The detailed plans for a Canadian law that regulates hate speech online are seen as a ‘good start’ by Jewish groups

Jewish groups and others concerned about the rise of hate speech online welcomed the introduction of a new government bill on Feb. 26.

And while the parliamentary process for it to become law is only beginning, it’s a good start according to advocacy groups who have called for the government to regulate certain types of harmful online content.

Bill C-63, the Online Harms Act, tabled by Minister of Justice and Attorney General Arif Virani lays out a range of measures focused on ensuring large digital platform providers are accountable for and responsive to remove harmful content published on their platforms and services.

The bill focuses on reducing exposure to seven key categories of harmful content, including content that incites violent extremism or terrorism, incites violence, or foments hatred.

Changes to the Criminal Code and the Human Rights Act include the creation of a new standalone hate crime offence, punishable by up to a life sentence in prison, and a new peace bond aimed at preventing a likely act of hate speech from taking place.

The legislation would also add a definition of “hatred” to section 319 of the Criminal Code “with decisions of the Supreme Court of Canada to help people understand what hatred means and what it does not mean,” according to a document outlining the bill released by the Department of Justice and Canadian Heritage.

The legislation establishes that social media, live streaming, and user-uploaded adult websites are subject to three key duties: they must act responsibly, make certain content inaccessible, and are charged with a special duty to protect children. Critically, the Online Harms Act would also establish a new regulating body, a proposed digital safety commission of three to five commissioners, along with an ombudsperson to advocate on behalf of users.

Bernie Farber, most recently the founding chair of the Canadian Anti-Hate Network—who was part of the task force that consulted on what the legislation should include—says the bill offers new protections that Jews and other communities affected by hate will be glad to see.

“It’s great for the Jews, and for every other marginalized community out there,” he told The CJN in an interview. “This is a first real good tool that we have to create offensive protection for us.”

The bill as introduced is something that Jewish community advocates can work with, according to Richard Marceau, vice-president, external affairs and general counsel for the Centre for Israel and Jewish Affairs (CIJA).

Marceau appeared alongside Virani at a press conference following the introduction of the bill on Feb. 26. He says the legislation could not come at a better time and is beginning to address the online hate CIJA has been concerned about for several years.

“We know for a fact that what happens online doesn’t stay online,” Marceau said in an interview. “There’s a lot of antisemitism, online… any way that that we can lower the level of Jew hatred online that is constitutional is a win for the Jewish community.”

He says that there are elements of the bill where CIJA would hope for potential revisions. 

“I want more explanation of what the minister considers the duty to act responsibly that is imposed on the platforms,” he said.

Marceau also asks how the legislation will fit into Canada’s larger anti-racism strategy, which recognizes the International Holocaust Remembrance Alliance’s definition of antisemitism.

For content that sexually victimizes a child or revictimizes a survivor, or intimate content communicated without consent (“revenge porn”)—the bill says users can flag the content directly with the online service and file a complaint to the digital safety commission. The commission and the online service would screen for frivolous complaints, to ensure those specific types of content are removed within 24 hours.

While the hate speech and incitement content categories aren’t included among the content that online services must “expeditiously” remove, one of the key mechanisms introduced in the legislation is a proposed increase in the number of ways users can report harmful content.

Marceau says that he’d also like to see some revisions around removal of content that rises to the level of hatred.

“When something rises to the level of hatred, why it wouldn’t be taken down like if it’s child pornography or the exchange of intimate images without consent? There’s an obligation to take [those kinds of content] down within a certain amount of time. It’s not the same thing for hateful comments.  I would need some more clarity from the minister on that point.”

In announcing the bill, Virani mentioned the need to ensure the new digital safety measures do not impact Canadians’ Charter-protected rights to freedom of speech. Thus, he told reporters, some of the “awful but lawful” speech would not necessarily be removed if it does not rise to the specific level of detestation and vilification of a particular group.

“That’s an important point. One of the things we said from the beginning… this legislation touches on the issue of freedom of expression, and whatever legislation is adopted needs to be constitutional,” Marceau said.  

“The balance to strike here is that the bar is high enough that freedom of expression is protected, and, yes, that includes awful stuff. And on the other hand, when it rises to the level of hatred as defined by the Supreme Court in 2013, it is caught by the legislation,” he said.

“It is impossible to take out every disgusting thing [said] about Jews… It’s an uneasy balance. I think that the bill, by adopting the definition of hatred, strikes the balance that will make it useful and at the same time, constitutional.”

He says CIJA is reviewing the bill and will make recommendations for improvements the organization would like to see.

“It’s a good starting point, and that to me is the bottom line,” said Marceau.

He noted that in terms of the process of the bill’s passage, the Liberal minority government, even with its supply-and-confidence agreement with the NDP, is not as stable as a majority government.

“I’m hoping that that the bill will go through the House fairly quickly, certainly for the in-depth study committee. I hope that the second reading happens very, very quickly. I would really like before the next election that something concrete is in Canada’s books to combat antisemitism online, because the levels of antisemitism [are] indeed terrifying, and a lot of it is fed by what people see online,” said Marceau.

The bill comes after months of consultations following a series of promises made during the 2021 federal election campaign that the government would address Canadians’ concerns about the lack of regulation online.

Michael Geist, a professor at the University of Ottawa and the Canada Research Chair in Internet and E-Commerce Law, says the bill places the focus on the platforms to take responsibility and act to remove harmful content.

In an interview with The CJN, he says the bill addresses some of the longstanding concerns Canadians have expressed about transparency and the failure of social media platforms to act and take down harmful content. 

The inclusion of Criminal Code and Human Rights Act provisions, he says, is a holdover from a previous bill, C-36, which had attempted to address some of the hate speech concerns online, but which died when the 2021 federal election was called.

The law “doesn’t require takedowns of hateful content” the same way as with sensitive materials involving children, he says, because the definitions are not always as clear. In addition, he says, the sweeping powers with which the government seems to be charging the digital safety commission need to be defined and made clear, and rules established around gathering evidence. He also says the commission may need to include more than five people, the current projected maximum.

“[The bill does] a decent job of identifying specific harms,” he said. And there’s a clear duty for digital platforms to act to remove content that incites violence or foments hatred in the legislation.

“Platforms will have to establish their plan,” says Geist, referring to a provision in the bill that says online service must publish digital safety plans to show measures they take to reduce exposure to harmful content.

Geist posted that the bill’s much needed provisions around harmful content do carry some risks around “enforcement, the Criminal Code provisions, and expansion of Human Rights Act complaints,” he also flags the potential for overreach, pointing to a need for more safeguards for the public around the proposed digital safety commission and its legal powers.

The next election, in 2025, Geist points out, is not a long time away, and among his comments and concerns about Bill C-63 are that fine tuning the bill could jeopardize its passage in the House of Commons.

“There’s a risk it doesn’t happen,” said Geist, on the potential delays the bill may face through political battles. Conservative Leader Pierre Poilievre, and others in the party had slammed the proposed legislation even before it was introduced on Feb. 26.

Liberal MP Anthony Housefather, in a statement to The CJN, said he will review the bill as a member of the parliamentary Justice and Human Rights Committee.

“My goal would be to find a consensus on the bill within the Canadian public and with all parties and it was disappointing to have the Conservatives reject the bill before even seeing it,” he wrote.

“This has been a big priority for the organizations representing the Canadian Jewish community and for me. It reflects the work of the task force in that we are using legislative power to regulate providers (following in the path of the E.U., U.K. and Australia) since we have not obtained voluntary compliance but are also seeking to work with them.”

Housefather co-chairs the Inter-Parliamentary Task Force to Combat Online Antisemitism, which includes current and former members of government from Canada, the United States, New Zealand, South Africa, Israel and the European Union. Housefather says that task force, which is separate from the one that included Farber and consulted on what the government bill should include, would continue “discussions with the platforms on transparency and algorithms” and “discussions on what an international regulatory standard could and should be” as key standards are developed. 

“In my view I think this bill offers a good start but is restrained and very much limits things like takedown obligations to ensure a careful balance exists and free speech is protected,” wrote Housefather. “I look forward to further improving the bill at committee.”