Josh Dehaas: Online harms bills are a free speech nightmare

Several pieces of imminent legislation are further examples of this government's tendency toward overreach.

Apr 05, 2022

By: Josh Dehaas

Russia’s attack on Ukraine has revealed hard truths. Germany is too reliant on Russian gas. Canada needs to beef up its military. Wars still happen in Europe.

It’s also revealed that propaganda still works. When ABC News reporter James Longman visited a town outside of Moscow, he was amazed at what he heard.

“Everyone I spoke to in this town told me about their love of Ukraine. How it was for their benefit that Russia had gone in. How they needed to be saved from Nazis and fascists. This wasn’t idle repetition of government propaganda: they truly believe it,” he tweeted.

That’s because Vladimir Putin has a firm grip on Russian media, strengthened recently by new legislation that threatens up to 15 years in prison for reporting fake news.

Justin Trudeau is certainly not Vladimir Putin. Comparisons of our prime minister to a dictator are self-evidently ridiculous. But the Russian example is still a case study in the harms of governments having too much power over the flow of information and ideas in a society. Trudeau is no dictator but he does helm a government in which overreach is becoming a frequent and habitual complaint. And one such area in which this government’s more illiberal tendencies are beginning to show is in the realm of media regulation. Despite pushback from groups like the Canadian Constitution Foundation and the Canadian Civil Liberties Association, the Trudeau government seems determined to press ahead with laws to control what you read, write, watch and hear online.

The Liberals have long promised three bills aimed at countering three ostensible problems with online speech. The first bill aims to correct the problem of too few people choosing CanCon, by manipulating what you watch and listen to on platforms like Netflix and Spotify. The second bill would address the problem of advertisers ditching legacy newspapers for Facebook and Google. (Apparently the $600 million bailout was not enough.) The third bill, aimed at so-called “online harms,” would try to prevent people from saying hateful things to each other on social media.

This “online harms” bill is the scariest. Recently rebranded as the “online safety” bill, it’s apparently getting an overhaul from an expert panel and will be re-tabled in a few months. Let’s hope it never comes back. A version tabled last year, Bill C-36, would have created a tribunal wherein people found guilty of “online hate speech” could have been forced to pay up to $20,000 to their accusers, plus up to $50,000 in fines. In some cases, the accusers would be allowed to remain anonymous. Unlike the rarely used hate speech provisions in the Criminal Code, the tribunal would have only needed to find that the speech was hateful on a balance of probabilities, as opposed to the higher standard of beyond a reasonable doubt.

Even more ominously, C-36 would have allowed judges presented with “reasonable grounds” that a person might commit “an offence motivated by bias, prejudice or hate” in the future to threaten the would-be hater with up to 12 months in prison.

I don’t deny that hate speech can lead to harm. But do we really want government and judges deciding what crosses the line? One person’s hateful tweet is another person’s harsh but valuable contribution. Think J.K. Rowling. Think Dave Chapelle. Or think of the University of Toronto student who wrote recently that it was hateful for a professor to show an unflattering cartoon about Iranian Supreme Leader Ali Khamenei, a man whose theocracy executes people for being gay.

Proponents of the bill will tell you that it only applies to the most extreme forms of vilification, but at the end of the day it means government-appointees deciding who gets to say what in an environment that financially incentivizes the aggrieved. People will self-censor even more than they already do.

The second bill, which would require Internet giants like Google and Facebook to prop up legacy newspapers, is expected to be tabled today. It’s a threat to free speech in the more modest sense that it could cause some news organizations to keep their criticism of the government to a minimum.

The third proposal, encapsulated in Bill C-10 before it died last summer, has been resurrected as Bill C-11. It’s a free-speech nightmare that would empower the CRTC to make sure that what you see and hear online aligns with government priorities. By definition, that means content producers who don’t align with those priorities will be suppressed.

Astonishingly, the bill would give CRTC mandarins the power to order anything they “consider appropriate” to implement the policy. Individuals who don’t comply would face penalties of up to $25,000 for the first offence and up to $50,000 for subsequent violations. Offside corporations would face up to $10 million in fines on the first violation and $15 million subsequently.

What exactly is the policy? That’s a secret, but the bill offers some hints. It states that, in part, “broadcasters,” which now includes online content providers, must collectively serve, deep breath… “all Canadians — including Canadians from racialized communities and Canadians of diverse ethnocultural backgrounds, socio-economic statuses, abilities and disabilities, sexual orientations, gender identities and expressions, and ages, — and reflect their circumstances and aspirations, including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of Indigenous peoples within that society.”

The bill also says broadcasters should offer “employment opportunities” for the aforementioned “all Canadians.” As an “all Canadian,” I assume this means I’m entitled to a job in TV?

Helpfully, the Liberals have offered some suggestions in section 9.1(1) of the bill about what the CRTC might do with their new powers. Reading between the lines, the CRTC could:

Set a percentage of podcasts on Spotify produced by Canadians (think more Jesse Brown, less Joe Rogan);
Force Netflix to spend a certain percentage of your subscriber fees on French-language shows, and show them at the top of your feed;
Decide the balance of “genres” on Amazon Prime (perhaps fewer horror films and more ballets, lest you remain an uncivilized boor); and
Demand that Crave steer you towards Canadian content like Jann when all you want to do is find that damned Sex and the City reboot whose name escapes you.

Again, those are just suggestions. The CRTC would be able to do anything they “consider appropriate,” to implement the policy, whatever it ends up being. It’s not inconceivable that the CRTC could decide that the policy requires disabled YouTubers must be promoted over the non-disabled or that non-binary TikTokers need to show up more in your feed.

To be clear, these proposals aren’t aimed at creating some massive propaganda machine. The motivation is likely attracting the votes of those who stand to benefit financially from requirements that more CanCon, Francophone and Indigenous programming be produced; or in the case of the “online safety” bill, to attract votes from people legitimately worried about hate.

But these laws are still a threat. Giving regulators the power to decide which podcasters and TV writers are among the “all Canadians” whose voices deserve to be amplified could leave those disfavoured by the government screaming into the wind. Outlawing “harmful” speech would mean a small group of government appointees decides, at least to some degree, what we’re allowed to read, say, and think. That wouldn’t turn us into Russia overnight, but it would point us more in that direction.

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