage ministers who handled a pair of previous online regulation bills for streaming and news content.

Last week, Virani was sworn-in as a special "Minister of State (Online Harms)," specifically to allow for the departmental experts at Canadian Heritage that have been working on this bill for years to be available to the justice minister as the bill winds its way through Parliament.

"This is very important legislation," Government House Leader Steven MacKinnon said Monday. "The government has worked on it for a long, long time."

The decision to move this long-overdue election pledge to the justice minister's desk comes as the Liberals are bracing for a political battle with the Conservatives, whose leader, Pierre Poilievre, called the bill, before reading it, an "attack on freedom of expression."

The New Democrats have come out in early support of Bill C-63, albeit hundreds of days delayed, though NDP House Leader Peter Julian cautioned that his party will likely seek amendments to enhance algorithm transparency.

"The important thing is all members of Parliament have to be working to get to the bottom of all aspects of the bill," he said. "This bill is too important to be playing around with. We need to make sure that we are getting to the heart of the issue, that we're improving the legislation, and getting it out of the House and into the Senate in the course of the next few months."