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    • Clock ticking on promised but 'problematic' online harms bill. Will the Liberals reverse course?

    Canadian Heritage Minister Pablo Rodriguez responds to a question during a news conference, Tuesday, October 26, 2021 in Ottawa. THE CANADIAN PRESS/Adrian Wyld Canadian Heritage Minister Pablo Rodriguez responds to a question during a news conference, Tuesday, October 26, 2021 in Ottawa. THE CANADIAN PRESS/Adrian Wyld
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    OTTAWA -

    Returning to the job as Canada鈥檚 minister of heritage, Pablo Rodriguez is already facing questions about how he is going to stickhandle proposed sweeping new legislative and regulatory changes aimed at tamping down hate speech online, with the clock ticking on a self-imposed deadline and a barrage of stakeholders calling for the government to go back to the drawing board.

    The proposed changes would force social media companies to be more accountable for, and transparent about, how they handle five kinds of harmful content on their platforms: hate speech, child exploitation, the sharing of non-consensual images, incitements to violence, and terrorism.

    From accusations from the Official Opposition that the online harms bill will be 鈥渨orse than Bill C-10鈥 -- the Liberals鈥 contentious changes to the Broadcasting Act aimed at web giants and regulating Canadian content -- to stakeholders raising red flags about the consultation process undertaken this summer, the minister has a lot to contend with, and a short time to do so.

    In the party鈥檚 campaign platform, the Liberals committed to bring forward the legislation 鈥渨ithin its first 100 days,鈥 stating that the changes 鈥渨ould make sure that social media platforms and other online services are held accountable for the content that they host.鈥

    Asked on Tuesday after being sworn in as the Canadian heritage minister鈥攁 title he previously held between July 2018 and November 2019鈥 Rodriguez was asked about the criticisms of the government鈥檚 proposal and whether he鈥檚 prepared to rework the approach before legislation is tabled.

    鈥淚鈥檒l be consulting, that鈥檚 for sure,鈥 he said.

    WHAT THE LIBERALS PROPOSED

    Two weeks before Prime Minister Justin Trudeau called the 2021 federal election, the government presented and rolled out a summer-long consultation process on a proposed legislative framework, promising that the responses received would inform the new laws and regulations.

    Their proposal includes implementing a 24-hour takedown requirement for content deemed harmful, as well as creating federal powers to block online platforms that repeatedly refuse to take down harmful content.

    In addition to new takedown and blocking powers, the proposal outlines potential new ways for CSIS and RCMP to play a role when it comes to combating online threats to national security and child exploitation content.

    These aims would target what the government is calling 鈥渙nline communication service providers,鈥 such as Facebook, YouTube, Twitter, Instagram, TikTok, and Pornhub. The government said the aim of the legislation would be on public content posted to these platforms and not private communications like emails, text messages, or WhatsApp messages.

    The sites may also be obliged, in certain circumstances, to preserve content and identifying information for potential future legal action. They could also have new options to alert authorities to potentially illegal content and content of national security concern if an imminent risk of harm is suspected.

    The proposal would also compel platforms to provide data on their algorithms and other systems that scour for and flag potentially harmful content, provide a rationale for when action is taken on flagged posts, and would install a new system for Canadians to appeal platform鈥檚 decisions around content moderation.

    The new regime comes with a series of proposed and severe new sanctions for companies deemed to be repeatedly non-compliant. These consequences would include fines of up to five per cent of the company鈥檚 annual global revenue or $25 million, whichever is higher.

    In order to operate and adjudicate this new system, the government is looking to create a new 鈥淒igital Safety Commission of Canada鈥 that would be able to issue binding decisions for platforms to remove harmful content, ordering them to remove content when they 鈥済et it wrong.鈥

    STAKEHOLDERS' RED FLAGS

    When the summer consultation period ended on Sept. 25, stakeholders came forward with a range of concerns about the proposal, and the consultation process itself.

    While the government has not made public the submissions received, Michael Geist, a University of Ottawa law professor and the Canada Research Chair in internet and e-commerce law, offered by a range of interest groups, including the Canadian Civil Liberties Association, Open Media, and the Canadian Coalition for the Rights of Children.

    In his own submission, Geist highlighted several 鈥渟erious concerns,鈥 including that the proposed approach 鈥渄oes not strike an appropriate balance between addressing online harms and safeguarding freedom of expression,鈥 and questioned why the range of harms from hate speech to child sexual exploitation material are being treated as equivalent rather than having nuanced applications for each issue.

    As well, he questioned the government pointing to other country鈥檚 approaches like those in France, Germany, and Australia that have been met with similar pushback internationally, and said the investigative powers

    Authors of The Women鈥檚 Legal Education and Action Fund Moira Aikenhead, Suzie Dunn, and Rosel Kim wrote that while they would be supportive of a framework to address technology-facilitated gender based violence, but it cannot support this online harms proposal as drafted. That鈥檚 because, in their view, it 鈥減oses serious concerns from a substantive equality and human rights perspective and risks exacerbating existing inequalities.鈥

    In its at the Munk School of Global Affairs also flagged a series of concerns, including with the proposal to grant CSIS new warranting power, saying the implications of this could be 鈥渆xtremely problematic.鈥

    Ultimately, the group concluded the government needs to go back to the drawing board as the consultation was 鈥渕assively inadequate.鈥

    鈥淚 don't think it's possible within 100 days to achieve the kinds of objectives that the government seems to have set out for itself in these consultation documents,鈥 said Lex Gill, one of the authors of the Citizen Lab submission in an interview with CTVNews.ca.

    鈥淎n online harm is not a legal thing鈥 That鈥檚 a concept that the government has come up with, to justify bundling all of these different issues together,鈥 she said.

    Gill said that if the government鈥檚 aim is to protect vulnerable groups online, the government鈥檚 proposals 鈥渞adically fail to achieve that objective,鈥 in part because the kind of algorithmic or machine-learning technology that is used to filter for harmful online content have been found to have disproportionate impacts on marginalized groups.

    鈥淲e can't have a meaningful, thoughtful, constructive public conversation when the thing that unites all of these different kinds of content is just the remedy of removal, and not the nature of the harm itself鈥 Reasonable people are going to disagree from one type of content to the other,鈥 Gill said.

    She said that while it鈥檚 one thing to have advocates and 鈥渃onstitutional nerds鈥 raising alarms: 鈥淚f and when ordinary people in Canada become aware of the full scope of what the government is proposing鈥 I think the government is going to really have a hard time holding position out as legitimate or democratically justifiable.鈥

    Ahead of the swearing-in of the new cabinet, Department of Canadian Heritage spokesperson Daniel Savoie told CTVNews.ca in a statement that the department was 鈥渞eviewing submissions鈥 and that it will be 鈥渦p to the government to determine next steps.鈥

    WHAT HAPPENS TO BROADCASTING BILL?

    Already the Official Opposition are laying the groundwork for a fight on this new bill, telling supporters recently in a fundraising email that the new 鈥渃ensorship bill is worse than Bill C-10.鈥 They are framing the yet-to-be-tabled legislation as a 鈥渕ore extreme and far-reaching鈥 attempt to 鈥渃ensor the internet and restrict your free speech.鈥

    Throughout the legislative fight over the Broadcasting Act updates labelled in the last session as Bill C-10, the Liberals, and at times other parties, pushed back on the Conservatives鈥 framing of the bill as an issue of free speech as oversimplified and disingenuous.

    Could Parliament be in for round two?

    While the legislation stalled out in the Senate at the end of the last session, with Senators refusing to fast-track it given the concerns raised, the Liberal Party also promised in its

    In the last Parliament the legislation faced considerable public backlash stemming in part from then-minister Steven Guilbeault鈥 s mixed messaging when it comes to regulating user-generated content. Should the Liberals re-table the bill, it鈥檚 possible it could come with amendments to address some of the lingering concerns.

    As it was drafted, the government was seeking to make changes aimed at ensuring major social media platforms and streaming services such as Netflix, Instagram, TikTok, YouTube, and Spotify promote and pay their fair share towards Canadian artists and are held to similar standards as regular broadcasters.

    Asked this week whether a re-work of C-10 is also on his agenda, Rodriguez said he鈥檚 looking into it but made no commitment one way or the other.

    鈥淲e promised to bring some bills very quickly. C-10 is one of them. Why? Because it's fundamental,鈥 Rodriguez said, going on to speak about his past work on the file and in his view, good relations with stakeholders.

    鈥淚'm going to be consulting but the basis for the bill has to be to make sure that those web giants--they contribute to our culture like our own companies do and that's fundamental鈥攂ut at the same time, as I said before, freedom of speech is fundamental too.鈥

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