: Online harms act makes hate speech akin to murder
Promoting genocide would carry a maximum penalty of life in prison, but no one can agree on what genocide actually means
Published Feb 28, 2024 • Last updated 2 days ago • 4 minute read
When I was a kid, we used to say that, “Sticks and stones may break my bones but words will never hurt.” Nowadays, offensive speech is considered violence. Silence is violence. And those whose words are deemed by the state to be most egregious will be treated like serial killers.
“All of us expect to be safe in our homes, in our neighbourhoods and in our communities,” said Justice Minister Arif Virani, after tabling Bill C-63, the online harms act, in the House of Commons on Monday. “We should be able to expect the same kind of safety in our online communities.”
Except many Canadians don’t feel safe in their communities anymore. Last summer, Statistics Canada reported that the police-reported crime rate in 2022 had increased by five per cent compared to a year earlier. The homicide rate rose for the fourth consecutive year, reaching its highest level since 1992.
Rather than focusing on the type of crime that puts Canadians’ property and physical safety at risk — the “sticks and stones,” if you will — the government has chosen to focus on the words being transmitted to our smartphones and laptops.
To accomplish this, the Liberals propose burdening “social media” platforms with heavy-handed regulations; creating a giant censorship bureaucracy to force compliance; and re-empowering kangaroo courts to persecute people for thought crimes.
Bill C-63 establishes a new digital safety commission, digital safety ombudsperson and digital safety office (to assist the commission and ombudsman), which will be responsible for ensuring revenge porn and child pornography are taken offline within 24 hours. (Though child porn is already taken seriously by social media platforms and, if history is any indication, it won’t be long before the new bureaucracy’s mission expands).
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Websites will be responsible for ensuring they have tools that allow users to flag posts and systems in place to determine whether they meet the definition of “harmful content,” which includes “content that induces a child to harm themselves,” “content used to bully a child,” “content that foments hatred,” “content that incites violence” and “content that incites violent extremism or terrorism.”
While social media companies will be required to submit data on the volume of harmful content found on their sites to the new digital safety commission, enforcement will be punted to the courts and the human rights tribunal, where the penalties are much steeper than merely having a post arbitrarily deleted.
The bill would reinstate parts of Section 13 of the Canadian Human Rights Act, which will once again put decisions over what constitutes online hate speech in the hands of the quasi-judicial Canadian Human Rights Commission (HRC) and the Canadian Human Rights Tribunal.
It would also increase the penalty for anyone who “advocates or promotes genocide” to a maximum of life in prison — the same sentence, it should be noted, as was handed to Robert Pickton, one of Canada’s most prolific serial killers and rapists. And it specifically prohibits website operators from notifying users when they have been reported to law enforcement.
Although the Criminal Code uses the standard definition of genocide as “acts committed with intent to destroy in whole or in part any identifiable group,” there is no longer any consensus — within government or society — on what the term “genocide” actually means. This could have profound implications for how the online harms act is enforced.
Even the strict legal definition could be muddied by the fact that Trudeau accepted the conclusions of the National Inquiry into Missing and Murdered Indigenous Women and Girls, “including that what happened amounts to genocide” — even though what took place doesn’t meet the legal definition of genocide.
As law professor Bruno Gelinas-Faucher told The Canadian Press in 2021, “A court could say … that the state has accepted responsibility under international law for the crime of genocide” — which is “a big deal.”
Even though prosecuting and enforcing penalties for the crime of promoting genocide would be left to the courts, vindictive users looking to punish those whose views they disagree with will be empowered to flag content, which websites will then have a responsibility to investigate (and possibly incentivized to censor in order to look as though they’re complying with the spirit of the law), and to submit frivolous complaints with the Human Rights Commission.
Do we trust the ideologues working for the HRC or the left-wing activists churned out by universities and scooped up by tech companies to determine whether any given social media post or online video meets the strict legal definition of promoting genocide? How could we, given that the term has been so watered down, no one seems to agree on what it means anymore?
Since Hamas’s Oct. 7 massacre, Jews and other supporters of Israel have been claiming that protesters chanting “from the river to the sea” are advocating genocide because a Palestinian state from the Jordan River to the Mediterranean would necessitate the destruction of the Jewish state. On the other side are people who erroneously claim that Israel is committing a genocide in Gaza and that anyone who supports its war against Hamas is therefore advocating genocide.
I’ll let you decide which group is more likely to end up on the wrong side of Trudeau’s new censorship regime.