A panel advising the federal government on reducing the spread of sexually exploitative and hateful material online has delivered its final report, but the number of points on which its expert members disagree shows the challenge of simply defining “online harms,” let alone trying to curb them.

The Liberal government convened the panel of experts in March after scrapping its first attempt at online-harms legislation in the face of scathing criticism at home and internationally. Critics, including some of the online platforms the bill was intended to regulate, warned of government overreach and potential censorship and the creation of a “surveillance state”—worries the panel itself reiterated, according to a 10-page summary of their findings the government made public Friday.  

Its 12 members, most of whom are academics, included Amarnath Amarasingam, a Queen’s University professor and expert on extremism; Emily Laidlaw, a University of Calgary professor with expertise in online privacy and cybersecurity law; and Bernie Farber, chair of the Canada Anti-Hate Network and former CEO of the Canadian Jewish Congress. 

The push to address online harms is one of several contentious Liberal measures to regulate the online world, along with bids to make tech companies pay news publishers, extend Canadian content rules to streaming platforms, impose a digital-services tax, rewrite the country’s privacy rules and review and update the country’s competition laws.

These efforts are chiefly intended to target Big Tech companies like Alphabet, owner of Google and YouTube, and Meta, which owns Facebook and Instagram. However, the panel’s experts agreed an online-harms law “should apply to a broad range of services operating online. The experts “stressed” any regulations should apply not to “an individual with a personal online blog, but rather a service that hosts several blogs,” the summary says. (The summary doesn’t reveal which members expressed which opinions.)

The panel told the government any new laws and regulations “should strive for meaningful improvement, not perfection” and “put equal emphasis on managing risk and protecting human rights,” asking of online services an awareness of the risks they create and a commitment to transparency and accountability.

But when it came to defining the problem, reaching consensus became more of a challenge. 

The experts “disagreed on the usefulness of the five categories of harmful content” that the Liberals included in their 2021 attempt at writing a law: “Hate speech, terrorist content, incitement to violence, child sexual exploitation, and the non-consensual sharing of intimate images.” 

And they disagreed on whether it would be more effective to identify specific kinds of content as harmful, or to define them “in a broader way, such as harm to a specific segment of the population, like children, seniors, or minority groups.” Some suggested a focus on the “likely effects” of a piece of content in question rather than a precise definition. Others argued the companies being regulated will need those precise definitions as they try to follow the rules. 

Some felt child sexual exploitation and terrorist-related content should be dealt with under separate legislation, while others felt using terms like “terrorism” risked singling out Islamic terrorism at the exclusion of other types of extremism. 

The panel also examined online disinformation as something that could fall under the definition of online harm, agreeing that while it “has serious immediate, medium-term, and long-term consequences,” they felt “extreme caution” about defining the term in legislation, which would make the government the arbiter of what is and isn’t true. 

Nonetheless, some experts argued that some disinformation, including conspiracies, is “slow violence,” which can become dangerous over time. “They explained that on its own this type of content does not violate terms of service but that collectively, within a broader context, it can lead to violence by radicalizing or inciting hatred and even violence,” the summary reads.

The heritage ministry didn’t answer The Logic’s specific questions about the summary, instead emailing a statement attributable to Heritage Minister Pablo Rodriguez. “I thank the expert advisory group for their work. Their advice is very valuable as we take the next steps in addressing this complex issue. Freedom of expression is at the core of everything we do, and Canadians should be able to express themselves freely and openly without fear of harm online. Throughout the summer, we’re going to talk and listen to more Canadians. All this will inform our legislative and regulatory framework. We’re committed to getting this right and to engaging Canadians in a thorough, open, and transparent manner every step of the way,” the statement said.

The experts disagreed on whether future laws should encompass private communications, with some arguing they should be regulated so as to prevent the dissemination of child sexual abuse material. “Other experts emphasized concerns regarding user privacy rights in explaining why the regulation of private communication services would be difficult to justify from a Charter perspective,” the summary reads. 

They disagreed on whether a platform that hosts harmful content should face legal liability for it, along with the person who posted it, and whether it should be mandatory for platforms to report to law enforcement everything they flag. The broader these requirements, some argued, the more companies would be incentivized to use automated tools to monitor and report any potentially harmful material, compromising the privacy of their users. Some panelists worried the rules could disproportionately impact certain “historically marginalized communities.” 

There was consensus among the government’s experts that the regulator responsible for enforcing the new online-harms laws should have resources equal to the complicated task it would face, and have strong audit and enforcement powers, including the ability to impose fines.

They disagreed, though, on what role the companies most likely to be affected by the law should have in shaping the “codes of practice” that would outline the online industry’s responsibilities. Some experts argued the regulator should develop those guidelines in cooperation with industry representatives, community organizations and victim-advocacy groups. Others “highlighted the differing motives and interests of industry and expressed skepticism over having industry at the table for important decisions impacting safety given those differences and the power imbalance between victim-advocacy groups and industry.”

The panelists did agree on the need for platforms to have an internal process to review complaints about harmful content and a way to appeal its decisions, and that Canada should have an ombudsperson “independent from government, online services, and law enforcement” to support victims of online harms, and to help them seek action over harmful content. 

They disagreed on whether there should be some independent means through which users could ask for an external review of the platforms’ decisions about whether to remove content that could be considered harmful. While some experts pointed out that victims often feel the platforms ignore their complaints, others argued creating the process would be “a massive undertaking akin to creating an entirely new quasi-judicial system with major constitutional issues related to both federalism and Charter concerns.”

And while some argued for an independent body with the power to compel platforms to remove some content, the panel couldn’t agree on what the thresholds should be for a removal order, or even on whether such a body would be workable at all.

Finally, some members of the panel acknowledged what has been long clear to Big Tech platforms: policing the sheer volume of content will be a massive challenge. “​​Some experts voiced concern over the volume of content an independent body would have to deal with. They explained that the body would not be able to make decisions at a speed commensurate with the expectations of users. Other experts argued that the government cannot expect platforms to deal with high volumes of content while at the same time asserting that a regulator cannot address such a high volume,” the summary reads. 

The government will now have to sort through the panel’s recommendations, and the different perspectives represented in its disagreements, as it crafts its second attempt at legislation. Though the House of Commons is on summer break, Rodriguez said last month he wants to introduce the new bill “as soon as possible,” and that there would be more “engagement activities” over the summer in preparation for its tabling this fall.

Canada isn’t alone in its attempts to address online harms. The panel consulted last month with representatives from the United Kingdom, the European Union, and Australia, all of which are working on their own approaches to the issue. In the U.S., the White House launched its own expert panel on online harms about a week after its Canadian counterpart held its final meeting.