By Tim McSorley

Over the past two decades, many of us have come to rely on online platforms for basic necessities, communication, education and entertainment. Online, we see the good – access to otherwise hard to find information, connecting with loved ones – and the bad. It often combines the harms we know so well, including hate speech, racism, misogyny, homophobia, transphobia, the sexual exploitation of minors, bullying and incitement to violence, with new forms of harassment and abuse that can happen at a much larger scale, and with new ways to distribute harmful and illegal content.

Many social media sites have committed to addressing these harms. But business models that focus on engagement and retention – regardless of the content – have proven ineffective at doing so, with some studies showing that it is in their business interest to continue feeding the most controversial content. When these online platforms do remove content, researchers have documented that it is often those very communities that face harassment that face the most censorship. Governments around the world have also used the excuse of combating hate speech and online harms – such as “terrorist content” – to enact censorship and silence opponents, including human rights defenders.

The Canadian government had been promising to address this issue since 2019, framing it explicitly around fighting “online hate.” The government eventually released its proposal to tackle online harms in late July 2021, alongside a public consultation. There were immediate concerns with the consultation taking place in the dead of summer with an imminent election on the horizon. When the election was called a few weeks later, round tables with government officials who could answer questions about the proposal were canceled.

While the government’s approach was bad, the proposal itself was worse. As cyber policy researcher Daphne Keller described it, Canada’s original proposal was “like a list of the worst ideas around the world – the ones human rights groups… have been fighting in the EU, India, Australia, Singapore, Indonesia, and elsewhere.”

ICLMG’s central concern with the government’s approach has been around the inclusion of “terrorist content.” Since 2001, we have seen how the enforcement of anti-terrorism laws has led to the violation of human rights, especially because its definition can be twisted to suit political ends. Yet under the government’s initial proposal, social media companies would have been expected to identify “terrorist” content through mass surveillance, act on any content reported by users within 24 hours or face penalties up to millions of dollars, and required to automatically share information with law enforcement and national security agencies, both privatizing and expanding the surveillance and criminalization of internet users. The proposal even put forward new warrant powers for CSIS that would go far beyond addressing “online harms.” It was a recipe for racial and political profiling, particularly of Muslims, Indigenous people and other people of color, and for the violation of their rights and freedoms.

In February 2022, the Ministry of Heritage released a “What We Heard” report in which they recognized many of the valid concerns with the government’s approach. They announced a new consultation process led by an expert advisory group that would review these concerns and propose advice on what the government’s approach should be.

Various groups, including the ICLMG, continued working together to respond to the government’s proposals and to develop ideas on how best to fight online harms. We published op-eds and met with government officials and MPs. In March 2023, we helped draft a group position document on core guiding principles for any future legislation, including “red lines,” that was sent to the Minister of Heritage and shared with opposition critics.

Nearly two years after sharing its initial proposal, in late March 2024, the government introduced Bill C-63 to create the Online Harms Act. The bill has proven controversial in large part because it also seeks to amend the Criminal Code and the Canadian Human Rights Act in ways that raise civil liberties and human rights concerns.

Specifically in regards to online harms, though, the analysis and advocacy of the ICLMG and others has resulted in a much better bill than would have been expected in 2021. In particular:

• While still including seven different categories of harms, it no longer proposes a simple “one-size fits all” approach.
• There is no explicit requirement that would require platforms to monitor all content in order to identify and remove harmful posts.
• The main focus is on the regulation of platforms, in the form of obligations to create and follow online safety plans, and not on policing all users.
• Except for content that sexually victimizes a child, there is no requirement for mandatory reporting of content or users to the RCMP or CSIS.
• There are no proposals to create new CSIS warrant powers.
  There are greater rules around platform accountability, transparency and reporting.

However, there remain serious areas of concern:

• The proposed category of “content that incites violent extremism or terrorism” is, by its nature, overly broad and vague.
• Given there is a nearly identical, and more specific, harm of “content that incites violence,” a terrorism-focused harm is unnecessary and redundant.
• While not explicitly requiring platforms to proactively monitor content, it does not disallow such actions either.
• Platforms would be required to preserve data relating to posts alleged to incite violence, violent extremism or terrorism for one year, so that it is available to law enforcement if needed for an investigation.
• The proposed Digital Safety Commission, which would enforce the rules under the Online Harms Act, is granted incredibly broad powers with minimal oversight.
• A lack of clarity around hearings and investigations could allow for malicious accusations of posting “terrorist content,” and uncertainty around recourse for those whose content is erroneously taken down by platforms.

This is clearly a complex problem, and it is easier to point out flaws than to develop concrete solutions. What appears clear, though, is that empowering private online platforms to carry out greater surveillance and content removal not only fails to address the heart of the issue, but creates more harm. Instead, governments must invest in offline solutions combatting the roots of racism, misogyny, bigotry and hatred. Just as importantly, governments must address the business models of social media platforms that profit from surveillance and use content that causes outrage and division as a way to drive engagement and to retain audiences. So long as there is profit to be made from fuelling these harms, we will never truly address them.

Tim McSorley is the National Coordinator of the International Civil Liberties Monitoring Group

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Rally on Parliament Hill against Bill C-51. Credit: Obert Madondo

By Dominique Peschard

I have been assigned the formidable task of presenting 20 years of ICLMG work on anti-terrorism legislation in less than 1,000 words. It is impossible in such a short text to even simply enumerate all the interventions on a multitude of legislative pieces, so I will focus on some key interventions which illustrate the principles that have guided the work of the ICLMG throughout the years.

The first major intervention, which set the tone for all subsequent ICLMG positions, was the report, entitled “In the shadow of the law”, submitted by the ICLMG in March 2003 in response to Justice Canada’s first annual report on the application of the Anti‑terrorism Act (ATA), also known as Bill C-36. The report underlined a series of major concerns with the ‘War on Terror’ initiated after 9/11:

• The introduction of the new crime of terrorism in the Criminal Code. The ICLMG rightly pointed out that terrorist acts were already crimes and that the broad and imprecise definition of what constituted “terrorism, facilitating terrorism and financing terrorism” could target a series of activities of political dissent having nothing to do with terrorism.
• The use of the national security argument to deprive people of their freedoms and of the right to know the “evidence” held against them. Other articles in this publication provide several examples of the denial of the right to due process and a fair trial.
• The association of terrorism with Islam. This led to the racial profiling of an entire community.
• The surveillance powers granted to police and security agencies and the constitution of vast data banks with no possibility to correct errors.
• The information sharing agreements with the US with no control over what the information would be used for.
• The lack of control and accountability over the use of these new extraordinary powers.

The report concluded by emphasizing that security is not achieved by limiting freedoms; on the contrary, freedoms are what guarantees our security.

Later, during the 2006 parliamentary review of the ATA, the ICLMG played a crucial role in the final position adopted by the NDP and the Bloc Québécois, and was instrumental in the drafting of two minority reports tabled in Parliament by these opposition parties. The minority reports called for the repeal of the ATA.

A protracted struggle took place between 2006 and 2011 when a minority Conservative government tried to re- introduce the two clauses (investigative hearings and preventive detention) which had expired as a result of a sunset clause in the ATA. The campaign and lobbying of the opposition parties against the reintroduction of these clauses was successful… until the Conservatives won a majority in 2011.

The Conservative government used the pretext of the murders of two Canadian servicemen by two isolated individuals in the fall of 2014 to introduce and adopt Bill C-51, the Anti‑terrorism Act, 2015; the most important piece of anti-terrorism legislation since the 2001 ATA. Among other things, C-51 enacted a broad information-sharing regime between government departments, increased the time a person could be detained before appearing before a judge, and gave CSIS the power to commit covert illegal acts. The ICLMG played a very active role in a broad coalition of organizations opposed to C-51 which succeeded in raising awareness and mobilizing a significant part of the population against the bill.

Ottawa protest against Bill C-51. Credit: Communist Party of Canada

With the Liberals back in power in 2015, the ICLMG, along with several other organizations, undertook a campaign for the repeal of C-51. But the government ignored the numerous voices asking for the repeal, and chose instead to present and adopt yet another anti-terrorist piece of
legislation, Bill C-59, the National Security Act, 2017. Not only did C-59 not fix the problems posed by C-51, it raised more concerns, for example, granting the Communications Security Establishment – Canada’s NSA – the power to carry out defensive and offensive cyber activities at home and abroad. Nevertheless, C-59 was a partial victory. The ICLMG had campaigned relentlessly since 2006 for the implementation of a review mechanism for all national security bodies proposed by Justice O’Connor in his second report following the Commission of Inquiry Into the Actions of Canadian Officials in Relation to Maher Arar. The government finally responded to this demand by creating the National Security and Intelligence Review Agency.

Over the years, the ICLMG has systematically intervened before parliamentary committees to challenge legislative attacks on rights and freedoms and, more broadly, to inform MPs of the dangers of the measures they were asked to adopt. The ICLMG has also worked actively, alone and in coalitions, to keep the public informed on these issues. As a result, the public today is more critical and wary of new surveillance or security measures which infringe on civil liberties and human rights.

Dominique Peschard has been a co-chair of the ICLMG since 2012 and president of La Ligue des droits et libertés (LDL) from 2007 to 2015. He is currently a member of the LDL committee “Population surveillance, artificial intelligence and human rights.”

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