Government is seeking input on framework to make internet companies responsible for policing content available in Canada

Almost immediately before the 2021 general election was called, the federal Department of Heritage launched a consultation on a proposed framework to address “online harms” by the imposition of obligations on online communications service providers, creation of a new regulator in Ottawa and enormous penalties. The announcement was accompanied by a discussion guide and a technical paper, the latter of which fulsomely describes the proposed framework put forward by the government. In the subsequent campaign, the Liberal Party has indicated their intention of passing “online harms” legislation in their first 100 days if re-elected.

The framework is intended to address five categories of content that is largely illegal, but the proposed definitions go beyond what the courts have determined to be unlawful: (a) terrorist content; (b) content that incites violence; (c) hate speech; (d) non-consensual sharing of intimate images; and (e) child sexual exploitation content.

Highlights of the proposed framework include requiring online communications service providers to have a flagging mechanism for harmful content, with review and removal within 24 hours. It specifically calls for making the content inaccessible in Canada. The new regulator, the Digital Safety Commissioner, would have very broad powers of supervision and significant transparency obligations would be placed on the providers. An appeal mechanism would rest in a new Digital Recourse Council of Canada, with further appeals going to a new Personal Information and Data Protection Tribunal.

The proposal anticipates massive penalties for non-compliance in an amount up to 3% of a provider’s gross global revenue or up to ten million dollars ($10,000,000), whichever is higher.

While the framework is detailed, it anticipates significant provisions would be left to regulation either by the Digital Safety Commissioner or the Governor-in-Council, or both.

A number of experts, including Professors Michael Geist and Emily Laidlaw have been critical of the approach taken by the Department, and Daphne Keller of Stanford has said the proposal “disregard(s) international experience with past laws and similar proposals around the world, as well as recommendations from legal and human rights experts inside and outside of Canada.”

The consultation is open for comments until September 25, 2021.