The Online Harms Act: A Grave Threat to Free Expression and Digital Freedom in Canada
The proposed Online Harms Act (Bill C-63) currently before the Canadian Parliament represents a meaningful and concerning overreach of government power, posing a direct threat to essential freedoms of speech and expression for all Canadians. As President of the Justice Center for Constitutional Freedoms (JCCF), we have meticulously analyzed this legislation and believe it warrants the deepest scrutiny and robust opposition. this article details the Act’s problematic provisions, potential consequences, and why it demands immediate attention from every citizen concerned about the future of digital freedom in Canada.
A New Era of Censorship and Penalties: The Canadian Human Rights Tribunal’s Expanded Powers
At the heart of our concerns lies the unprecedented expansion of power granted to the Canadian Human Rights Tribunal (CHRT). If enacted, the Online Harms Act will empower the CHRT to levy fines of up to $50,000 for alleged “speech crimes” committed online. Furthermore, individuals found liable could be ordered to pay up to $20,000 to the person claiming to be a victim of the speech.
This system is deeply flawed. Critically, complaints can be filed anonymously, effectively denying the accused the fundamental right to confront their accuser – a cornerstone of natural justice. The Act’s scope is also alarmingly broad, allowing for complaints regarding online content, regardless of its age. Past expressions, even those made years ago, could be resurrected and subjected to this new regulatory regime.
The chilling effect this will have on Canadians is undeniable. Fear of financial penalties and reputational damage will inevitably lead to widespread self-censorship, stifling legitimate debate and hindering the free exchange of ideas – the very lifeblood of a healthy democracy.
The Digital Safety Commission: An Unaccountable Bureaucracy with Sweeping Powers
Adding to these concerns is the creation of a new Digital Safety Commission (DSC). This body, envisioned as the primary enforcer of the Online Harms Act, will wield astonishingly broad powers over online content and the platforms that host it.The DSC will be staffed by a new layer of bureaucrats, operating with minimal oversight and possibly significant influence over what Canadians can access and say online.
The DSC’s powers include:
Content Inaccessibility: The ability to make online content unavailable to Canadians.
Warrantless Investigations: The power to investigate social media platforms without obtaining a warrant. Mandatory Codes of Conduct: Imposing codes of conduct on platforms, dictating acceptable online behavior.
Secret Hearings: Conducting hearings behind closed doors, lacking openness and public accountability.
Website Shutdowns: The authority to shut down websites deemed non-compliant.
License Revocation: Revoking licenses of platforms operating in Canada.
Billion-Dollar Fines: Imposing fines of up to six percent of a platform’s global revenue – a figure that could be astronomical for major social media companies.
Crucially, the DSC will operate outside the traditional rules of evidence, and its regulations will not require parliamentary approval.This lack of accountability is deeply troubling.
The Risk of Platform Exodus and Increased Censorship
The financial penalties associated with the Online Harms Act are so severe that many social media platforms may choose to cease operations in canada altogether, mirroring Meta’s recent response to the Online News Act. Those platforms that remain will likely adopt a strategy of preemptive censorship, removing content at the slightest perceived risk of violating the Act, effectively becoming extensions of the DSC and further eroding free expression.
Furthermore, the DSC is granted the power to enter any premises “where they have reasonable grounds to believe” information relevant to compliance exists - without a warrant*. This represents a significant intrusion into privacy and property rights. The Act also compels platforms to share user data with external researchers, raising serious privacy and security concerns.
The Problem of defining ”Hate” and the Erosion of Judicial Precedent
The Act relies heavily on the concept of “hate speech,” a term notoriously difficult to define with precision. Even former Supreme Court of Canada Justice Beverley McLachlin acknowledged the challenges in establishing a clear and stable definition. Entrusting unaccountable bureaucrats with the power to enforce a subjective and ”fuzzy” definition of ”hate” opens the door to arbitrary enforcement, potential abuses, and the unjust penalization of Canadians for expressing legitimate, albeit controversial, opinions. The risk of fines and even imprisonment for those deemed to have engaged in “hate speech” is a very real and frightening prospect