Full Comment - The ‘Online Harms’ Act could censor Twitter, Netflix, and us

00:00:00.000 Ontario, the wait is over. The gold standard of online casinos has arrived. Golden Nugget

00:00:06.000 Online Casino is live, bringing Vegas-style excitement and a world-class gaming experience

00:00:11.040 right to your fingertips. Whether you're a seasoned player or just starting, signing up is fast and

00:00:16.680 simple. And in just a few clicks, you can have access to our exclusive library of the best slots

00:00:21.740 and top-tier table games. Make the most of your downtime with unbeatable promotions and jackpots

00:00:27.220 that can turn any mundane moment into a golden opportunity at Golden Nugget Online Casino.

00:00:32.820 Take a spin on the slots, challenge yourself at the tables, or join a live dealer game to feel the

00:00:37.920 thrill of real-time action, all from the comfort of your own devices. Why settle for less when you

00:00:43.140 can go for the gold at Golden Nugget Online Casino? Gambling problem? Call Connex Ontario,

00:00:49.320 1-866-531-2600. 19 and over, physically present in Ontario. Eligibility restrictions apply. See

00:00:56.340 goldennuggetcasino.com for details. Please play responsibly.

00:01:03.700 The Online Harms Act, also known as Bill C-63, it's the latest attempt by the Trudeau liberals to

00:01:09.760 try and deal with regulating the online world. Look, there's some good parts of this. Parts that

00:01:15.000 say they're going to deal with childhood online sexual exploitation. Nobody I know is in favor of

00:01:20.420 that. There are portions to deal with revenge porn. Well, again, I don't know anybody in favor of

00:01:25.880 revenge porn. But are there elements of the bill that go too far? Will they infringe on freedom of

00:01:30.820 expression? Will they lead to people abusing this for political means? Those are very real concerns.

00:01:37.580 Hello, welcome to the Full Comment Podcast. My name is Brian Lilly, your host. And this week,

00:01:42.060 we're going to take a deep dive into Bill C-63, the good, the bad, and the ugly. There's been a lot of

00:01:48.660 commentary that this is a bill that should actually be cut in two. The online harms portions, dealing

00:01:54.260 with children, revenge porn, etc., put into one. And then all the elements that deal with regulating

00:01:59.920 speech, hate speech, etc., even advocating genocide, should be a separate bill and get longer, deeper,

00:02:06.900 more thoughtful study. Is that the way to go? What are the portions that we need to worry about? Or do we

00:02:13.380 have some of them taken out of context? Ian Runkle is a lawyer in Edmonton, criminal defense lawyer. He

00:02:20.400 also has a very large following online with his YouTube channel, Runkle at the Bailey, where he

00:02:25.300 talks about legal issues, especially firearms, on a regular basis. We reached out to Ian to discuss this

00:02:31.800 issue and figure out what he sees as problems from a criminal defense point of view. Ian Runkle,

00:02:37.920 thanks for the time. Oh, thank you for having me. So let me ask you off the top about the online harms

00:02:44.000 bill. It seems to be two bills in one, in my view. You've got a whole area that's aimed at stopping

00:02:52.860 child sexual exploitation, revenge porn, things like that. And then you've got hate speech,

00:02:59.820 incitement to genocide, all these other things. Does this seem like they've kind of jammed a bunch of

00:03:05.060 things together that the only thing they have in common is that they might happen online?

00:03:11.440 This is really, I think, sort of an omnibus bill of all of the things that happen online that we don't

00:03:16.980 like, sort of wedged into one big thing. But it also will have some offline applications as well in

00:03:24.820 terms of things like the abilities to get peace bonds applied to people who they think might do

00:03:33.260 something, might do something, which can include things like house arrest. So those provisions,

00:03:40.480 it seems that they maybe should sever that off into a separate bill. But there's a lot of problems with

00:03:46.120 this because the government really has this big idea that they can sort of tame the internet. And

00:03:53.000 they're really bad at it.

00:03:54.640 I mean, tame the internet. I don't know what it's like in Edmonton, but we've had a dinner between

00:04:03.120 two G7 leaders shut down because of pro-Hamas terror groups taking over the event venue. We've had a

00:04:14.180 political fundraiser for local liberal constituency associations shut down because the same pro-Hamas 1.00

00:04:24.060 terror group show up and take over the restaurant in a very affluent, nice part of town. I'm not sure

00:04:30.120 that you can police the internet when you can't police the streets.

00:04:33.680 Well, a lot of the policing, they plan to push on to social media organizations. And the problem is

00:04:41.620 that in doing so, they're going to create tremendous costs for the social media organizations,

00:04:45.940 both in terms of their internal moderation and processes, but also in terms of potential liability

00:04:54.600 fines if they're within Canada, as well as the possibility of inspections. And so what we might

00:05:02.000 actually see is some of these companies fleeing Canada in order to take up residence elsewhere to

00:05:08.640 avoid these particular rules.

00:05:10.280 Okay, so let's get into that in a little bit, but let's go back to the first question that I asked

00:05:15.800 you, and you kind of hinted at it in the first answer. Should this bill be split? Because on the

00:05:23.120 question of sexual exploitation of children online, on the question of revenge porn, things like that,

00:05:29.240 I don't hear a lot of pushback. I don't hear a lot of, oh, no, no, no, we need to have that.

00:05:34.860 But there seems to be unanimous consent, unanimous viewpoint that these are things that we should

00:05:43.540 be looking after. And to me, it seems like if you had that as a separate bill, that would pass

00:05:49.580 very quickly versus all the other stuff that you and I are going to spend the next half hour or so

00:05:54.800 unpacking. So should this bill be split? It's certainly a good idea in terms of separating out,

00:06:01.620 for instance, the Criminal Code and Human Rights Act stuff. The one thing I will say is anytime the

00:06:08.000 government tells you we're here to protect the children, you should be very, very concerned,

00:06:12.500 because that's usually a sort of wrapper for very bad legislation. And I think that a lot of these

00:06:19.420 portions that may very well pass without too much criticism, simply because they say this is to

00:06:26.060 protect children, are actually quite, quite dangerous and quite charter infringing provisions.

00:06:33.560 So some of them may actually... The child exploitation things, you're worried that there are

00:06:37.640 child or there are charter violations within that. Absolutely. For instance, there's... Unpack that for me.

00:06:46.880 For instance, one of the things that is forbidden to or will be sort of forbidden is any sort of visual

00:06:54.080 representation that shows a child who's being subjected to cruel, inhuman, or degrading acts of physical

00:07:00.020 violence, which would include, for instance, the movie Carrie. This is... It's very difficult to craft these...

00:07:09.140 Okay, well, look, the movie Carrie, there's going to be an awful lot of people. I know the movie you're talking

00:07:15.260 about. I watched it as a kid in the 70s. There's going to be an awful lot of people who have no idea what we're

00:07:21.420 talking about. This is an old movie. It's an old movie, but... What is it about Carrie that would 0.99

00:07:27.940 trigger this? It's about a high school student who is very badly bullied by her peers, and it becomes

00:07:37.000 a horror movie because, you know, she's got magical powers, but it includes things like a scene, quite

00:07:42.940 famously, where they trick her into a situation where they can dump pig's blood on her specifically 0.86

00:07:49.360 for the purpose of degrading and humiliating her. There's a lot of, like, high school movies that

00:07:55.820 include these kinds of scenes of bullying and would be about children because it's high school

00:08:01.780 students. Yeah. And so you can say, like, it's really... We don't want to have videos of child abuse

00:08:08.100 out there, but there may actually... And the other thing is that there may be good reason to actually

00:08:14.260 show even those. Somebody who sees somebody abusing a child in, you know, in public may videotape that

00:08:22.320 and put it online in order to condemn that behavior and yet run afoul of this. So it becomes very difficult

00:08:30.300 to say where the line is. And when they're sort of painting these broad strokes, they're going to get a

00:08:37.940 lot of things wrong, and there's going to be a lot of situations where it may not be covered.

00:08:44.040 Perhaps more contemporary, South Park. Oh my God, they killed Kenny. Yes.

00:08:50.940 That's not allowed.

00:08:52.240 South Park runs afoul of Bill C-63.

00:08:55.880 Potentially. I mean, there's exceptions there in terms of whether or not it has sufficient artistic

00:09:01.020 merit, which when South Park came out was a hugely debated issue. I think that they've perhaps found

00:09:07.820 some social traction, but what happens with all of this?

00:09:12.520 I can see the argument for and against South Park having artistic merit. There are times when it,

00:09:18.960 you know, it cracks me up and times where I cringe. And I think most of us are like that. And so,

00:09:24.960 yeah, you could have that debate. You could have that argument. But depending on who's interpreting

00:09:29.780 the law, you're essentially saying, could result in, you know, unforeseen instances of people being

00:09:39.140 caught up in this.

00:09:40.480 Absolutely. And one of the things is that content that is actual, like, child sexual abuse material

00:09:47.760 is already one of the most vilified and illegal sorts of things you can find online.

00:09:53.700 provider, like social media and so forth, as a major category, polices the heck out of this

00:10:01.540 and watches for that kind of content on their media and actively reports it to police.

00:10:07.400 One thing that I hope they'll fix, because it's very concerning in this bill,

00:10:11.660 is that this could actually make it very difficult to prosecute people who are sharing some of that

00:10:18.100 content online. In what way? There's a provision that if content gets a notice, essentially somebody

00:10:28.000 says this content is objectionable, which hopefully somebody who saw that material would say this

00:10:33.360 content is objectionable. The provider is required to, within 24 hours, provide a notice to the person

00:10:42.140 who posted that content. And what are they going to do when they see, hey, your content,

00:10:47.940 was removed, we have noticed this, is they may start destroying evidence. The police will often

00:10:54.080 engage in lengthier sting operations where they're watching to see where this material goes, who's

00:11:02.060 sharing it, and then you'll see those big busts where they arrest, like, 100 people.

00:11:07.940 Okay.

00:11:08.360 What we may instead see is one person who gets a notice.

00:11:11.100 They're on the wayside because of these notices.

00:11:15.420 Somebody who gets one of these notices is very likely to just say, whoa, I need to expect a

00:11:21.160 police visit. And then burn the hard drives and get rid of everything.

00:11:27.280 Yeah. So, I mean, hopefully they'll put in some sort of exception of, like,

00:11:32.200 maybe we don't have to give people advance notice if they're sharing stuff that is that

00:11:38.340 kind of harmful. Because I'd much rather see those people face an actual, you know,

00:11:44.420 arrest and prosecution. It's absolutely, we should be taking that material down, but

00:11:49.440 prosecution's important. And if it can interfere with that, that's a problem.

00:11:54.260 You mentioned earlier that when people wrap themselves up in, we're protecting the children,

00:11:59.500 we should be worried. And it reminded me of, correct me if I've got the bill wrong, Ian.

00:12:08.480 Bill C-51, I think it was, in the Harper era. And there were a whole bunch of measures in that to

00:12:15.680 try and, you know, deal with different elements that they want to deal with. But I believe it was

00:12:21.280 then Justice Minister Vic Taves, or Public Safety Minister Vic Taves, saying, you're either with the

00:12:26.100 child, pornographers, or you're with us. And it was a horrible bill. There were horrible elements

00:12:31.640 to it. And, but he tried to wrap himself up in, I'm defending children, why aren't you? It is kind of

00:12:40.020 a thing that politicians will do. Politicians of all stripes, I'm not being partisan here, I'm picking

00:12:45.420 on Vic Taves, as well as worried about what the current government will do. Is this something that

00:12:52.240 that you worry about when you when you see those statements, when you see these bills that they're

00:12:57.660 just trying to hide other things? I mean, I'm sure that there is some motivation of, you know,

00:13:03.680 we've got to protect the kids. The problem is, is that almost, it's one of those things that's a real

00:13:08.920 red flag. Almost every time you see it, there's something in those bills that is really a problem.

00:13:14.180 And this bill has a lot of issues that, that may create real problems, where the various efforts to

00:13:23.200 regulate the internet that we're seeing, including ones that are supported by the Conservative Party

00:13:27.800 right now, the sort of porn ID law, are have a real possibility of sort of creating a balkanized

00:13:34.980 internet where Canada gets a lesser internet. Hold on, though, hold on. Pierre Polyev was asked,

00:13:41.900 do you think that people should have to verify their age? You know, that that's vastly different

00:13:48.420 than you've got to, you know, scan your driver's license when you're going on a porn site. It's

00:13:54.920 there's a whole lot of grades in there. And that was used by the Liberal Party just before they bring

00:14:00.820 out this law to attack him. I mean, there's politics on all sides on this. Oh, for sure.

00:14:06.200 Which kind of drives me nuts. It's like, we're going to stop the child pornographers, but don't

00:14:12.180 ask anybody their age if they're uploading or watching on Pornhub. Well, the concern there is

00:14:18.920 not just that it's don't ask anybody their age, it's got to be verified by some means. So it may

00:14:24.040 actually be that you have to post your ID, or have a picture taken of you for for various, you know,

00:14:31.780 there's technologies that purport to guess your age based on a picture. But that would also not

00:14:37.340 just cover it covers any site that has, you know, adult content on it, which isn't just Pornhub.

00:14:43.420 It's also Twitter and Reddit. And at that point, if you're needing to have an ID for everything you

00:14:50.320 do on places like Reddit and Twitter, then we've essentially created a digital ID, which is a real

00:14:56.460 problem, because that can very much suppress speech that might be legal, but controversial.

00:15:04.100 And that becomes, that's my concern is that it gets wrapped up as we need to protect children.

00:15:09.900 But it instead is something that affects, affects online discourse and speech, including

00:15:16.740 legitimate lawful speech. So that's, that's the concern. And there's plenty, I should note,

00:15:24.380 all of the concerns that apply to that bill are wrapped up in C63, in particular, because there's

00:15:31.640 a section, section 65. And it just says, it's under this category of duty to protect children.

00:15:38.280 It says design features, an operator must integrate into a regulated service that it operates any design

00:15:44.180 features respecting the protection of children, such as age appropriate design that are provided for

00:15:49.580 by regulations. Those regulations won't come to a vote, they can just be, it's like the order in

00:15:56.000 council to, you know, ban firearms and so forth, they can just be put forward with a stroke of a pen.

00:16:02.540 And they could say you must have this kind of age verification tomorrow. You know, assuming that

00:16:08.720 this law was in in place, they could just drop that down. And suddenly, all of these companies have

00:16:15.200 to adjust to that. They could, they could do worse than that. They could do more content.

00:16:20.300 I'm glad that you're raising that because an awful lot of people don't realize how much in legislation

00:16:25.580 is left to regulation. And regulation is not passed by parliament. It's not seen by parliament for the

00:16:32.500 most part. It is decided by bureaucrats after the fact. And what you just described is something that

00:16:38.060 would leave an awful lot of the, the details up to someone who is not elected, who we have no recourse

00:16:47.920 with, who has no accountability, and they're going to decide how the law is applied. Correct?

00:16:55.500 Absolutely. And typically what we see is a sort of ever expanding sphere of what they feel should be

00:17:01.900 their influence. Bureaucrats very rarely say, I should have less power and I should have less things

00:17:07.840 under me because the more things that they deal with, the more money and budget and so forth,

00:17:14.000 and the more important they, they get to be. And so we can, we can imagine that this is going to grow,

00:17:21.420 not shrink. So that's a very big concern to me. And I mean, I want to see a healthy Canada economically.

00:17:32.320 And one of the things that I think Canada does well is our sort of ground game on social media

00:17:39.480 and on this kind of content, but it will be very difficult for these companies to consider locating

00:17:47.780 themselves in Canada if they may have to completely change their system at the stroke of a pen by a

00:17:53.660 bureaucrat. Why would you want to subject yourself to that when it might be literally millions of

00:17:59.160 dollars in order to adjust these things? And then you might have to do it again in six months.

00:18:06.600 You know, I, I, I've talked to people who are either in these major tech companies or represent

00:18:13.000 them. And as you know, my industry, my company, they've had a lot of issues with big tech and the

00:18:20.580 whole argument over how many, what percentage of ad dollars go to Google and Facebook versus everyone

00:18:26.580 else. They're still major players and we're still partners with them. And they're part of the,

00:18:34.020 the internet economy, as you say. And yet this government keeps coming up with bills that make

00:18:39.400 it harder and harder for them to operate. And yet there are conversations about, should we leave?

00:18:46.020 Should, or should we withdraw certain services from Canada? Should we scale back in Canada? Which is

00:18:53.460 really bothersome when you think about how much all of us rely on, whether it's storage services,

00:19:03.160 email services, social media services, all of these things that are part of the economy that we

00:19:09.700 wouldn't have, wouldn't have thought of 15 or 20 years ago. They're there now. We're going to add

00:19:14.840 these regulations on, and that might lead to some of them saying, you know what? We don't need Canada

00:19:20.040 because they don't want us. And it's, it is a very real concern. And at those points,

00:19:26.660 we end up with situations where these companies do flee, and then we can't regulate them at all.

00:19:33.060 The other thing that we, that we may see with some of these bills is if you prevent people from doing

00:19:40.320 things legally, they may move things into, you know, there may be a growth in illegal distribution

00:19:46.600 channels, which have very few breaks. And so we may actually end up making our internet worse

00:19:53.760 by driving out the people who are sort of the good actors and only creating ones that have

00:19:59.860 no interest in following any laws whatsoever.

00:20:03.200 Essentially, you're talking about the dark web.

00:20:06.180 Those sorts of things. Like if we chase out, you know, pornography is controversial,

00:20:11.180 but we're not going to get it to go away. And so for instance, if we drive out companies that try

00:20:17.580 their best to make sure that things are not too toxic, what you'll instead see is a massive growth

00:20:24.880 of people seeking out that content on other sources, which may not follow rules at all. And that's going

00:20:32.680 to be a major, that's a major concern I have with some of these bills as well. Um, and when you look

00:20:41.260 at just the, uh, the legal exposure of operating in Canada, um, right now, I'm not sure what the global

00:20:47.920 revenue is for Twitter right now. I'm just looking, um, is it in millions? Uh, like if the, uh, sorry,

00:20:58.860 I'm not, I shouldn't be Googling right now, but it's eight percent, the fines allowed for penalties

00:21:03.740 are up to 8% of the operators close global revenue or 25 million. Yeah. Or 25 million, whichever is

00:21:12.180 greater. So if you're talking about a company like Facebook or, uh, Google, uh, Google's maximum fine

00:21:19.440 for violating this is a billion dollars. Yeah. If, if I'm Google, I'm starting to say, you know what?

00:21:28.080 Uh, I don't need to, uh, to sell Brian, who's Google drive account anymore. I don't need to sell

00:21:33.260 the storage and all the other services that various people buy. I'm going to, I'm going to

00:21:38.400 to camp. I'm going to leave. And so we may actually see measures to just say, listen,

00:21:43.600 um, I mean, as a market in terms of our money, Canada, isn't the big player. We're the,

00:21:49.920 we're basically the equivalent of the kid who goes to the grocery store once a week to buy a candy bar

00:21:54.340 out of his allowance. And so when we say, listen, if you want to play in our sandbox,

00:22:00.520 you have to follow all of these rules. They may say, we're just happy to block Canadians. 1.00

00:22:05.620 And if we start getting blocked off of things like Netflix or, you know, Reddit or, you know,

00:22:11.500 or Twitter, we end up with this world where as Canadians, we have a lot less access to the net.

00:22:18.040 And that's becoming a very real possibility. Some of these bills, uh, not C63, uh, C63 purports to

00:22:25.680 give orders to take specific content online, but you've also got C11, C18 and so on.

00:22:31.980 Yeah. And some of those include provisions to say that, uh, that websites have to be blocked if they

00:22:37.460 don't comply. Um, you know, if you don't have enough Canadian content and you're not willing to

00:22:42.860 play ball, then we can block you from, from Canada. And that's a problem. If you're looking

00:22:50.100 at things like, you know, uh, the BBC, we're never going to convince the BBC to put Canadian 1.00

00:22:56.920 content on because that's not what they do. They're the British Broadcasting Corporation.

00:23:01.760 Um, all of these are very, you know, serious concerns. And to sort of tie that back to bill C63,

00:23:08.940 when we start saying, listen, if you want to operate in Canada, we've got all of these rules

00:23:13.660 and, you know, billion dollar fines. It's easy to just say, you know what, we're going to decamp

00:23:21.360 Canada. You do what you want to do. We're just going to operate from, uh, yeah. Uh, Ian, we've got to

00:23:28.440 take a quick break right now, but when we come back, I want to get into the rest of bill C63, because

00:23:33.000 all of the issues around free speech, um, those are in the other part of the bill that we haven't

00:23:39.620 talked about yet. And I want to get your take on, uh, the dangers, whether there's anything

00:23:45.300 salvageable in that part of the bill, or do they need to go back to the drawing board more when we

00:23:50.120 come back. So we've talked about the issues surrounding things like the child exploitation,

00:23:54.880 the revenge, revenge porn side of things on bill C63, but there's a whole other element.

00:24:01.200 And this is the one that most critics are saying huge impact on freedom of expression,

00:24:07.400 freedom of speech. Um, also, uh, you know, let, let me start here. I wrote a column when

00:24:14.420 it first came out, my first read through. And of course, these are big bills and it takes

00:24:18.120 a few days to digest and really understand because what people don't understand when you

00:24:22.380 get a piece of legislation like this is folks like you and I have to spend our time going back

00:24:28.640 and forth between the existing law and what's there, because you'll get this section that says,

00:24:33.940 and we replace this section with this. And you're like, well, what did it say before? And you've got

00:24:37.960 to go back and forth and it's dizzying at times. And so it takes a long time for us to break it out.

00:24:44.380 But my first read on this was, this is not a serious bill for dealing with what are absolutely

00:24:52.500 issues that folks want dealt with. But when you have a bill that says you're going to get,

00:24:58.960 um, let me, and let me read this to you. I potentially up to life in jail for either

00:25:04.920 advocating genocide, or let me read this part. Everyone who commits an offense under this act

00:25:11.060 or any other act of parliament, if the commission of the offense is motivated by hatred based on race,

00:25:16.620 national or ethnic origin, language, color, religion, sex, age, mental or physical disability,

00:25:21.820 sexual orientation, or gender identity or expression, is guilty of an indictable offense 0.76

00:25:26.900 in liable to imprisonment for life. We don't put people in prison for life for murder.

00:25:33.480 Now, I think it's worth noting, well, nobody's actually going to get a life sentence for most of

00:25:38.820 these things, right? It's a maximum penalty. It's not going to be the average penalty. But it is going to

00:25:44.880 be very interesting, because some of this could cover some very minor offenses overall. One of the

00:25:51.640 offenses that people commit that might trigger this is mischief. Somebody spray paints on, you know,

00:26:00.540 a religious building, something hateful to that religion. Well, okay, that's, that's a detestable

00:26:09.800 crime. But it's, it's spray paint, right at the end of the day. And so it'll be like, okay, you're facing

00:26:15.620 months in prison as a maximum or up to life. But life because of what you spray painted. And

00:26:23.500 what that'll end up meaning is you might end up with a, you know, a jury trial over a spray painting,

00:26:31.220 because you're going to have certain rights. But also, any other act of parliament could be really,

00:26:37.460 really interesting. For instance, out on the East Coast, we're seeing disputes over fisheries.

00:26:44.120 And so if they say, well, you decided to fish lobster out of season, in order to, you know,

00:26:51.120 because you dislike these other groups, then now you're facing a life sentence. It's like,

00:26:57.340 what? And for people that don't follow this issue, I follow it on the, you know, just gently. You're

00:27:07.580 right. That could happen. Someone could say this is a hate crime.

00:27:11.700 Yeah. And I mean, the courts are usually reluctant to find something as a hate crime,

00:27:17.300 because a lot of the time when people say something is a hate crime, it's more somebody

00:27:22.120 with mental illness. But, you know, there is this real possibility that you'll get people

00:27:28.180 facing very, where the very serious charge is this enhancement. And the other thing that happens

00:27:34.860 is you get people who get into a dispute, and they get angry, and they say something offensive,

00:27:41.000 specifically to upset the person that they're angry with. And it might be something that they

00:27:46.260 wouldn't otherwise say, maybe they've been, maybe they've been punched a couple of times in the face

00:27:51.220 before they, they get to saying something like that. But now they've gone from like, we're having

00:27:57.160 a bar fight to, I'm on the hook for like, there's a maximum of life, even if they're not actually

00:28:03.900 likely to get a life sentence. And look, I'm not against tough sentences. I'm a tough sentence kind

00:28:10.380 of guy. It just seems like compared to where this current government is on other issues, getting rid of

00:28:19.560 a mandatory minimum for your third conviction of gun smuggling under C5, getting, you know, reducing

00:28:26.220 sentences for all kinds of other crimes. And then they come up with this. And I think there's four

00:28:31.580 instances where they've moved the maximum sentence up from two years to five years, to show that they're

00:28:37.540 really, really serious about this. To me, this side of the bill seems like it's performative,

00:28:45.020 that it is for show, rather than being a serious legal attempt to deal with real problems.

00:28:54.060 And I think that we're going to see a lot of situations where, I mean, nobody's actually going

00:28:58.760 to get life. It's the maximum on this. The minimum is nothing. But it's a straight indictable offense,

00:29:05.560 which means that they can't go by summary conviction. It cuts off certain options in terms

00:29:10.100 of sentencing. We've got summary convictions for terrorism offenses. You hide a terrorist,

00:29:16.740 you can get a summary conviction, which means if it isn't spelled out in the legislation, it's a

00:29:21.540 maximum of six months in court or in jail. Am I correct? I'd have to check. I sadly don't have

00:29:29.620 all of the sentencing memorized. I always check.

00:29:32.660 But if it isn't spelled out in legislation, a summary conviction, you're not going to jail for

00:29:37.840 more than six months, right? I think they upped it to 18.

00:29:41.200 Oh, does it? Okay. So, but yeah, it's like you've got summary convictions for things related to

00:29:45.800 terrorism, and you don't have summary convictions here. As you say, it could be spray paint.

00:29:50.640 Yes, but life? This may actually discourage the laying of these charges and sort of if I'm a

00:30:01.840 prosecutor, let's say you've got a guy who has spray painted his, you know, he spray painted a

00:30:06.900 shed somewhere and he basically says like, whatever. Now I'm considering whether I want to lay this

00:30:13.360 charge. Well, if I lay this charge, now this person, because they're liable to imprisonment for

00:30:18.880 life, has an entitlement to things like a jury trial. And do I really want to run that on

00:30:25.440 a shed spray painting? I might say, well, no, I don't. I'm going to just leave that out.

00:30:32.620 And so that also becomes a concern. The other thing...

00:30:36.500 And then people who are upset at the offense, and rightly so, say, well, why aren't you giving

00:30:42.460 them the full charges? And it's like, well, they lose faith in the justice system, because they

00:30:49.020 say, well, but you could be charging them with more, and you're not. So you're not taking this

00:30:53.860 seriously. And like, let's say it's a religious place of worship, as you were saying earlier.

00:30:59.700 Yeah. You know, if your church, your synagogue, your mosque is attacked, that is very personal,

00:31:07.300 is very visceral for you. And you're going to want someone to face full consequences. But because

00:31:14.840 this bill goes so far, you're saying there's a good chance prosecutors will just, meh, let's leave

00:31:21.160 that aside. And then you've got the public feeling like the prosecutors aren't taking it seriously.

00:31:27.560 And what they really ought to be doing on this, I think, is splitting it into, so, you know,

00:31:35.080 there should be a summary conviction option for this, for those situations that are less serious.

00:31:39.300 I can certainly see situations where it might be really, really serious. If you've got somebody,

00:31:45.480 you know, they've got the swastika tattoo on their forehead, they go to a synagogue,

00:31:51.220 they barricade the doors, and they set it on fire while everyone is inside. I mean, first of all,

00:31:56.900 they'd be looking at life imprisonment anyway. But I still think, you know, that's a situation where

00:32:03.560 you're like, okay, that's where we want to take it up to a life imprisonment maximum. But we don't

00:32:08.360 necessarily want to do this over somebody who, you know, at a bus stop, throws an empty coffee cup.

00:32:15.380 Like, is this really the same category? Do we need a life imprisonment, like maximum? Does it have to

00:32:21.780 be that indictable offense that triggers all of these protections? Or should maybe the Crown be able

00:32:27.180 to say, we're going to proceed summarily in this case, because, well, it might be, you know, might be

00:32:33.620 more serious. But we still don't need to, to go that far. You know, life doesn't have to be on the table

00:32:40.100 for this one.

00:32:40.820 I want to hear your thoughts on what some have, in my view, unfairly characterizes thought crimes.

00:32:48.580 Look, I don't like the portions of the bill related to the peace bond for fear of committing a hate

00:32:53.280 crime. Yeah. Not, not, not my favorite part of the bill. But it's not. First off, the Harper

00:33:02.380 government put this in, and maybe you would know if it's ever been challenged. The Harper government put

00:33:07.000 this in, in one of their last bills in 2015 for fear of committing terrorism. And it's still on the

00:33:15.560 books. So if it's been challenged, it hasn't been successfully challenged. But there is a requirement

00:33:21.960 that if you're going to try and have someone get a peace bond for fear that they will commit a hate

00:33:30.220 crime, you've got to get the attorney general involved. That's a pretty high bar. Yeah. Then you've

00:33:35.080 got to take it to a judge and present the evidence. That's a pretty high bar. There are at least checks

00:33:40.640 and balances on that, that there aren't in other provisions of this bill, like the section 13 that

00:33:46.540 we can get into in a moment. I still don't like it, but do you think that sort of thing would,

00:33:51.680 would face a challenge or would successfully survive a challenge? Has this sort of thing been

00:33:58.140 challenged before this fear of a crime? I mean, that, that just leaves me feeling uneasy that you're

00:34:03.260 going to get something for fear of a crime. The thing is, is that they have to actually bring

00:34:08.140 evidence to say that that fear is reasonable and is supported. So they can't simply, I don't think

00:34:14.180 that they'd be able to get this on the basis of you have posted online and you dislike a particular

00:34:20.520 group. It would have to be something a little more serious than that, because if they start using it to

00:34:25.360 just police speech, then they're going to run into serious charter issues. But we do actually have a

00:34:31.660 number of these provisions that allow for, for instance, a peace bond. If it looks like you're

00:34:36.800 going to get into a fight with somebody, you may never have done so, but they, they do sometimes

00:34:42.060 impose peace bonds, for instance, when like two neighbors can't get along and they keep getting

00:34:48.300 into situations, but they do need evidence for that. And I don't think we're going to see this used

00:34:54.460 a lot. I think we're, I suspect we'll see this used actually in situations where people have

00:35:00.520 already committed some sort of hate propaganda offense or hate crime, but it might be difficult

00:35:07.120 for them to lay out the full proof or where the circumstances might be such that.

00:35:12.380 So let me give you an example and tell me if I'm on the right track or wrong track. 0.97

00:35:17.700 Uh, I'm some yahoo, some jerk who every weekend goes out to a church, the synagogue, a mosque, 0.98

00:35:24.880 temple, what have you. And I'm always outside with the really nasty slogans. I'm screaming in 0.99

00:35:30.780 everyone's face every weekend. Could they eventually just say, you know what? We think he's going to

00:35:36.700 keep coming back. We need to do something. Is that where this provision would come in or,

00:35:41.960 or is it for something else?

00:35:43.480 Now, the thing is, they could probably already use provisions, like just the existing peace bond

00:35:49.680 provisions, depending on what it is that you're saying.

00:35:52.520 Which seems like is a real issue with this bill is that there's a lot of it where it's,

00:35:57.680 there's already provisions in the law.

00:36:00.580 Yeah. I mean, one of the things is that they could put like an electronic monitoring device on you,

00:36:04.740 which, um, that is concerning to me because those are actually incredibly expensive and you pay for

00:36:10.080 that if they impose it on you. Um, normally you see those on like bail conditions where somebody's

00:36:16.180 like, I will agree to pay for this because otherwise the alternative is that I will not be

00:36:21.520 let out. I'm concerned that they may put these conditions on people and then like we've imposed

00:36:27.560 it on you and you have to pay for it. That might be very concerning.

00:36:31.080 And so, um, so if you can't pay for it, you've got to stay in jail.

00:36:33.480 Well, they can't really jail you on this because it's a peace bond. It's just like,

00:36:38.880 are people going to end up with these debts that can then be enforced? I'm not sure how that's going

00:36:43.060 to end up working, but the standards for this, I think are going to actually be fairly high. It

00:36:48.400 has to be reasonable grounds for the fear. And usually where you like the main use that you

00:36:53.960 actually see a peace bonds is situations where somebody has already been charged with a criminal

00:36:58.920 offense and it gets sort of pled down, even though a peace bond isn't really a plea. So you'll see

00:37:05.080 situations where like two guys get into a bar fight and instead of saddling them with a criminal

00:37:10.220 record, they'll say, how about you guys, you know, how about you just go on a peace bond and stay away

00:37:15.840 from that dude? Maybe get some, uh, maybe get some treatment. You can't both be at Billy's bar on

00:37:21.320 Friday and you got to stay away from each other. Exactly. So here you may see situations where

00:37:27.060 somebody has already committed or likely committed a hate propaganda offense or a hate crime.

00:37:33.440 And instead of going through that full prosecution, you may see them imposing this as a, you know,

00:37:39.300 as a step down. And so it's like, rather than proceeding with charges, I think that'll be the

00:37:44.480 main use that you see for this is somebody who's already committed it. Ian, you are, are fairly, um,

00:37:51.040 robust in defending civil liberties. And you, you seem to be saying, uh, could be some problems with

00:37:58.000 this, but don't worry too much about this section. This isn't the part that actually worries me the

00:38:02.800 most. Um, things there's, it's largely the, the material about what they can take offline and what

00:38:11.460 they can, um, you know, one of the concerns I have is actually with the, uh, the intimate images,

00:38:18.120 the revenge porn aspect of things. And I think that that is way too broad. It's very, and I mean,

00:38:25.420 this is one of those things where everyone is like, you shouldn't be doing that. You shouldn't

00:38:29.240 be sharing. I don't know anyone in favor of revenge porn, except that you will actually,

00:38:35.980 if you frame the question, right, find everyone in favor of revenge porn. Okay. So what do you think

00:38:40.820 at the Sistine Chapel? Beautiful piece of art, beautiful piece of art. And it's actually revenge

00:38:48.720 porn, believe it or not, uh, at least portion of it. Uh, one of the Pope's sort of figures, uh, was

00:38:55.200 criticizing the painting of it because he felt that there were too many nudes on it. And so Michelangelo

00:39:01.160 as a bit of a sort of a, you know, take this, uh, amended one of the figures to put that guy's face on

00:39:08.840 it. And then depicted that person being bitten south of the equator by a snake. And that is,

00:39:17.000 that's permanently on there. It's a nude figure. Um, and that was specifically done as a screw this

00:39:24.220 guy. And it's one that now persists throughout history, but it's also a great work of art.

00:39:29.560 Is this going to be something that we go, and we know that this person gave no consent to this.

00:39:34.740 Um, there's actually a lengthy history of using nudity in political commentary,

00:39:41.580 depicting your political opponents as nude, um, typically in unflattering ways. Um, we've seen

00:39:48.780 this with Trump, for instance, there's lots of people who have depicted Trump, um, sort of in the

00:39:55.080 nude and sort of de-emphasize certain, uh, body parts. Well, Trump has not given his consent to that,

00:40:02.280 but it also is very broad. It is, if it is reasonable to suspect that the person had a

00:40:08.360 reasonable expectation of privacy and the person does not consent to the recording being communicated.

00:40:13.340 Well, reasonable to suspect is a very, very low standard. And it doesn't mean that there,

00:40:20.400 there's no sort of proof required. And so, for example, if there is, um, any artificially

00:40:27.280 created image that depicts somebody in the nude, how do you know, as if you're the provider, how do

00:40:34.300 you know who this person is? There's no requirement to track this person down. And so if it just,

00:40:40.060 if somebody creates an image of nobody who actually exists, it's just an image of a,

00:40:46.720 something that looks like a person, but it's not actually duplicating a person.

00:40:50.780 And with AI right now and the images coming out. Yep. Um, then the, they would have to take that

00:40:58.720 down, notwithstanding the fact that they, that there is no actual person who looks like that

00:41:03.940 because the, the organization doesn't know. They would say it's reasonable to suspect that this

00:41:08.900 is a person. And so we get into this real thing of policing content and all of this stuff, basically,

00:41:16.140 they have to respond within 24 hours when they get a notice. And so we may see a lot of, uh, a lot

00:41:23.000 of situations where people are flagging content and it has to be taken down because there's no way

00:41:28.920 that they can determine that it's not actually, you know, intimate content communicated without

00:41:33.880 consent. And that may also apply to things that are not even pornographic because if they have a 24

00:41:39.920 hour turnaround and they get something flagged, it may well be that the response is just to take

00:41:45.440 something down. So for instance, you have your podcast, somebody flags it as containing,

00:41:51.440 you know, whatever material it might have to be taken down offline until somebody looks at it and

00:41:57.920 they may not want to go through. Like if your podcast is an hour, they may say it's easier for

00:42:03.020 us to just take it down and never repost it rather than go through it. For me, as a content creator,

00:42:10.220 your first 24 hours up online, your first 48 hours up online, and you know, this from

00:42:16.320 your very popular YouTube channel, that's when you get most of your views, that's when you get most of

00:42:21.640 your clicks. And, and so if you get flagged, if you get essentially swatted and it's taken down,

00:42:29.220 you're not getting that back.

00:42:32.100 That's especially, you know, the graph is basically, it goes straight up and then plateaus

00:42:36.880 in terms of views. You get almost everything within that first 24, 48 hours. And if you have

00:42:42.700 a really good 24 to 48 hours, you can keep going, but if you don't, it's, it's just flat the whole

00:42:48.900 time. Yeah. Oh, absolutely. If you got, got hit in that time and especially you could also consider

00:42:54.920 what if you happen to get the big scoop? You've got, you've got the story. No one else has,

00:43:00.600 you know, you get a picture of a politician like breaking into his ex-wife's house, you know,

00:43:07.700 something stunning like that. Yeah. You posted online the pull, you know, the political party

00:43:14.300 that this targets might have an incentive to make a false report. It gets knocked down for 24 hours.

00:43:20.640 Everyone's talking about it, but you're not getting the, you know, you're not getting the traffic of

00:43:25.900 everyone wanting to come and see your pictures. And by the time you get it back online, those pictures

00:43:31.580 are probably now everywhere. And so they've managed to effectively punish you for getting this report

00:43:36.940 by preventing you from successfully monetizing it. And if you can't make money in this game, then

00:43:44.660 you're out of business. Well, you just keep doing that to, if there's a particular news organization

00:43:51.400 that is critical of a particular party, you just keep sniping them every time they try to make money

00:43:57.140 and pretty soon they go to business. The abuse potentials for this become very high. Huge. Let me

00:44:03.540 ask you about section 13 coming back. I was part of the campaign from about 05, 06 until 2011. I think

00:44:12.140 it was withdrawn to get rid of section 13. And for this to come back, it seems like the language is

00:44:22.560 trying to be a bit more nuanced. It's trying to have some parameters around it in ways that it didn't

00:44:29.660 before, but I'm still concerned about the human rights commission and the human rights tribunal

00:44:35.920 being able to find someone $20,000 based on an anonymous complaint of someone who may or may

00:44:42.120 not have been actually harmed by what was said or done. And then it becomes a money-making

00:44:49.800 opportunity for people. Like we were saying, instead of taking away the monetization ability

00:44:54.580 for a news organization, let's say, you're making it so that someone can make 20 grand a pop every

00:45:01.620 time they complain that Ian Runkle, well, he said something I don't agree with. Ian Runkle said

00:45:06.760 something that's against the human rights code. And I think we will, we'll, we've already seen

00:45:12.760 Jessica Yaniv, for instance, filed a bunch of complaints and has not had a whole lot of success 0.87

00:45:19.940 at the human rights tribunal, but has filed complaints that have been found to be unfounded.

00:45:26.280 And apparently for a sort of purposes of, it looks to me like money-making. And so if we see that kind

00:45:35.100 of practice going on, you may have bad actors who are just like, all right, let's go like sniping

00:45:41.760 these for profit. But you may also see a lot of reporting just as people saying, well, this is a

00:45:48.960 way to tie someone up. Um, I don't like the, I don't like what they're saying. I'll make a complaint.

00:45:55.640 Now they're tied up in this human rights tribunal stuff. It can become very difficult to be any sort

00:46:02.200 of political commentator at that point, if you're always getting tied up in it. I think back to Mark

00:46:08.380 Stein's famous, um, case with this, one of the complaints about it was he, and this is very timely

00:46:16.300 because we're, we're hitting the month of Ramadan and this joke only makes sense to you. And it's

00:46:22.240 only funny if you actually understand Islam and Ramadan. And one of Mark's comments was,

00:46:27.940 is it just me or does Ramadan come earlier every year? And of course it does because it comes around 0.99

00:46:34.560 every 11 and a half months. Yes, that's funny. But somebody said, no, that's an insult to Islam.

00:46:42.500 No, it's not. It comes around earlier every year. It's a calendar joke. Yes. And, uh, and he was tied

00:46:51.140 up with that for a very long time. Um, and that becomes expensive. And then you, you start self

00:46:59.040 censoring. We saw the case of the, uh, Quebecois comedian who made jokes about, um, a disabled child

00:47:07.120 singer who then ended up having to go to the Supreme court as to whether or not that was, um, that was

00:47:13.460 a violation. I'm sure that was a ton of money on the line for, for that process. Um, every time

00:47:23.000 somebody is controversial and I know that there's people who are going to say, oh, this just affects,

00:47:28.000 you know, the other people on the side of politics. So I don't care because it'll go after the people I

00:47:34.120 don't like. It will, I guarantee you be used against the side that you like as well. So if you

00:47:41.720 are a right winger, you know, think about what happens if somebody is critical of, you know, any

00:47:47.960 sort of sexuality, et cetera. If you're on the left, think about what happens when somebody posts

00:47:53.980 something, uh, in favor of, you know, diversity, equity, and inclusion sorts of things. All of these

00:48:01.460 things could be targeted under these provisions and tie people up. And we, we may end up with a

00:48:07.920 world where we just can't talk online without people sniping us into court. Apparently the human

00:48:15.580 rights tribunal, by the way, is already fully backed up without these provisions. Um, so all of this is

00:48:22.700 going to cost us a lot more because we're going to have to hire a lot more people to police everything

00:48:26.620 we're saying and doing and thinking. Um, in is this, I don't deny that either on the child

00:48:36.620 exploitation, the revenge born side, or on the other side, that there are serious issues here, but do

00:48:43.660 you get the sense that the government is trying to show that they take it very seriously by having very

00:48:51.580 serious sentences, very serious fines that they are using a sledgehammer to take on a fly when they

00:48:59.680 could have done this in a much more nuanced way, dealt with the issues that are bothering people

00:49:04.660 in a way that's charter compliant, that doesn't lead to the swatting, and that isn't just about

00:49:09.980 performance. I would love to see a much more nuanced, much more targeted bill. And there's no

00:49:18.060 reason why they can't approach this incrementally. They can say, listen, let's go after the most,

00:49:23.220 like the worst stuff that everyone agrees is bad. Uh, cause there are provisions in here that I think

00:49:29.420 are good and provisions that I think are well-intentioned that can be later cut, you know,

00:49:35.960 later fixed in ways that will make them good, but they just want to cover so much stuff that this ends up

00:49:43.500 including everything from really, really bad content to hurt feelings. And it's the hurt feelings

00:49:50.620 area that really can, you know, can cause huge problems and it can end up, the courts may end

00:49:57.680 up having to look at these provisions. And because they're so broad, it can be, listen, we have to throw

00:50:03.460 out the baby with the bathwater because you haven't given us any other choice. I, I think we do need some

00:50:11.060 additional provisions to deal with things like revenge porn and, you know, targeted deep fakes

00:50:17.160 and these kinds of things, but they have to be done carefully and they have to be done with nuance.

00:50:22.980 And I think this bill needed a lot more study than it got before it was brought forward again. So

00:50:29.420 I have real concerns. All right. Ian Runkle, thank you very much for your time today.

00:50:35.300 Thank you so much for having me. Let us know what you think. Are you concerned about portions

00:50:41.300 of this as the government hit the right spot? Do they need to have a bit more study? Do they need to

00:50:46.580 change this bill a little bit? Let us know what you think. Drop a comment, send us an email,

00:50:51.660 reach out and make sure of course that you're sharing this online. Full Comment is a post media

00:50:56.580 podcast. My name is Brian Lilly, your host. This episode was produced by Andre Pru with theme music

00:51:01.700 by Bryce Hall. Kevin Libin is the executive producer. You can listen to watch for comment on

00:51:07.860 YouTube, on Apple Podcasts, Google, Spotify, anywhere that you get your podcasts. We are there

00:51:13.900 and available. Listen through the app or Alexa enabled devices. And of course you can help us out

00:51:18.620 by leaving us a review, giving us a rating, and of course, tell your friends about us, share it on

00:51:23.760 social media where you can. Until next time. Thanks for listening. I'm Brian Lilly.

00:51:31.700 Thanks for listening.

Full Comment - March 11, 2024

The ‘Online Harms’ Act could censor Twitter, Netflix, and us

Episode Stats

Summary

Transcript