Canada introduces Bill C-63, the Online Harms Act

On February 26, 2024, the Government of Canada tabled Bill C-63. Bill C-63 introduced the Online Harms Act (“the Act”), in addition to making amendments to the Criminal Code, the Canadian Human Rights Act and An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. The Online Harms Act is a novel piece of legislation intended to promote the online safety of persons in Canada and hold social media platforms, adult content services and live streaming services accountable for addressing harmful content online.

The Online Harms Act

Bill C-63 targets seven categories of “harmful content”:

1. Intimate content communicated without consent.
2. Content that sexually victimizes a child or revictimizes a survivor.
3. Content that induces a child to harm themselves.
4. Content used to bully a child.
5. Content that foments hatred.
6. Content that incites violence.
7. Content that incites violent extremism or terrorism.

The Online Harms Act, as currently proposed, would accomplish the following:

Establish a Digital Safety Commission of Canada:

The proposed Commission would be a five-member regulatory body meant to enforce the Act. The Commission’s powers would include issuing guidelines and codes of conduct, making regulations, investigating complaints, and issuing compliance orders. The Bill also proposes the creation of a Digital Safety Ombudsperson and a Digital Safety Office, which would support the Commission and Ombudsperson.
Establish an Administrative Monetary Penalties Regime for violations of the Act:  
The maximum proposed penalty for a violation under the Online Harms Act is not more than 6 per cent of the gross global revenue of the person that is believed to have committed the violation or $10 million, whichever is greater.

Establish fines for offences under the Act:

Those who commit an offence under the Act can be fined. Fines for offences committed by an operator can be as high as 8 per cent of the operator’s gross global revenue or $25 million. Fines for offences committed by persons other than an operator can be as high as 3 per cent of the person’s gross global revenue or $10 million, for persons who are not individuals, and as high as $50,000 on summary conviction for a person that is an individual.
Impose duties on the operators of social media services :
Bill C-63 proposes specific duties for regulated services. Regulated services would include social media services, services with user-uploaded adult content, and live streaming services. Regulations under the proposed Online Harms Act would prescribe a threshold for duties to apply to a service provider, based on the  number of Canadian users of a regulated service. The regulations may also designate services that do not meet the threshold. The four duties proposed by the Bill are:

1. A duty to act responsibly in respect of the services that they operate

2. A duty to protect children in respect of the service that it operates.

3. A duty to make certain content inaccessible if the operator identifies on the service content that sexually victimizes a child or revictimizes a survivor or intimate content communicated without consent.

4. A duty to keep records that are necessary to determine whether the operator is complying with the operator’s duties under the Act.

Amendments to other Acts

Bill C-63 would introduce amendments to the following Acts:

• The Criminal Code: Bill C-63 proposes a provision regarding offences motivated by hatred, which states that individuals who commit an offence under the Code that is motivated by hatred are guilty of an indicatable offence and liable to imprisonment for life. The penalty for advocating for or prompting genocide would also be increased to include imprisonment for life.
• Hatred is defined as “the emotion that involves detestation or vilification and that is stronger than disdain or dislike”. An act is not motivated by hatred solely because it discredits, humiliates, hurts or offends the victim.
• The Canadian Human Rights Act: Bill C-63 proposes a mechanism to facilitate complaints to the Canadian Human Rights Commission regarding online hate speech.
• An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service: Bill C-63 proposes to broaden the scope of the Act to include all types of Internet Service Providers, strengthen record keeping requirements, and increase the limitation period for prosecuting an offence under the Act from 2 years to 5 years.

Next Steps

Bill C-63 must yet pass through several stages of the legislative process before it becomes law. The timeline for the Bill remains uncertain, as it was recently introduced and completed First Reading on February 26, 2024. The Bill must still complete two readings in the House of Commons before it is sent to the Canadian Senate for consideration.

Second Reading in the House of Commons, during which Parliamentarians will have their first opportunity to speak on the Bill in the House of Commons, is expected to begin soon.

Article provided by INPLP member: Wendy Wagner (Gowling WLG, Canada)

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