On February 26, 2024, the Government of Canada introduced Bill C-63, the Online Harms Act, with the purpose of promoting the online safety of persons in Canada.

Bill C-63 would enact the Online Harms Act, and make amendments to the Criminal Code, the Canadian Human Rights Act and An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. 

Bill C-63 follows the first legislative attempt to address online harms when Bill C-36 was tabled in 2021. Bill C-36 died on the order paper in 2021 when Parliament was dissolved and an election was called. Following the 2021 general election, the government released a summary of its consultations on Bill C-36 and completed a series of further consultations with stakeholders that helped form the basis of the current Bill.

The Online Harms Act

Bill C-63 targets seven categories of "harmful content":

1.         Intimate content communicated without consent.

2.         Content that sexually victimizes a child or revictimizes a survivor.

3.         Content that induces a child to harm themselves.

4.         Content used to bully a child.

5.         Content that foments hatred.

6.         Content that incites violence.

7.         Content that incites violent extremism or terrorism.

The Online Harms Act, as currently proposed, would accomplish the following:  

  • Establishes a Digital Safety Commission of Canada:
    • The proposed Commission would be a five-member regulatory body meant to enforce the Act.
    • The Commission would have the power to issue guidelines and codes of conduct; make regulations; investigate public complaints that content on a regulated service is content that sexually victimizes a child or revictimizes a survivor or intimate content communicated without consent; and issue compliance orders.
    • The Bill also proposes the creation of a Digital Safety Ombudsperson and a Digital Safety Office, which would support the Commission and Ombudsperson.
  • Imposes on the operators of social media services a duty to act responsibly, a duty to protect children, a duty to make certain content inaccessible, and a duty to keep records.
  • Establishes an Administrative Monetary Penalties Regime for violations of the Act:  
    • The maximum penalty for a violation is not more than 6 per cent of the gross global revenue of the person that is believed to have committed the violation or $10 million, whichever is greater.
  • Establishes fines for offences under the Act:
    • The maximum penalty for an operator that commits an offence is:
      • On conviction on indictment: a fine not more than 8 per cent of the operator's gross global revenue or $25 million, whichever is greater.
      • On summary conviction: a fine of not more than 7 per cent of the operator's gross global revenue or $20 million, whichever is greater.
    • The maximum penalty for an individual who commits an offence is:  
      • For persons who are not individuals:
        • On conviction of indictment: a fine of not more than 3 per cent of the person's gross global revenue or $10 million, whichever is greater.
        • On summary conviction:  a fine of not more than 2 per cent of the person's gross global revenue or $5 million, whichever is greater.
      • For a person that is an individual:
        • On conviction of indictment: a fine at the discretion of the court.
        • On summary conviction: a fine more mot than $50,000.

Duties of regulated services

Regulated services under Bill C-63 include social media services, services with user-uploaded adult content, and live streaming services. There will be a threshold for applicability, which will be based on the number of Canadian users. The threshold would be set by regulation. Services that do not meet the threshold may also be designated by regulation. The Bill proposes four duties for regulated services:

1. A duty to act responsibly in respect of the services that they operate by taking steps such as:

  • Implementing adequate measures to mitigate the risk that users will be exposed to harmful content on the services and submitting digital safety plans to the Digital Safety Commission of Canada.  
  • Making user friendly guidelines that are accessible and easy to use and address a standard of conduct that applies to users with respect to harmful content and a description of the measures that the operator implements with respect to harmful content on the service.
  • Implementing tools and processes to enable a user to easily flag content as being a particular type of harmful content.  
  • Ensuring that a resource person is available to users to hear complaints.
  • Preserving certain content, including content that incites violence or content that incites violent extremism or terrorism, and destroy that content after an established period.

2. A duty to protect children in respect of the service that it operates by:

  • Integrating design features into their service that respect the protection of children, such as age appropriate design, that will be provided for in regulations.

3. A duty to make certain content inaccessible if the operator identifies on the service, content that sexually victimizes a child or revictimizes a survivor or intimate content communicated without consent by:

  • Making that content inaccessible to all persons in Canada in certain circumstances within a period of 24 hours, or a different length provided for by regulations, after the operator identifies the content.
  • Reviewing content flagged by users within a prescribed time.

4. A duty to keep records that are necessary to determine whether the operator is complying with the operator's duties under this Act.

Amendments to the Criminal Code

Bill C-63 would introduce amendments to the Criminal Code, including:

  • Measures to increase penalties for distributing hateful content online.
  • Increasing the penalty for advocating or prompting genocide to include life imprisonment.
  • Introducing a provision regarding offences motivated by hatred, which states that individuals who commit an offence under the Code that is motivated by hatred are guilty of an indicatable offence and liable to imprisonment for life.

It is important to note that hatred is defined as "the emotion that involves detestation or vilification and that is stronger than disdain or dislike" and that an act is not motivated by hatred solely because it discredits, humiliates, hurts or offends the victim.

Amendments to the Canadian Human Rights Act

The Bill proposes to amend the Canadian Human Rights Act by adding provisions to facilitate complaints to the Canadian Human Rights Commission regarding online hate speech.

A revised section 13 would establish the communication of hate speech by means of Internet or any other means of telecommunication that is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination as a discriminatory practice, and clarifies what types of communications and speech would fall within this provision.

This would replace the previously repealed section 13 that established hate messages communicated telephonically or by a telecommunication undertaking as a discriminatory practice.

Amendments to an Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service

Bill C-63 would introduce a series of amendments to the Act including:

  • Broadening the scope of the Act to include all types of Internet service providers.
  • Increasing the prescribed length of time to preserve computer data to one year after a person  who provides an Internet Service to the public makes a notification that they believe their Internet Service is being used for or has been used to commit a child pornography offence.
  • Increasing the limitation period for prosecuting an offence under the Act from 2 years to 5 years.

Next steps

Bill C-63 was introduced and completed First Reading on February 26, 2024. While the timeline for the Bill is uncertain, Second Reading, during which Parliamentarians will have their first opportunity to speak on the Bill in the House of Commons, is expected to begin soon. Stay tuned as we continue monitoring the progress of this important Bill.  

To learn more about Bill C-63, please contact a member of our team.