A Reminder That the Online Harms Proposal is Still Waiting in the Wings

With Bill C-11 and Bill C-18 passed and the damaging effects beginning to be felt, the Online Harms proposal is still a threat.

We already have the expected results of the Online News Act (Bill C-18) which is the collapse of the news sector’s presence on Meta platforms. There is also the ongoing consultation process going on at the CRTC which is expected to take years before the effects of the Online Streaming Act (formerly Bill C-11) can be felt (and, no, they won’t be good).

You might well and truly be tempted to think that this is the end or that the worst of this has already been realized. Depending on what the Liberal Party does, these are likely thoughts that aren’t accurate. In fact, if the third prong to the war on the open internet actually comes to fruition, it’ll make the previous two bills seem like small irritants by comparison. This is known as the Online Harms bill. I like to call this the Online Harms proposal because it isn’t yet a bill and has not been tabled yet.

Despite not yet being a bill, we actually happen to know quite a lot about the forthcoming bill. This is thanks to the “consultation” the government had. In that consultation, the government basically gave an outline to the legislation and described what they expect to do with it. Afterwards, the government expected the public to just agree so they could tick that box of the process. The response was overwhelming – overwhelmingly negative, that is. Numerous experts, human rights organizations, anti-hate groups, and more condemned the legislation as being harmful to the causes they support or know a lot about.

So, what is the short answer to what the Online Harms proposal, anyway? Simply put, it’s basically the government preparing to hit the internet with a sort of digital nuclear strike, wiping out almost everything – all this under the guise of tackling “harmful content” such as hate speech and harassment. Keep in mind that tweaks to the legislation can occur as we are still in the very early stages of this legislation. Things can change (though given what we’ve seen with Bill C-11 and Bill C-18, that doesn’t appear likely). The last time we checked in with this legislation, there were several planned provisions that are, indeed, worrying.

First and foremost, the legislation plans to require websites to implement a government approved system for combating harmful content. The government envisions a flagging system where any anonymous can report something that is “harmful”. So far, not so bad, right? Well, the kicker here is that the websites are required to respond within 24 hours. Failure to do so would mean that the website is on the hook for $10 million fines or three percent of annual turnover, whichever is greater.

The next question is, what is “harmful content”? There is, of course, the obvious stuff that is already illegal such as CSAM. However, the proposal takes things a considerable step further by allowing any anonymous user to determine this. If any user thinks that the content in question is “harmful”, it is harmful, no questions asked. So, for example, if someone likes me publishes a legal analysis on something like Bill C-11, and, someone from the government decides that my analysis is “harmful” because they feel it is “disinformation”, then it is “harmful” and must be taken down. Given the long history of the government saying that critics of both Bill C-11 and Bill C-18 are just ‘pushing disinformation’, the government is not shy about designating such criticisms as disinformation, however valid they may be.

This leads to another logical question: is there a threshold for which websites must implement such a system? To put it another way, what if you are a small website that only gets, say, a few hundred pageviews per day? The simple answer is, for the time being, there is no threshold. If you are a small website operating in Canada that showcases information about Pokemon, some random troll can flag something as harmful with the hopes of saddling that website with a $10 million fine, taking it offline.

What’s more, there is no limits to how many complaints a website can receive. This opens Canadian websites up for a variation of a Distributed Denial of Service (DDOS) attack. Anonymous users could theoretically flood a website with thousands of complaints and a website operator would have no hope in getting to every single one of them within 24 hours. The website operator could very easily be forced into permanent indebtedness for the rest of their life while the website gets taken offline.

All of this is really bad news for anyone in Canada trying to start a business online because this makes it all but impossible to do so.

For users, however, the situation isn’t any better. The natural response for users is to simply start using websites that are not located in Canada. Online Harms wouldn’t necessarily apply to those websites in question, so they can continue to enjoying the world wide web, right? Not quite.

The proposal envisions an expectation for all international websites to abide by these laws. Some of you might be thinking that this is laughable thanks to all the efforts to apply the US DMCA to websites all over the world like The Pirate Bay. The problem is that if a website fails to abide by this, the government would then have the ability to order Canadian ISP’s block that website entirely. Experts do agree that outright blocking a website because someone posted a comment that uses a racial slur is excessive and unjustified.

So, that leads to the users needing to use a VPN or the TOR network so they can enjoy the uncensored internet again. While that may be a workable solution for users, the damage this causes to Canadian remaining competitive on the international stage is absolutely unthinkable. We already have damaging effects that are getting closer with the Online Streaming Act and the damaging effects of the Online News Act already taking hold, but this threatens to wipe everyone else out entirely.

I like to think that there is some wiggle room to carry on – even in a diminished state – after the full effects of the previous two bills have happened. The problem with the Online Harms proposal is, with what is known so far, that wiggle room simply doesn’t exist. If you run a website, an app, an e-store, or pretty much anything else, you simply do not survive.

The hope is that considerable changes do occur with this by the time it is tabled. Even better, the hope is that this bill is either never tabled, or, tabled so late that it doesn’t pass before the next election. This means that the Canadian internet never experiences the thoroughness of how much everything gets wiped out thanks to this forthcoming bill.

Probably the worst thing about all of this is that this is all done under the name of fighting things like racism. Organizations have already pointed out that this will actually lead to the further oppression of minority groups because the proposal already envisions an increase in police surveillance. Such organizations know that there are considerable negative implications for minority groups thanks to this alone. So, it’s going to be infuriating when the government says that all those who are against this bill are just racists and bigots hoping to continue doing what they do because that is the exact spin we pretty much expect from the government when they try to silence criticisms of this legislation.

What’s more, free speech is a major casualty in all of this. When I look at what this proposal envisions, I don’t see how Freezenet survives. There’s no hunkering down and hoping the damaging effects pass over thanks to a legal technicality here (unlike with the Online News Act). As far as I’m concerned, Freezenet is finished if this bill becomes law and does exactly what the proposal says it would.

We don’t know when the bill is coming. We hope it never does (or, at the very least, gets sufficiently delayed). Otherwise, the government is going to have its chance to exact its revenge on the internet for the imminent failure of the Online News Act – and that reaction is going to be merciless.

Drew Wilson on Twitter: @icecube85 and Facebook.

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