Internet freedom in Canada remained robust during the coverage period. Internet access is reliable and affordable for a majority of the population, although rural areas are underserved by infrastructure and telecommunications services. Users in Canada enjoy strong protections for free expression and press freedom. However, state institutions continued to suffer cyberattacks during the reporting period.
Canada has a strong history of respect for political rights and civil liberties, though in recent years citizens have been concerned about the scope of government surveillance laws and privacy rights. While Indigenous peoples and other vulnerable populations still face discrimination and other economic, social, and political challenges, the federal government has acknowledged and made some moves to address these issues.
- In June 2020, internet service provider (ISP) Teksavvy appealed to a Federal Court, contesting a court order to block websites that sold copyright-infringing material. In May 2021, the federal court rejected Teksavvy’s appeal (see B1, B2, and B3).
- In March 2021, an Ontario Court ruled against certain provisions of the Election Modernization Act, which would have criminalized sharing false information about political candidates (see B5).
- In November 2020, parliament introduced bill C-11 to establish a Consumer Privacy Protection Act (CPPA). As outlined, the bill bolsters individual’s privacy rights, but also provides businesses with significant access to users’ personal data (see C5).
- In August 2020, officials in Ontario stopped sharing personal information related to COVID-19 with law enforcement, a measure that was adopted as a result of an emergency order in April 2020 (see C5).
|Do infrastructural limitations restrict access to the internet or the speed and quality of internet connections?||6.006 6.006|
Both fixed-line and mobile internet penetration rates have remained relatively steady in Canada. Mobile service providers continued to deploy a number of newer technologies to provide mobile broadband service, including Evolved High-Speed Packet Access (HSPA+) and long-term evolution (LTE), yet penetration rates for new technologies are steady, as Canada is close to its saturation point. However, small increases in LTE access have occurred in remote regions. According to 2020 data from the International Telecommunications Union (ITU), Canada has a 41.8 percent fixed broadband penetration rate and an 84.1 percent mobile broadband penetration rate.1
Broadband service of at least 5 Megabits per second (Mbps) is available to over 98 percent of Canadian households through a variety of fixed-line and wireless technologies, according to the regulatory body that oversees the communications industry, the Canadian Radio-television and Telecommunications Commission (CRTC).2 3 In 2019, the CRTC shifted its focus to “high-quality” internet service, defined as offering 50 Mbps download speeds, 10 Mbps upload speeds, and unlimited data transfers, with the goal of 90 percent household availability by 2021, and 100 percent availability by 2031,4 which is referred to as Canada’s “Universal Service Objective.”5 Canada is making progress on that front, moving from 85.7 percent in 2018 to 87.4 percent availability in 2019,6 the most recently available data.
In a landmark policy decision released in 2016,7 the CRTC recognized the importance of ultra-high-speed (50 Mbps download speeds and above) internet access for the future of the economy. That year, the CRTC set a universal access goal for all residential and business fixed-line customers to have access to download speeds of at least 50 Mbps without data caps. Furthermore, it declared high-speed internet access a “basic telecommunications service” and established a $750 million Canadian dollar ($578 million) fund to reach those targets.8 In September 2018, the CRTC announced criteria for the fund’s use.9 A second round of calls for project applications was opened in November 2019, 10 and the distribution of these funds began in early 2021.11
- 1International Telecommunications Union, “Statistics,” “Fixed Broadband subscriptions,” “Mobile Broadband Subscriptions,” accessed September 2021, https://www.itu.int/en/ITU-D/Statistics/Pages/stat/default.aspx.
- 2Canadian Radio-television and Telecommunications Commission, “Communications Monitoring Report 2020,” December 10, 2020, https://crtc.gc.ca/eng/publications/reports/policymonitoring/2020/index…; Statistics taken from “LTE and Broadband Availability” (Table 4.2 Broadband service availability, by speed and province/territory)” at https://crtc.gc.ca/eng/publications/reports/policyMonitoring/2020/cmr4….
- 3Ibid, see figure 9.22.
- 4Canadian Radio-television and Telecommunications Commission, “Departmental Plan 2019-2020,” April 2019, https://crtc.gc.ca/eng/publications/reports/dp2019/dp2019.htm.
- 5See “LTE and Broadband Availability,” supra note 1, at Table 4.1.
- 6Ibid, Infographic 4.3.
- 7CRTC Telecom Regulatory Policy 2016-496, “Modern telecommunications services – The path forward for Canada’s digital economy,” December 21, 2016, https://crtc.gc.ca/eng/archive/2016/2016-496.htm?_ga=1.48897774.9552385….
- 8“CRTC establishes fund to attain new high-speed Internet targets,” Government of Canada News Release, December 21, 2016, https://www.canada.ca/en/radio-television-telecommunications/news/2016/….
- 9Emily Jackson, “CRTC reveals criteria for $750M broadband fund for rural internet access,” The National Post, September 27, 2018, https://business.financialpost.com/telecom/crtc-reveals-criteria-for-75….
- 10CRTC Telecom Notice of Consultation CRTC 2019-372-2, April 27, 2020, https://crtc.gc.ca/eng/archive/2019/2019-372-2.htm.
- 11CRTC, “Broadband Fund – Projects selected for funding,” https://crtc.gc.ca/eng/internet/select.htm, updated to March 19, 2021.
|Is access to the internet prohibitively expensive or beyond the reach of certain segments of the population for geographical, social, or other reasons?||2.002 3.003|
Internet access is not prohibitively expensive or beyond the reach of most segments of the population, although a digital divide in terms of geography persists, and poorer people struggle to afford access. The government named universal access as the first of ten draft principles for a digitally connected Canada in its October 2019 Digital Charter.1
Mobile broadband data remains expensive compared to fixed-line broadband data. High-speed, fixed-line access remains affordable due to robust competition; prices became even more competitive in 2016 when the CRTC reduced the price of wholesale high-speed internet access.2 According to 2020 ITU data, a 5 Gigabyte (GB) fixed broadband connection costs 1.1 percent of Gross National income (GNI) per capita, while a 1.5 GB mobile broadband connection costs .7 percent GNI per capita.
Perhaps the most important obstacle to availability and ease of access is geography. Canada is overwhelmingly urban, with 81 percent of the population living in urban areas.3 Furthermore, approximately 75 percent of the population lives within 160 kilometers of the border with the United States.4 While providing “reliable and affordable telecommunications services of high quality” to rural areas is enshrined in law,5 affordable high-speed internet service is less available in more isolated areas, especially in the vast northern territories.
High-speed internet access is also more expensive in rural areas than in cities, and rural customers have fewer choices of internet service providers (ISPs) according to the CRTC’s 2020 figures.6 Major ISPs generally offer services with bandwidth caps, resulting in increased fees for users who exceed the limit. Such limits are much more restrictive for wireless connectivity than for wired connectivity, which further exacerbates the urban-rural divide in terms of cost.
According to the CRTC’s 2020 Communications Monitoring Report, household broadband service with speeds between 5 Mbps and 9.99 Mbps was available in 100 percent of urban areas, compared to 98.5 percent in rural areas (a small increase from the 98 percent rural rate the previous year). However, the 98 percent figure includes 7 percent of households where availability was only via wireless services, which are generally more expensive, especially as data usage rates increase.7 When considering the CRTC’s high-quality service definitions, the urban-rural divide is significantly more pronounced: 50 Mbps service is available to 98.6 percent of urban households, but only 45.6 percent of rural households.8
The government has generally taken a patchwork approach to improving connectivity in remote communities, indicating a lack of a strong overall strategy, though this may be changing. The 2019 budget took a more proactive approach than the previous year, with the government pledging to spend C$5 billion ($3.8 billion) to C$6 billion ($4.6 billion) to improve rural broadband services over 10 years.9 The 2020 budget was never presented due to the COVID-19 pandemic, with Canada’s first budget in two years presented in April 2021.10 The new budget included an additional C$1 billion ($770 million) that will in part go towards improving rural and remote broadband access.11
The urban-rural divide has only increased during the pandemic,12 and a proposed merger between two of Canada’s largest telecommunications companies is also expected to intensify the divide (see A4).13 However, the new budget, allocated C$2.75 billion ($2.12 billion) of the Universal Broadband Fund’s C$7.2 billion ($5.5 billion) to improve access in rural and remote communities.
There is also a significant access gap in terms of income: as of 2018, the penetration rate for home internet access for the highest income quartile was 99.6 percent, while the penetration rate for the lowest income quartile was only 80.9 percent.14
Internet connections are widely available in public spaces such as cafés, shopping malls, and libraries, generally free of charge. There is a wide range of content available in both official languages (English and French) as well as many other languages.
- 1“Canada’s Digital Charter in Action: A Plan by Canadians, for Canadians,” Innovation, Science and Economic Development Canada, October 23, 2019, https://www.ic.gc.ca/eic/site/062.nsf/eng/h_00109.html.
- 2Canadian Radio-television and Telecommunications Commission, Telecom Order CRTC 2016-396, October 6, 2016, https://crtc.gc.ca/eng/archive/2016/2016-396.htm.
- 3From the 2011 census. See Statistics Canada data at https://www12.statcan.gc.ca/census-recensement/index-eng.cfm, accessed March 20, 2017.
- 4National Geographic “Canada Facts,” accessed March 20, 2017, https://web.archive.org/web/20170606011821/http://travel.nationalgeogra….
- 5Telecommunications Act, S.C. 1993, c.38, section 7(b), https://laws-lois.justice.gc.ca/eng/acts/T-3.4/FullText.html.
- 6Canadian Radio-television and Telecommunications Commission, “Communications Monitoring Report 2020,” December 2020, “2019 Year-End Monthly Prices for Internet, Mobile, Landline and TV services,” https://crtc.gc.ca/eng/publications/reports/policyMonitoring/2020/cmr5….
- 7“LTE and Broadband Availability”, supra note 1 at Figure 4.8.
- 8“LTE and Broadband Availability”, supra note 1 at Infographic 4.4.
- 9Government of Canada (The Honourable William Francis Morneau, Finance Minister), “Budget 2019 – Investing in the Middle Class,” March 19, 2019, https://www.budget.gc.ca/2019/docs/plan/budget-2019-en.pdf; See also: Government of Canada, “Connecting Canadians,” Chapter 2, Part 3, https://www.budget.gc.ca/2019/docs/plan/chap-02-en.html#Access-to-High-….
- 10Government of Canada, “Budget 2021 - A Recovery Plan for Jobs, Growth, and Resilience,” April 19, 2021, available at https://www.budget.gc.ca/2021/home-accueil-en.html.
- 11David Paddon, “Ottawa adds $1B to broadband fund for rural, remote communities,” April 19, 2021, CTV News, https://www.ctvnews.ca/politics/ottawa-adds-1b-to-broadband-fund-for-ru….
- 12See e.g. Kirk Starrat, “Digital divide: Gap between Canada’s rural, urban internet speeds widens during COVID-19,” The Chronicle Herald, August 14, 2021, https://www.thechronicleherald.ca/news/provincial/digital-divide-gap-be….
- 13“Critics of Rogers-Shaw merger say government must mandate affordable internet in remote areas,” CBC News, March 21, 2021, https://www.cbc.ca/radio/checkup/are-you-satisfied-with-the-price-and-s….
- 14Statistics Canada, “Use of Internet services and technologies by age group and household income quartile,” Table 22-10-0113-01, accessed March 28, 2021, https://www150.statcan.gc.ca/t1/tbl1/en/cv.action?pid=2210011301&reques….
|Does the government exercise technical or legal control over internet infrastructure for the purposes of restricting connectivity?||6.006 6.006|
The government does not exercise technical or legal control over the internet infrastructure for censorship. Authorities do not restrict access to any social media platforms or communications apps.
The government has not centralized the telecommunications infrastructure. However, given the vertical integration of the marketplace, the infrastructure is controlled by a small number of companies, which could theoretically facilitate greater control of content and the implementation of surveillance technologies. In October 2018, the CRTC rejected a proposal to limit access to websites on the basis of copyright infringement (see B1), which would have been easily implemented considering the small number of ISPs in Canada.
|Are there legal, regulatory, or economic obstacles that restrict the diversity of service providers?||5.005 6.006|
There are some legal and economic obstacles that restrict the diversity of service providers, although the market remains relatively open. Specifically, the legal requirements for Canadian ownership of service providers, combined with the high costs of entry and infrastructure, has led to market concentration, especially for mobile service.
To operate as a Canadian telecommunications provider, a company must meet the requirements in Section 16 of the Telecommunications Act. The last available data showed that Canadian retail telecommunications revenue (comprised of wireline, wireless, internet, and data and private lines) totaled C$54.1 billion ($41.7 billion) in 2019, a 2 percent increase over the previous year.1 The five largest companies (Bell, Québecor, Rogers, Shaw, and TELUS) accounted for 87.3 percent of total revenue, virtually the same as the previous year.2
The telecommunications market in Canada threatens to become even more concentrated as regulators are currently evaluating a potential merger of two of the five largest companies, Rogers and Shaw.3 If approved, this will lead to less competition and higher prices for Canadians.4
The growth in the market for internet service outpaces that of the internet and communications technologies (ICT) market generally. According to the CRTC’s 2020 Communications Monitoring Report, revenue for the fixed retail internet services sector stood at C$12.8 billion ($9.9 billion) in 2019, a 9 percent increase over 2018.5
Canadians have a choice of wireless internet providers, all of which are privately owned. There are at least three providers to choose from in all markets, although providers vary region to region, some providers are restricted to urban areas, and the possible merger of Rogers and Shaw threatens such choice in many markets. Restrictions on foreign investment impose some limits, though a few foreign companies have entered the marketplace in recent years. The provision of access services is subject to regulation, with rules on tower sharing, domestic roaming agreements, and a consumer regulator to address consumer concerns.
Three mobile service providers dominate the market, with Bell, TELUS, and Rogers serving 90.2 percent of wireless subscribers.6 Their market share has remained relatively steady over the years. These companies are also leaders in the provision of fixed-line internet service (via phone lines or cable), along with Shaw, Cogeco, and Vidéotron, which is owned by Québecor. While Canadians generally enjoy a choice of fixed-line internet providers, the available choices vary from region to region, and the possible merger of Rogers and Shaw would limit consumers’ options in many markets. There is often only one choice per technology type, leading to a public perception that options are limited and prices are kept artificially high. This perception is not without merit, as Canada’s wireless prices continue to be rated amongst the highest in the world.7 However, in March 2020 the government took action, forcing the three largest wireless companies (Bell, TELUS, and Rogers) to lower their prices by 25 percent over the next two years.8
- 1Canadian Radio-television and Telecommunications Commission, Communications Monitoring Report 2020, “Highlights of the Telecommunications Sector,” https://crtc.gc.ca/eng/publications/reports/policyMonitoring/2020/cmr2…, Infographic 2.1
- 2Ibid, table 2.1.
- 3Dwayne Winseck, “Rogers’ bid for Shaw is bad news for competition in several media markets, and should be blocked,” The Toronto Star, March 19, 2021, https://www.thestar.com/opinion/contributors/2021/03/19/rogers-bid-for-….
- 4Michael Geist, “Higher Prices, Less Competition: Some Reflections on the Proposed Rogers – Shaw Merger,” March 16, 2021, https://www.michaelgeist.ca/2021/03/higher-prices-less-competition/.
- 5Supra note 29 (”Highlights of the Telecommunications Sector”) , Infographic 2.7.
- 6Ibid, Figure 2.12.
- 7Marc Montgomery, “Canada: where wireless is among the world’s most expensive,” Radio-Canada International, November 4, 2020, https://www.rcinet.ca/en/2020/11/04/canada-where-wireless-is-among-the-….
- 8David Thurton, “Liberals give big 3 wireless providers two years to cut prices by 25 per cent,” CBC News, March 5, 2020, https://www.cbc.ca/news/politics/wireless-cellphone-fees-1.5484080.
|Do national regulatory bodies that oversee service providers and digital technology fail to operate in a free, fair, and independent manner?||4.004 4.004|
The CRTC largely operates independently of the government. The government appoints the CRTC chairperson and commissioners without public consultation, but they are not subject to political pressure. In some cases, the government has provided guidance on policy expectations regarding telecommunications regulations, but its input is nonbinding. Moreover, CRTC decisions can be appealed, or a government review can be requested. The government has rarely overturned CRTC decisions.
The CRTC’s regulatory powers extend to internet access, but not to internet content, a principle known as the “new media exemption.” The CRTC’s position to refrain from internet content regulation dates to 1999 and has been reinforced on numerous occasions since,1 including by the Supreme Court of Canada (SCC).2 This contrasts with other industries, specifically television, where the CRTC exerts some control over content, most notably by requiring broadcasters to air a minimum amount of Canadian content. Amendments to Canada’s Broadcasting Act proposed in November 20203 threaten to dramatically alter Canada’s media landscape by allowing for regulation of the internet and its content in new ways, effectively discarding the new media exemption.4
- 1Broadcasting Regulatory Policy CRTC 2015-355 and Broadcasting Order CRTC 2015-356, August 6, 2015, https://crtc.gc.ca/eng/archive/2015/2015-355.htm.
- 2“Reference re Broadcasting Act, 2012 SCC 4,” February 9, 2012, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7989/index.do.
- 3Bill C-10, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts, first reading November 3, 2020, available at https://parl.ca/DocumentViewer/en/43-2/bill/C-10/first-reading.
- 4See e.g. Michal Kasprowicz et al, “Canadian Government introduces legislation that would fundamentally transform the broadcasting system,” DLA Piper, November 25, 2020, https://www.dlapiper.com/en/us/insights/publications/2020/11/canadian-g…; Michael Geist, The Broadcasting Act Blunder, Day 3: Minister Guilbeault Says Bill C-10 Contains Economic Thresholds That Limit Internet Regulation. It Doesn’t,” November 23, 2020, https://www.michaelgeist.ca/2020/11/the-broadcasting-act-blunder-day-th….
|Does the state block or filter, or compel service providers to block or filter, internet content, particularly material that is protected by international human rights standards?||5.005 6.006|
The government does not generally block or filter online content or require service providers to do so. Project Cleanfeed Canada allows ISPs to block child sexual abuse imagery hosted outside of Canada, restrictions that are permissible under international human rights standards (see B3).
In November 2019, a court ordered all of Canada’s major ISPs to block several domains associated with a service that sold copyright-infringing programming. Several large media companies petitioned the Federal Court in Bell Media Inc. v. GoldTV.Biz to order the domains’ blocking for rebroadcasting their programming without permission. The court, holding that the plaintiffs would suffer irreparable harm, granted an injunction ordering ISPs to block users’ access to the websites via domain name system (DNS) and internet protocol (IP) blocking. Twelve domains and subdomains were blocked under the order, which permitted the media companies to seek further blocking orders for websites infringing on their programming. 1 The decision was appealed by ISP TekSavvy, and in a preliminary ruling in June 2020, the court granted intervening status to six different interested groups.2 In a May 2021 decision, the Federal Court of Appeal rejected TekSavvy’s appeal, concluding that the lower court judge did have the authority to grant website blocking orders, and that the lower court judge made no errors in his constitutional analysis (see B2 and B3).3 The Court of Appeal noted that the names and number of blocked websites would always be evolving as the defendants would simply change URLs, but website blocking orders could also simply be updated.
Previously, in January 2018, a group of over 25 ISPs, media companies, creative companies, and other interested parties—including major entities like Bell, Rogers, and the Canadian Broadcasting Corporation (CBC)—banded together as “FairPlay Canada”4 to petition the CRTC to establish an independent body that would recommend blocking access to “websites and services that are blatantly, overwhelmingly, or structurally engaged in piracy.”5 Some commentators criticized the plan for possibly violating Canada’s net neutrality regime and for the potential to affect websites that did not engage in piracy.6 Other commentators insisted it was a necessary tool to fight online piracy and protect copyright.7 Ultimately, the CRTC rejected the proposal in October 2018 after determining that it lacked jurisdiction to implement the plan. However, the CRTC invited Parliament to examine the issue,8 and there have been mixed messages. While a recent government report recommended the “Government of Canada increase its efforts to combat piracy,”9 another report explicitly rejected the FairPlay approach, stating it was up to the courts to decide if websites should be blocked.10
In January 2021, the CRTC launched a public consultation “to strengthen Canadians’ online safety” by blocking certain sites infected with botnets,11 but this plan has come under fire by commentators.12 The submissions to the consultation process from a broad range of industry actors almost universally opposed the plan.13
- 12019 FC 1432, November 15, 2019, https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/424753/index.do.
- 2Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108, https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/481591/index….
- 3Teksavvy Solutions Inc. v. Bell Media Inc., 2021 FCA 100, https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/497659/index….
- 4FairPlay Canada home page, https://www.fairplaycanada.com/.
- 5FairPlay Canada,”Application pursuant to sections 24, 24.1, 36, and 70(1)(a) of the telecommunications act, 1993 to disable on-line access to piracy sites,” January 29, 2018, https://assets.corusent.com/wp-content/uploads/2018/02/FairPlay_Canada_….
- 6Michael Geist, “The Case Against the Bell Coalition’s Website Blocking Plan,” February 2018, http://www.michaelgeist.ca/2018/02/case-bell-coalitions-website-blockin….
- 7Barry Sookman, “Why the CRTC should endorse FairPlay’s website-blocking plan: a reply to Michael Geist,” February 12, 2018, http://www.barrysookman.com/2018/02/12/why-the-crtc-should-endorse-fair…
- 8Government of Canada, “CRTC denies FairPlay Canada’s application on piracy websites on jurisdictional grounds,” October 2, 2018, https://www.canada.ca/en/radio-television-telecommunications/news/2018/…; See also: CRTC Telecom Decision CRTC 2018-384, https://crtc.gc.ca/eng/archive/2018/2018-384.htm
- 9Recommendation #6 in “SHIFTING PARADIGMS: Report of the Standing Committee on Canadian Heritage,” Julie Dabrusin, Chair, May 2019, https://www.ourcommons.ca/Content/Committee/421/CHPC/Reports/RP10481650….
- 10See Michael Geist, “The Authoritative Canadian Copyright Review: Industry Committee Issues Balanced, Forward-Looking Report on the Future of Canadian Copyright Law,” June 3, 2019, https://www.michaelgeist.ca/2019/06/the-authoritative-canadian-copyrigh….
- 11“CRTC launches consultation to strengthen Canadians’ online safety,” CRTC News Release, January 13, 2021, https://www.canada.ca/en/radio-television-telecommunications/news/2021/….
- 12See e.g. Michael Geist, “Blocking is Back: Why Internet Blocking is the Next Big Canadian Policy Battle,” March 17, 2021, https://www.michaelgeist.ca/2021/03/blocking-is-back/. See also Dave Naylor, “Feds blasted for plans to block entire websites for safety reasons,” March 25, 2021, Western Standard Online, https://westernstandardonline.com/2021/03/feds-blasted-for-plans-to-blo….
- 13Howard Solomon, “Canada’s big carriers, ISPs turn thumbs down on proposed mandatory botnet-fighting regime,” March 17, 2021, IT World Canada, https://www.itworldcanada.com/article/canadas-big-carriers-isps-turn-th….
|Do state or nonstate actors employ legal, administrative, or other means to force publishers, content hosts, or digital platforms to delete content, particularly material that is protected by international human rights standards?||3.003 4.004|
Nonstate actors, specifically large media companies, have used legal means to force digital platforms to delete content, generally for copyright infringement. However, a significant development in 2018 should reduce the misuse of the notice-and-notice regime under the Copyright Act.
The previous notice-and-notice regime required ISPs to forward notices from copyright holders claiming infringement to the alleged copyright violator (see B3). Several US-based antipiracy firms, including Rightscorp and CEG-TEK, used the system to send notifications to subscribers that misstated Canadian copyright law, citing US awards for damages and threatening the termination of internet access. The notifications sowed fear among Canadians, and many paid the settlement fees proposed in the notices.1 In December 2018, Parliament passed amendments to the program to restrict the information that can be included in the notices, no longer allowing misstatements of Canadian law. Further, ISPs are no longer required to forward notices to subscribers if they contain an offer to settle the infringement claim, a request or demand for payment or personal information, or a URL linking to such offers or demands.2
Media companies have continued to use the courts to shut down and penalize operators of websites and other online services that redistribute their content in violation of copyright laws, or that offer services facilitating such activities. In 2017, the Federal Court of Appeal upheld a lower court decision granting an injunction to shut down websites selling copyright-infringing set-top boxes.3 In November 2019, a group of media companies sought and obtained an order forcing ISPs to block certain websites that hosted copyright-infringing content which was subsequently upheld by the Court of Appeal in May 2021 (see B1 and B3). The efforts continued during this coverage period, with a cable TV channel seeking an injunction to block large retail chains from selling set-top streaming boxes which could be reprogrammed to stream pirated content.4
In 2017, the SCC upheld the decision by the British Columbia Court of Appeals in Google, Inc. v. Equustek Solutions, Inc.,5 ordering Google to remove URLs in its global index pointing to websites that infringed on the plaintiffs’ trademark (see B3).
Defamation claims may also result in content removal, as content hosts fear potential liability as publishers of the defamatory content. Defamation claims may also prevent the posting of content, as the British Columbia Court of Appeal demonstrated in March 2018 when it ordered a defendant not to post anything about the plaintiff, as well as awarding damages.6 In June 2018, the SCC ruled that a case involving the publication of defamatory content on an Israeli website against a Canadian resident should be heard in Israel rather than Canada, despite the fact that damages were incurred in Canada.7 In 2021, a British Columbia court came to the opposite conclusion, specifically that a defamation case against Twitter could proceed in Canada.8 Furthermore, an Ontario court took defamation one step further when it recognized a common law tort of “internet harassment” to address the defendant's online conduct and publications, which went beyond defamation (see C2, C3, and C7).9
In March 2020, the Law Commission of Ontario, Canada’s largest province, proposed a new Defamation Act that would require internet platforms to remove defamatory content upon notification.10 The provincial government has not yet moved forward with the proposed reform.
In Quebec, Canada’s French-speaking province, websites that are commercial in nature are legally required to be in French,11 although they can also be in other languages. Violators may receive a warning from a government agency, and are then subject to fines, if they do not comply. Some website operators may choose to take their sites down rather than pay for translation or face fines. National or international operators of websites that do business in Quebec (and would therefore be subject to the law) sometimes block Quebec residents’ access to their websites rather than comply.12
- 1Jeremy Malcolm, “Canada Must Fix Rightsholder Abuse of its Copyright Notice System,” Deeplinks Blog, Electronic Frontier Foundation, April 23, 2015, https://www.eff.org/deeplinks/2015/04/call-canada-fix-rightsholder-abus….
- 2“Bill C-86, Budget Implementation Act, 2018, No. 2, amending the Copyright Act,” December 13, 2018, https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=101277….
- 3“Wesley dba MTLFREETV.com v Bell Canada et al, FCA 55,” March 30, 2017, https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/229063/index….
- 4Johnny Wakefield, “'Pirate devices': Edmonton TV company seeks injunction blocking Best Buy, other retailers from selling streaming boxes,” March 4, 2021, Edmonton Journal, https://edmontonjournal.com/news/local-news/pirate-devices-edmonton-tv-….
- 5“Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, Case Number 36602,” June 28, 2017, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16701/index.do
- 6“Nazerali v. Mitchell, 2018 BCCA 104,” March 19, 2018, https://www.canlii.org/en/bc/bcca/doc/2018/2018bcca104/2018bcca104.html
- 7“Haaretz.com, et al. v. Mitchell Goldhar, SCC,” January 1, 2019, https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=37202; See also: “Appeal from the decision of the Court of Appeal for Ontario, 2016 ONCA 515,” June 28, 2016, https://www.canlii.org/en/on/onca/doc/2016/2016onca515/2016onca515.html….
- 8Giustra v. Twitter, Inc., 2021 BCSC 54, January 14, 2021, https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc54/2021bcsc54.html.
- 9Caplan v. Atas, 2021 ONSC 670, January 28, 2021, https://www.canlii.org/en/on/onsc/doc/2021/2021onsc670/2021onsc670.html.
- 10Law Commission of Ontario, “Defamation Law in the Internet Age,” March 2020, https://www.lco-cdo.org/en/our-current-projects/defamation-law-in-the-i….
- 11“Charter of the French Language, c. C-11, Article 52,” June 1, 2020, http://legisquebec.gouv.qc.ca/en/ShowDoc/cs/C-11.
- 12Elysia Bryan-Baynes, “Quebec language police target English retail websites,” November 13, 2014, https://globalnews.ca/news/1671128/oqlf-targets-english-retail-websites/.
|Do restrictions on the internet and digital content lack transparency, proportionality to the stated aims, or an independent appeals process?||4.004 4.004|
Restrictions on the internet are generally fair and proportionate.
In August 2021, after the coverage period, the government released a technical paper for its forthcoming harmful online content legislation (see C6).1 The proposed framework establishes a notice-and-takedown regime for Online Communications Services (OCS) and Online Communications Service Providers (OSCP) to limit the spread of child sexual exploitation content, terrorist content, content that incites violence, hate speech, and the nonconsensual sharing of intimate images. Additionally, the framework for the law enables ISPs to block websites that have not removed child sexual exploitation or terrorist content.2
Canada’s largest ISPs participate in Project Cleanfeed Canada, an initiative that allows ISPs to block access to child sexual abuse images that are hosted outside the country (as opposed to content hosted within Canada, which is subject to removal).3 Accessing child pornography is illegal in Canada under section 163.1(4.1) of the criminal code,4 as well as under international human rights standards. The initiative targets international sites that the Canadian government does not have the jurisdiction to shut down.
Bill 74, Quebec’s controversial law requiring ISPs to block access to gambling sites, came into effect in 2016,5 but remains inoperative. In July 2018, a Quebec court declared the law unconstitutional, ruling online gambling a federal rather than provincial matter.6
In 2004, the SCC ruled that ISPs are not liable for copyright infringement violations committed by their subscribers,7 a principle now enshrined in law.8 Copyright law includes a notice-and-notice provision, in effect since 2015, which was amended in 2018 (see B2). Unlike a notice-and-takedown system, the program does not make intermediaries legally liable for removing content upon notification by the copyright owner. Rather, copyright owners are permitted to send notifications alleging infringement to ISPs. The ISPs are then able to forward the notifications to the implicated subscriber, though a December 2018 amendment to this system no longer requires ISPs to do so. Any further legal action is the responsibility of the copyright owner, and it is incumbent upon the person who uploaded the infringing content to remove it following a legal decision. No content is removed from the internet without a court order. Content may be ordered blocked at the ISP level by a court, and ISPs do not disclose subscriber information without court approval, although approvals are more common in recent years.9
In November 2019, a court ordered Canada’s major ISPs to block several domains associated for copyright infringement (see B1). Legal experts criticized the decision on numerous grounds: for example, as an overreach by the court in an area best left to Parliament or the CRTC,10 and that the court relied too heavily on a British decision within a different legal framework.11 TekSavvy, the only ISP to contest the original decision, appealed later that month based on freedom of speech and other concerns, but the Court of Appeal denied it in May 2021 (see B1 and B2).12 .
In the SCC’s ruling in Google, Inc. v. Equustek Solutions, Inc., the court’s reasoning was strictly focused on the law of intellectual property and interlocutory injunctions, so it is unclear if such worldwide orders may be granted in other areas of law in the future. It is also unclear whether such worldwide orders can have effect in foreign jurisdictions. For example, a US court has questioned whether Canadian courts have jurisdiction to make such an order, and has already granted a preliminary injunction against the implementation of the Equustek decision in the United States based on the long-standing principle of Google as an intermediary.13 In April 2018, Google took the US judgment back to the British Columbia court that made the original ruling and asked for the injunction to be suspended, but the court denied Google’s application.14 When the case was finally heard on the merits in May 2020, the court awarded significant damages based on copyright violations.15
Although platforms are legally protected from liability for copyright infringement by their users, they may face liability for alleged defamation once alerted to the publication. A court may also order the removal of the content. The SCC has held that merely linking to defamatory content on the internet is not defamation in and of itself; it would only be defamation if a site actually repeats the defamatory content. Therefore, the URLs would not be removed.16
- 1Government of Canada, Department of Canadian Heritage, “Harmful Online Content Technical Paper,” accessed September 2021, https://www.canada.ca/en/canadian-heritage/campaigns/harmful-online-con….
- 2Daphne Keller, “Five Big Problems with Canada’s Proposed Regulatory Framework for ‘Harmful Online Content’,” Tech Policy Press, August 31, 2021, https://techpolicy.press/five-big-problems-with-canadas-proposed-regula….
- 3Cybertip!ca, “Cleanfeed Canada,” https://www.cybertip.ca/app/en/projects-cleanfeed#projects-cleanfeed.
- 4Criminal Code, RSC 1985 c C-46 s 163.1(4.1).
- 5Michael Geist, “Government-Mandated Website Blocking Comes to Canada as Quebec’s Bill 74 Takes Effect,” May 26, 2016, http://www.michaelgeist.ca/2016/05/bill74takeseffect/.
- 6"Canadian Wireless Telecommunications Association c. Attorney General of Quebec, 2018 QCCS 3159 (CANLII) [Association canadienne des télécommunications sans fil c. Procureure générale du Québec 2018 QCCS 3159 (CanLII)]," https://www.canlii.org/fr/qc/qccs/doc/2018/2018qccs3159/2018qccs3159.ht….
- 7Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn of Internet Providers,  SCC, 2 SCR 427.
- 8Copyright Act, R.S.C., 1985, c. C-42, section 31.1, July 1, 2020, https://laws-lois.justice.gc.ca/eng/acts/c-42/FullText.html.
- 9Voltage Pictures, LLC v. John Doe, 2016 FC 881, CanLII, https://www.canlii.org/en/ca/fct/doc/2016/2016fc881/2016fc881.html, where the Federal Court ordered an ISP to divulge subscriber information of a representative defendant in a so-called “reverse class action” copyright infringement lawsuit. During the coverage period, the SCC denied certification for the underlying class action lawsuit in Voltage Pictures, LLC Canada v. Salna, 2019 FC 1412; See also: Federal Court Decisions, “Voltage Pictures, LLC Canada v. Salna,” November 12, 2019, https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/458741/index.do
- 10Michael Geist, “Fool’s Gold: Why a Federal Court Judge Was Wrong To Issue a Website Blocking Order Against GoldTV,” November 19, 2019, http://www.michaelgeist.ca/2019/11/fools-gold-why-a-federal-court-judge….
- 11Allen Mendelsohn, “Site blocking! Reverse class actions! It’s the internet and copyright law jurisprudence last two weeks in review,” November 25, 2019, http://allenmendelsohn.com/2019/11/site-blocking-reverse-class-actions-….
- 12Supra note 42.
- 13Google Inc. v. Equuestek Solutions Inc., United States District Court, N.D. California, San Jose Division, Docket No. 5:17-cv-04207-EJD, November 2, 2017, https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=https://….
- 14Equustek Solutions Inc. v Jack, 2018 BCSC 610, April 16, 2018, https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc610/2018bcsc610.html.
- 15Equustek Solutions Inc. v Jack, 2020 BCSC 793, May 29, 2020, https://www.canlii.org/en/bc/bcsc/doc/2020/2020bcsc793/2020bcsc793.html.
- 16“Crookes v. Newton, 2011 SCC 47,” October 19, 2011, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7963/index.do.
|Do online journalists, commentators, and ordinary users practice self-censorship?||3.003 4.004|
Online self-censorship is not widespread. However, certain individuals may self-censor for fear of potential government surveillance under Bill C-51, which was recently reformed (see C5).
|Are online sources of information controlled or manipulated by the government or other powerful actors to advance a particular political interest?||4.004 4.004|
Online sources of information are not widely controlled or manipulated by the government or other powerful actors. While some sites are partisan in nature, a wide array of political viewpoints are available online.
The government advanced legislation to combat disinformation and foreign interference in advance of the October 2019 federal election. The Election Modernization Act, which went into effect in June 2019, provides for a number of reforms such as regulations on third-party online advertising and restrictions on how much campaigns can spend before a campaign season officially commences.1 An internal Elections Canada report completed in late October 2019 found numerous instances of false election information being spread on social media.2 In March 2021, certain provisions of the Election Modernization Act prohibiting misinformation concerning criminal offenses committed by political candidates and their place of birth were struck down by an Ontario Court as unconstitutional, because they violated the right to freedom of speech.3 False information was also spread through social media platforms during the COVID-19 pandemic, with conspiracy theories gaining traction,4 including those about the COVID-19 vaccine.5
- 1Elise von Scheel, “New rules for pre-election spending kick in Sunday,” CBC News, June 29, 2019, https://www.cbc.ca/news/politics/c76-election-pre-writ-rules-the-house-…; See also: “Elections Modernization Act,” December 13, 2018, https://laws-lois.justice.gc.ca/eng/annualstatutes/2018_31/page-1.html.
- 2Ashley Burke, “Social media users voiced fears about election manipulation during 2019 campaign, says Elections Canada,” CBC News, January 30, 2020, https://www.cbc.ca/news/politics/elections-canada-social-media-monitori….
- 3Elizabeth Thomson, “Law prohibiting election misinformation struck down,” CBC News, March 14, 2021, https://www.cbc.ca/news/politics/elections-misinformation-court-free-sp…. See Canadian Constitution Foundation v. Canada (Attorney General), 2021 ONSC 1224, February 19, 2021, https://www.canlii.org/en/on/onsc/doc/2021/2021onsc1224/2021onsc1224.ht….
- 4Sam Cooper, “Nearly half of Canadians can’t tell coronavirus fact from conspiracy theory: survey,” Global News, May 20, 2020, https://globalnews.ca/news/6962870/coronavirus-misinformation-carleton-….
- 5Barbara Ortutay and Amanda Seitz, “Defying rules, anti-vaccine accounts thrive on social media,” CTV News, March 12, 2021, https://www.ctvnews.ca/health/coronavirus/defying-rules-anti-vaccine-ac….
|Are there economic or regulatory constraints that negatively affect users’ ability to publish content online?||3.003 3.003|
There are no economic or regulatory constraints on users’ ability to publish legal content online, although the increasing willingness of provincial governments to tax internet services may have some effect in the future.
Canada has strengthened its commitment to net neutrality as a matter of national policy, ensuring that ISPs present web content neutrally. In 2017, the CRTC enacted a pair of telecommunications policies that effectively prohibited differential pricing for some data services offered by ISPs and the zero-rating of certain media services, barring ISPs from offering such preferred media free of charge.1 With these policies, the CRTC has substantively completed a national framework that ensures the continuation of net neutrality. In a May 2018 report, a parliamentary committee encouraged the government to strengthen net neutrality even further by enshrining the principle in the Telecommunications Act.2
In January 2020, the government released a detailed report from a legislative review panel on the future of Canada’s communications legislation, the result of a review of initiated in its 2017 budget.3 Commentators have warned that the report, which focused heavily on content produced in Canada, may herald the weakening of net neutrality.4 However, the report itself included a commitment to the net neutrality principle. 5
The Department of Canadian Heritage, in the wake of its own report, announced a deal with Netflix in 2017, in which the streaming service pledged to spend a minimum of C$500 million ($385 million) on Canadian productions over the next five years.6 In its January 2020 review, the legislative review panel recommended that the national Goods and Services Tax (GST) should apply to “media communications services provided by foreign online providers,” reversing a previous decision to exempt Netflix from the tax.7
As part of the amendments to the Broadcasting Act in Bill C-10 (see A5) and a new federal government economic policy released in November 2020, streaming services would indeed be taxed (at the normal GST or Harmonized Sales Tax (HST) rates depending on the province, a range of 5 percent to 15 percent), raising significant revenue for the government.8 The government’s budget presented in April 2021 provided for implementation of a “Digital Services Tax,” which would tax “large businesses with gross revenue of 750 million euros or more” at a rate of 3 percent starting in 2022; the government predicts this would add C$3.4 billion ($2.6 billion) in revenue over five years.9 Numerous provinces including British Columbia, Quebec, and Saskatchewan already levy provincial sales taxes on out-of-province digital platforms, including Netflix, Google, Amazon, and, in Quebec’s case, Spotify.10
- 1Telecom Regulatory Policy CRTC 2017-104, “Framework for assessing the differential pricing practices of Internet service providers,” April 20, 2017, https://crtc.gc.ca/eng/archive/2017/2017-104.htm; See also: Telecom Decision CRTC 2017-105, “Complaints against Quebecor Media Inc., Videotron Ltd., and Videotron G.P. alleging undue and unreasonable preference and disadvantage regarding the Unlimited Music program,” April 20, 2017, https://crtc.gc.ca/eng/archive/2017/2017-105.htm.
- 2House of Commons Canada, “The Protection of Net Neutrality in Canada, Report of the Standing Committee on Access to Information, Privacy and Ethics,” May 2018, https://www.ourcommons.ca/Content/Committee/421/ETHI/Reports/RP9840575/…
- 3Government of Canada, “Innovation, Science and Economic Development Canada: Canada's communications future: Time to act,” January 2020, https://www.ic.gc.ca/eic/site/110.nsf/eng/00012.html.
- 4Michael Geist, “Not Neutral: Why the Broadcast Panel Report Weakens Net Neutrality in Canada,” February 5, 2020, http://www.michaelgeist.ca/2020/02/not-neutral-why-the-broadcast-panel-….
- 5Government of Canada, “Innovation, Science and Economic Development Canada: Canada's communications future: Time to act,” January 2020, https://www.ic.gc.ca/eic/site/110.nsf/eng/00012.html.
- 6Daniel Leblanc, “Netflix deal the centrepiece of cultural policy,” The Globe and Mail, September 27, 2017, https://beta.theglobeandmail.com/news/politics/ottawa-to-unveil-500-mil…;.
- 7Government of Canada, “Innovation, Science and Economic Development Canada: Canada's communications future: Time to act,” January 2020, https://www.ic.gc.ca/eic/site/110.nsf/eng/00012.html; See also: The Canadian Press, “Netflix tax not in the cards, Finance Minister Bill Morneau says,” The Star, December 10, 2017, https://www.thestar.com/news/canada/2017/12/10/netflix-tax-not-in-the-c….
- 8Canadian Press, “‘Netflix tax’ could yield $1.3B in revenue, slightly more than feds’ estimate: PBO,” Global News, February 10, 2021, https://globalnews.ca/news/7631862/digital-media-tax-netflix-pbo/.
- 9Government of Canada, “Budget 2021 - A Recovery Plan for Jobs, Growth, and Resilience,” April 19, 2021, chapter 10 section 10.1 at https://www.budget.gc.ca/2021/report-rapport/p4-en.html#chap10.
- 10“What the new 'Netflix tax' means for B.C. users,” CBC News, February 19, 2020, https://www.cbc.ca/news/canada/british-columbia/new-tax-on-streaming-se…
|Does the online information landscape lack diversity and reliability?||4.004 4.004|
The online environment in Canada is relatively diverse, and internet users have access to a wide range of news and opinions on a variety of topics. All major media organizations operate websites that feature articles and audio and video content. The public broadcaster maintains a comprehensive website that includes news articles and streamed video programming. Paywalls are increasingly used by newspapers publishing online, but many quality, independent news and commentary sites remain accessible for free. Misinformation surrounding COVID-19 was a significant issue in Canada during the coverage period.1
- 1Karine Garneau and Clémence Zossou, “Misinformation during the COVID-19 pandemic, “ Statistics Canada, February 2, 2021, https://www150.statcan.gc.ca/n1/pub/45-28-0001/2021001/article/00003-en….
|Do conditions impede users’ ability to mobilize, form communities, and campaign, particularly on political and social issues?||6.006 6.006|
Digital mobilization tools, including social media platforms and communication apps, are available and are used to build support for political and social movements. Online activism played a significant role in the Liberal government’s promise to repeal the problematic aspects of the Anti-Terrorism Act and influenced the government’s decision to introduce Bill C-59 to reform it (see C5). Much online activism that targets the ICT sector is spearheaded by a popular nonpartisan, nonprofit organization called Open Media, which advocates for three pillars of internet rights—free expression, access, and privacy.1
Canadians were especially active in the online #MeToo movement,2 which prompted the justice minister to consider updating laws to ensure victims of sexual violence are treated more compassionately in courtrooms.3 This online activism also influenced the government to introduce Bill C-65,4 which became law in October 2018 and dramatically updated the legal framework for harassment as it applies to the federal government and federally regulated workplaces.5 Online activism likely played a role in the decision to legalize cannabis countrywide,6 which went into effect in October 2018. Canadians have also relied on the internet to mobilize in the wake of the COVID-19 pandemic, which made in-person protests more difficult. For example, protesters in Saskatchewan moved their demonstration for a higher-education tuition freeze online in March 2020.7 As the pandemic progressed, the internet helped organize in-person protests once again, around issues ranging from Black Lives Matter8 to protests against mask mandates and other pandemic-related public health measures.9
- 1Open Media, https://openmedia.org/.
- 2Adina Bresge, “#Metoo movement prompting sexual-assault survivors to break silence to family,” National Post, January 31, 2018, https://nationalpost.com/pmn/news-pmn/canada-news-pmn/metoo-movement-pr….
- 3Kate Taylor, “Where to go after #MeToo,” The Globe and Mail, December 6, 2017, https://tgam.ca/2GNPCW1.
- 4“An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1,” 42nd Parliament, September 11, 2019, https://www.parl.ca/LegisInfo/BillDetails.aspx?billId=9220285&Language=E.
- 5Parliament of Canada, “Statutes of Canada, Chapter 22,” October 25, 2018, https://www.parl.ca/DocumentViewer/en/42-1/bill/C-65/royal-assent.
- 6Ian Brown, “‘The new activism isn’t about laws’: Stigma lingers despite end of cannabis prohibition,” The Globe and Mail, October 17, 2018, https://www.theglobeandmail.com/cannabis/article-the-stigma-that-surviv…
- 7Julia Peterson, “Post-secondary funding protest moves online amidst COVID-19 concerns,” CBC News, March 20, 2020, https://www.cbc.ca/news/canada/saskatchewan/budget-day-protest-online-s….
- 8“Canadians hold protests, vigils for black lives lost at the hands of police,” CBC News, June 5, 2020, https://www.cbc.ca/news/canada/canadian-floyd-anti-racism-rallies-1.559….
- 9Adam Kovac, “10 arrested, over 140 tickets given as thousands protest in Montreal against pandemic public health measures,” CTV News, March 13, 2021, https://montreal.ctvnews.ca/10-arrested-over-140-tickets-given-as-thous….
|Do the constitution or other laws fail to protect rights such as freedom of expression, access to information, and press freedom, including on the internet, and are they enforced by a judiciary that lacks independence?||5.005 6.006|
The constitution includes strong protections for freedom of speech and freedom of the press. Freedom of speech is protected as a “fundamental freedom” by Section 2 of the Canadian Charter of Rights and Freedoms. Under the Charter, one’s freedom of expression is “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”1 These protections apply to all forms of speech, whether online or offline. There are a few restrictions that apply to online speech (see C2).
- 1“Constitution Act, Canadian Charter of Rights and Freedoms,” 1982, https://laws-lois.justice.gc.ca/eng/const/page-15.html.
|Are there laws that assign criminal penalties or civil liability for online activities, particularly those that are protected under international human rights standards?||2.002 4.004|
Users can face significant criminal penalties for some forms of online expression, as well as civil liability for defamation emanating from common law principles. Some provincial defamation laws and the general civil liability regime in Quebec also limit freedom of expression online.
Hate speech, along with advocating genocide and uttering threats and defamatory libel, are also regulated under the criminal code.1 Punishment for defamatory libel, advocating genocide, and uttering threats may include imprisonment for up to five years. Hate speech is punishable by up to two years in prison. Human rights complaints regarding potentially defamatory statements can be decided through the mechanisms provided by provincial human rights laws and the Canadian Human Rights Act (CHRA).2 However, the controversial provision of the CHRA prohibiting online hate speech (s. 13), which was criticized for being overly broad, was repealed in 2013.3
In June 2021, after the coverage period, the government introduced Bill C-36,4 which would amend the criminal code to enable an individual to appear before a court if they are concerned that someone may commit an offense “motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity or expression, or any other similar factor.”5 The bill reintroduced the controversial provision of the CHRA and would also allow victims of hate speech to send formal complaints to the Canadian Human Rights Tribunal. However, the bill did not advance by the closure of the 43rd parliament in August 2021.6
In January 2021, an Ontario court took the definition of defamation one step further when it recognized a common law tort of “internet harassment” to address the defendant's online conduct and publications in Caplan v. Atas (see B2, C3, and C6). In this case, the court defined “internet harassment” as “serial publications of defamatory material,” which are used to “harass, harry, and molest” the victim.7
Antispam legislation enacted in 2014 requires opt-in consent to send commercial electronic messages. Critics of the legislation have argued that it is overly broad and overregulates commercial speech. After the Federal Court of Appeals upheld the constitutionality of the law in 2020,8 in March 2021, the SCC refused to hear an appeal, effectively ending any constitutional challenge.9
- 1R.S.C 1985 c. C-46, https://laws-lois.justice.gc.ca/eng/acts/C-46/FullText.html.
- 2R.S.C., 1985, c. H-6, https://laws-lois.justice.gc.ca/eng/acts/H-6/FullText.html.
- 3Parliament of Canada, “Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom), S.C. 2013, c. 37,” September 13, 2013, https://www.parl.ca/LegisInfo/BillDetails.aspx?billId=5124394&Language=….
- 4Parliament of Canada, Bill C-36, June 23, 2021, https://parl.ca/DocumentViewer/en/43-2/bill/C-36/first-reading.
- 5Eric Stober, “Liberals introduce bill to fight online hate with Criminal Code amendments,” Global News, June 23, 2021, https://globalnews.ca/news/7976076/bill-c-36-online-hate-canada/.
- 6Dale Smith, “Here’s what died on the order paper,” National Magazine, August 17, 2021, https://nationalmagazine.ca/en-ca/articles/law/hot-topics-in-law/2021/h….
- 7Caplan v. Atas, 2021 ONSC 670, January 28, 2021, https://www.canlii.org/en/on/onsc/doc/2021/2021onsc670/2021onsc670.html.
- 83510395 Canada Inc. v. Canada (Attorney General, 2020 FCA 103, June 5, 2020, https://www.canlii.org/en/ca/fca/doc/2020/2020fca103/2020fca103.html.
- 9Barry Sookman, “Supreme Court denies Compufinder leave to appeal in CASL Charter and constitutional challenge,” March 4, 2021, https://www.barrysookman.com/2021/03/04/supreme-court-denies-compufinde….
|Are individuals penalized for online activities, particularly those that are protected under international human rights standards?||6.006 6.006|
Individuals were not arrested or prosecuted for online activities that are protected under international human rights standards during the coverage period, though courts have recently increased awards in online defamation cases.
Generally, writers, commentators, and bloggers are not subject to legal sanction for content that they post on the internet. Internet users are free to discuss any political or social issues without risk of prosecution, unless the discourse violates the hate speech provisions in the criminal code, or rises to the level of harassment, which is both a criminal offense1 and now an actionable civil tort in Canada (see B2, C2, and C7).
Canadian courts take a proactive approach when hearing online defamation cases, and are increasingly willing to grant large monetary awards in some cases. In September 2019, a British Columbia court issued C$200,000 ($154,000) in damages.2 In January 2018, the Court of Appeal of Ontario upheld a C$700,000 ($539,000) judgment issued in 2016.3 In January 2020, an Ontario judge issued significant awards for defamation against anonymous online defendants for only the second time in Canadian legal history.4 When one anonymous defendant finally came forward, he was unable to get the original judgment against him thrown out, as he admitted to receiving service emails from plaintiff, and the Court viewed the defendant’s dismissal as a conscious decision not to participate in the proceedings.5
- 1Criminal Code, R.S.C., 1985, c. C-46, section 264, https://laws-lois.justice.gc.ca/eng/acts/c-46/FullText.html.
- 2“Rook v. Halcrow, 2019 BCSC 2253,” September 25, 2019, https://www.bccourts.ca/jdb-txt/sc/19/22/2019BCSC2253.htm.
- 3“Rutman v. Rabinowitz, 2018 ONCA 80,” CANLII, January 31, 2018, https://www.canlii.org/en/on/onca/doc/2018/2018onca80/2018onca80.html.
- 4“Theralase Technologies Inc. v. Lanter, 2020 ONSC 205,” CANLII, January 13, 2020, https://www.canlii.org/en/on/onsc/doc/2020/2020onsc205/2020onsc205.html.
- 5Theralase Technologies Inc. v Lanter, 2021 ONSC 943, February 5, 2021, https://www.canlii.org/en/on/onsc/doc/2021/2021onsc943/2021onsc943.html.
|Does the government place restrictions on anonymous communication or encryption?||4.004 4.004|
The government does not impose any restrictions on anonymous communication or encryption. Canadians are free to use encryption services and communicate anonymously online, without any fear of civil or criminal sanction. In August 2019, the Minister of Public Safety and Emergency Preparedness suggested that technology companies must actively combat the online exploitation of children, which he said is facilitated by encrypted communications.1 The comments followed a July 2019 communiqué, and preceded an October 2019 communiqué, from ministers in the “Five Eyes alliance”—five countries that maintain an intelligence operations agreement, including Canada—that criticized technology companies for providing encrypted products and limiting law enforcement access to those products.2 In October 2020, the Five Eyes joined the governments of Japan and India in requesting a “backdoor” for encrypted communications services.3
- 1Stuart Thomson, “’We’re closer to the knife’s edge’: Confrontation looming on encryption ‘backdoors’ as Goodale looks for balance,” National Post, August 7, 2019, https://nationalpost.com/news/politics/were-closer-to-the-knifes-edge-c…
- 2“Joint meeting of Five Country Ministerial and quintet of Attorneys-General: communiqué, London 2019,” gov.uk, 2019, https://www.gov.uk/government/publications/five-country-ministerial-com…; See also: “Joint Meeting of FCM and Quintet of Attorneys-General,” 2019, https://assets.publishing.service.gov.uk/government/uploads/system/uplo….
- 3“India joins Five Eyes, Japan in demanding backdoor into WhatsApp end-to-end encrypted chats,” India Today, October 12, 2020, https://www.indiatoday.in/technology/news/story/india-joins-five-eyes-j….
|Does state surveillance of internet activities infringe on users’ right to privacy?||4.004 6.006|
State surveillance of internet users under limited circumstances may infringe on privacy rights. In 2015, the government passed Bill C-51, the Anti-Terrorism Act. Bill C-51 permitted information sharing across government agencies for a wide range of purposes, many of which are unrelated to terrorism. Several efforts to reform Canada’s antiterrorism laws have subsequently materialized, most recently with Bill C-59.
Bill C-59, an Act Respecting National Security Matters,1 was introduced in June 2017 to address some of the more problematic provisions of the Anti-Terrorism Act,2 and was passed in June 2019.3 The law limits the broad criminal-speech provisions originally seen in Bill C-51. Bill C-59 is also meant to enhance parliamentary oversight through the creation of a National Security and Intelligence Review Agency and an Office of the Intelligence Commissioner.4 Bill C-59 still allows the government to engage in cyberoperations, but its powers to do so are more limited than in Bill C-51.5 Civil society groups raised concerns that Bill C-59 does not fully address surveillance issues posed by the previous legislation,6 and still grants too much power to the government, including the ability to engage in mass data collection.7 In February 2021, judges began hearing related cases, and have set limits on the government’s intelligence agency (CSIS) and its ability to spy on foreign countries.8
The Office of the Privacy Commissioner (OPC) provides an important oversight function concerning the privacy of users’ data. The privacy commissioner, Daniel Therrien, is an officer of Parliament who reports directly to the House of Commons and the Senate. The commissioner’s mandate includes overseeing compliance with the Privacy Act,9 which covers the practices of federal government departments and agencies related to the handling of personal information.
A general right to privacy is not enshrined in Canadian law, though the Canadian Charter of Rights and Freedoms includes protections against unreasonable search or seizure, which are often interpreted as a right to privacy.10 An OPC report released in December 2019 called for Parliament to legislate a right to privacy and affirm a human rights-based approach to federal privacy legislation.11 That same month, Prime Minister Trudeau instructed the attorney general and justice minister to strengthen online rights.12
In November 2020, the government began an overhaul of Canadian privacy law through the introduction of Bill C-11.13 The bill creates a new Consumer Privacy Protection Act (CPPA), which strengthens online rights for individuals (see C6); at the same time, it grants additional rights to businesses to use individuals’ personal information. The CPPA falls well short of affirming privacy as a human right or using a human rights-based approach, which has been criticized by many commentators.14 The bill did not advance after the closure of the 43rd parliament in August 2021, after the coverage period.
The SCC has also expanded privacy rights relating to technology. Most recently, in December 2018, the court ruled that privacy rights are still protected when a computer is shared with others.15 In 2017, the court extended the right to privacy to text messages in a pair of companion cases. First, the court held that there could be a reasonable expectation of privacy in received text messages, whereas previously, privacy protections only applied to sent messages.16 In the second case, the court held that the sender of text messages has a reasonable expectation of privacy, even when they are stored on the telecommunications provider’s computers.17 On the other hand, sometimes the Supreme Court does not find a reasonable expectation of privacy on the internet in more egregious circumstances, for example in exchanges of Facebook messages and emails in relation to a police sting regarding the criminal luring of minors.18
The COVID-19 pandemic has provided authorities the opportunity to erode privacy rights. For example, the Ontario government’s April 2020 emergency order allowed it to share personal information in their possession with emergency response personnel, including police officers and paramedics.19 In August 2020, Ontario officials ended this information sharing practice following a lawsuit from human rights organizations.20 The OPC’s annual report released in October 2020 centred on the need for heightened privacy during the pandemic and reform of privacy laws as a result.21 On the other hand, privacy concerns about the government’s COVID-19 tracing app, COVID Alert, were minimized, as privacy watchdogs found little reason for concern.22
- 1House of Commons of Canada, “1st session, 42nd Parl.,” June 20, 2017, https://www.parl.ca/DocumentViewer/en/42-1/bill/C-59/first-reading.
- 2Craig Forcese and Kent Roach, “The roses and the thorns of Canada’s new national security bill,” Maclean’s, June 20, 2017, https://www.macleans.ca/politics/ottawa/the-roses-and-thorns-of-canadas….
- 3Catharine Tunney, “Canada's national security landscape will get a major overhaul this summer,” CBC News, June 23, 2019, https://www.cbc.ca/news/politics/bill-c59-national-security-passed-1.51…
- 4Catharine Tunney, “Canada gets its first-ever intelligence commissioner,” CBC News, July 18, 2019, https://www.cbc.ca/news/politics/intelligence-commissioner-plouffe-1.52…; See also: International Civil Liberties Monitoring Group, “Bill C-59: Changes to C-51,” January 2020, https://iclmg.ca/issues/bill-c-59-the-national-security-act-of-2017/bil…; See also: Preston Lim, “Canada Considers Most Far-Reaching Intell Reforms in Decades,” Just Security, May 13, 2019, https://www.justsecurity.org/64030/canada-considers-most-far-reaching-i….
- 5Victoria Henry, “C-59: A Promise Not Kept,” OpenMedia, July 11, 2019, https://openmedia.org/en/c-59-promise-not-kept.
- 6Canadian Civil Liberties Association, “Read CCLA’s Submissions on Bill C-59,” January 19, 2018, https://ccla.org/read-cclas-submissions-bill-c-59/.
- 7International Civil Liberties Monitoring Group, “Bill C-59, The National Security Act, 2017, is now law. Parliamentarians have failed to protect Canadians’ rights and freedoms,” June 18, 2019, https://iclmg.ca/c59-is-law/; See also: Victoria Henry, “C-59: A Promise Not Kept,” OpenMedia, July 11, 2019, https://openmedia.org/en/c-59-promise-not-kept.
- 8Jim Bronskill, “Judge denies CSIS request to collect foreign intelligence,” CTV News, February 3, 2021, https://www.ctvnews.ca/politics/judge-denies-csis-request-to-collect-fo….
- 9“R.S.C., 1985, c. P-21,” August 28, 2019, https://laws-lois.justice.gc.ca/eng/acts/P-21/index.html
- 10“Canadian Charter of Rights and Freedoms,” 1982, https://laws-lois.justice.gc.ca/eng/const/page-15.html.
- 11OPC, “Privacy Law Reform - A Pathway to Respecting Rights and Restoring Trust in Government and the Digital Economy - 2018-2019 Annual Report to Parliament on the Privacy Act and the Personal Information Protection and Electronic Documents Act,” December 2019, https://www.priv.gc.ca/en/opc-actions-and-decisions/ar_index/201819/ar_….
- 12Honorable Justin Trudeau, “Minister of Justice and Attorney General of Canada Mandate Letter,” December 13, 2019, https://pm.gc.ca/en/mandate-letters/2019/12/13/minister-justice-and-att….
- 13House of Commons of Canada, Bill C-11, An Act to enact the Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act and to make consequential and related amendments to other Acts, First Reading November 17, 2020, https://parl.ca/DocumentViewer/en/43-2/bill/C-11/first-reading.
- 14See e.g. Allen Mendelsohn, “OK OK, here’s your post about Bill C-11: what’s *not* in the Bill,” December 15, 2020, http://allenmendelsohn.com/2020/12/whats-not-in-bill-c11/.
- 15“R. v. Reeves, 2018 SCC 56,” December 13, 2018, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17405/index.do.
- 16“R. v. Marakah, 2017 SCC 59,” December 8, 2017, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16896/index.do.
- 17“R. v. Jones, 2017 SCC 60,” December 8, 2017, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16897/index.do.
- 18R v. Mills, 2019 SCC 22, April 18, 2019, https://www.canlii.org/en/ca/scc/doc/2019/2019scc22/2019scc22.html.
- 19Beatrice Britneff, “Privacy experts raise red flags as Ontario first responders get access to COVID-19 info,” Global News, April 7, 2020, https://globalnews.ca/news/6788234/privacy-experts-red-flags-covid-19-i….
- 20“Ontario ends police access to COVID-19 database after legal challenge,” CBC News, August 17, 2020, https://www.cbc.ca/news/canada/toronto/covid-ont-police-database-1.5690…
- 21OPC, “Privacy in a pandemic: 2019-2020 Annual Report to Parliament on the Privacy Act and Personal Information Protection and Electronic Documents Act,” https://www.priv.gc.ca/en/opc-actions-and-decisions/ar_index/201920/ar_… (the “2019-2020 OPC Report”).
- 22Alexandra Mae Jones, “Canadian privacy watchdogs support COVID-19 exposure app,” CTV News, August 3, 2020, https://www.ctvnews.ca/health/coronavirus/canadian-privacy-watchdogs-su….
|Does monitoring and collection of user data by service providers and other technology companies infringe on users’ right to privacy?||4.004 6.006|
Both ISPs and mobile service providers may be legally required to aid the government in monitoring communications of their users.
The OPC and the Privacy Commissioner oversee compliance with the private-sector privacy law,1 the Personal Information Protection and Electronic Documents Act (PIPEDA).2 PIPEDA was modified by the Digital Privacy Act,3 passed in 2015. The Digital Privacy Act expanded the scope for companies to make voluntary warrantless disclosures of personal information under certain circumstances, by allowing for such disclosures to any organization, not just law enforcement. The act also established new mandatory security breach disclosure requirements, which came into force in November 2018.4 PIPEDA, however, remains relatively toothless. The new CPPA bill (see C5) which would replace PIPEDA, has significant fines and penalties on the order of those found in the European Union’s General Data Protection Regulation (GDPR).
A Standing Committee on Access to Information, Privacy, and Ethics (ETHI) report released in February 2018 called for significant changes to strengthen PIPEDA and better align it with the GDPR,5 as did the government’s January 2020 report on legislative reform of the communications sector.6 This would generally be achieved under the proposed CPPA (see C5).
The OPC has also called for changes to the Privacy Act, which has not been significantly amended since 1983. The commission argues that the act is outdated and does not reflect the privacy concerns of the digital age. The OPC also asserts that it allows the government too much latitude to collect personal information.7 There was no progress on this reform during the coverage period.
The OPC shocked the legal community in January 2018 when it released a draft position paper concluding that PIPEDA contained a European-style “right to be forgotten” provision.8 Commentators questioned the OPC’s conclusions and reasoning.9 In October 2018, the OPC submitted a reference question to the Federal Court to clarify whether indexing web pages and presenting results about a person’s name in Google’s search function fall under PIPEDA. If the Federal Court replies that these actions are subject to PIPEDA, it would support the right to be forgotten position.10 The case continues to drag on, and it remains unclear when the Federal Court will issue its decision;11 and the OPC has stated it will not alter its position until the Federal Court rules.12 The ETHI report called for the right to be forgotten to be included in future PIPEDA amendments. In December 2019, Prime Minister Trudeau13 and the Privacy Commissioner14 both called for reform to Canada’s privacy laws, including the right to be forgotten. The proposed CPPA (see C5), however, does not contain a true European-style right to be forgotten.
The OPC conducts investigations into major data breaches and other matters to determine whether private companies comply with PIPEDA. In its investigation into the 2017 Equifax breach, the OPC found major PIPEDA violations. In response, Equifax took numerous corrective measures and signed a compliance agreement.15 In the OPC’s investigation into the Cambridge Analytica scandal, Facebook refused to take significant corrective measures or implement the OPC’s recommendations.16 In May 2019, Facebook CEO Mark Zuckerberg and COO Sheryl Sandberg ignored a subpoena from a parliamentary committee to testify on the scandal.17 In February 2020, the OPC filed an application with the Federal Court seeking a declaration that Facebook violated PIPEDA and orders requiring Facebook to take corrective action,18 which continues to proceed through the court though a final decision is far from being rendered.19
Numerous court decisions have made it easier for Canadians to seek legal redress against foreign internet companies for privacy violations. In a landmark 2017 decision, the SCC ruled that residents of British Columbia could bring a class action suit against Facebook for violating certain privacy rights in a British Columbia court, despite Facebook’s choice-of-forum clause specifying California.20 Other courts followed up on this decision, with a Quebec court deciding that Yahoo’s choice-of-forum clause was inoperative, as its terms and conditions were deemed to be a consumer contract that granted jurisdiction to Quebec.21 While the choice-of-forum clause in the case chose another Canadian province (Ontario), it is clear that the same reasoning could apply internationally. In another dramatic development, in 2017 the Federal Court found that PIPEDA has extraterritorial application, and ordered a Romanian website to remove court decisions that contained easily searchable personal information of Canadian citizens. The site was ordered to never post such information again,22 and the court ordered the website to pay damages to the plaintiff.
The technical paper for harmful online content (see B3),23 which was introduced after the coverage period in August 2021, mandates that Online Communications Service Providers (OCSPs) retain data about individuals who might have shared harmful content and may be obligated to share this data with law enforcement.24
During the coverage period, the OPC turned its attention to facial recognition technology, finding that the practices of an owner of major shopping centers25 and facial recognition software company Clearview AI26 violated individuals’ data privacy rights under PIPEDA.
- 1Office of the Privacy Commissioner of Canada, “About the OPC,” September 14, 2016, https://web.archive.org/web/20170330201210/https://www.priv.gc.ca/en/ab….
- 2“Personal Information Protection and Electronic Documents Act (PIPEDA), S.C. 2000, c. 5,” June 21, 2019, https://laws-lois.justice.gc.ca/eng/acts/P-8.6/index.html.
- 3“Digital Privacy Act, S.C. 2015, c. 32,” June 18, 2015, https://laws-lois.justice.gc.ca/eng/annualstatutes/2015_32/page-1.html.
- 4Government of Canada, “Breach of Security Safeguards Regulations, published in the Canada Gazette SOR/2018-64, Part II,” March 27, 2018, http://www.gazette.gc.ca/rp-pr/p2/2018/2018-04-18/html/sor-dors64-eng.h….
- 5“Towards Privacy by Design: Review of the Personal Information Protection and Electronic Documents Act,” ETHI Committee Report, February 2018, https://www.ourcommons.ca/DocumentViewer/en/42-1/ETHI/report-12/page-ToC; See also: Allen Mendelsohn, “Privacy! Privacy! Privacy!,” March 28, 2018, http://allenmendelsohn.com/2018/03/privacy-privacy-privacy/.
- 6Government of Canada, “Innovation, Science and Economic Development Canada: Canada's communications future: Time to act,” January 2020, https://www.ic.gc.ca/eic/site/110.nsf/eng/00012.html.
- 7Alex Boutilier, “Ottawa is ‘blurring’ lines on privacy as it looks for new ways to collect data: watchdog,” The Star, February 21, 2018, https://www.thestar.com/news/canada/2018/02/21/ottawa-is-blurring-lines….
- 8Office of the Privacy Commissioner of Canada, “Draft OPC Position on Online Reputation,” January 28, 2018, https://www.priv.gc.ca/en/about-the-opc/what-we-do/consultations/comple….
- 9Michael Geist, “Why the Canadian Privacy Commissioner’s Proposed Right to be Forgotten Creates More Problems Than it Solves,” January 29, 2018, http://www.michaelgeist.ca/2018/01/privacycommishrtbf/; See also: Allen Mendelsohn, “Surprise! Canada has had a Right To Be Forgotten all along!,” January 30, 2018, http://allenmendelsohn.com/2018/01/surprise-canada-has-had-a-right-to-b….
- 10OPC, “Privacy Commissioner seeks Federal Court determination on key issue for Canadians’ online reputation,” October 10, 2018, https://www.priv.gc.ca/en/opc-news/news-and-announcements/2018/an_18101….
- 11See Federal Court Case Information, file number T-1779-18, https://www.fct-cf.gc.ca/en/court-files-and-decisions/court-files.
- 12See the 2019-2020 OPC Report, supra note 145.
- 13Rt. Hon. Justin Trudeau, “Minister of Justice and Attorney General of Canada Mandate Letter,” December 13, 2019, https://pm.gc.ca/en/mandate-letters/2019/12/13/minister-justice-and-att….
- 14OPC, “Privacy Law Reform - A Pathway to Respecting Rights and Restoring Trust in Government and the Digital Economy - 2018-2019 Annual Report to Parliament on the Privacy Act and the Personal Information Protection and Electronic Documents Act,” December 2019, https://www.priv.gc.ca/en/opc-actions-and-decisions/ar_index/201819/ar_….
- 15OPC, “Investigation into Equifax Inc. and Equifax Canada Co.’s compliance with PIPEDA in light of the 2017 breach of personal information - PIPEDA Report of Findings #2019-001,” April 9, 2019, https://www.priv.gc.ca/en/opc-actions-and-decisions/investigations/inve….
- 16OPC, “Joint investigation of Facebook, Inc. by the Privacy Commissioner of Canada and the Information and Privacy Commissioner for British Columbia - PIPEDA Report of Findings #2019-002,” April 25, 2019, https://www.priv.gc.ca/en/opc-actions-and-decisions/investigations/inve….
- 17Alex Boutilier, “Facebook’s Zuckerberg and Sandberg named in unprecedented summons issued by MPs,” The Star, May 28, 2019, https://www.thestar.com/news/canada/2019/05/28/facebooks-zuckerberg-and….
- 18OPC, “Privacy Commissioner files Notice of Application with the Federal Court against Facebook, Inc,” February 6, 2020, https://www.priv.gc.ca/en/opc-news/news-and-announcements/2020/an_20020….
- 19See case information T-190-20 and T-473-20 at https://www.fct-cf.gc.ca/en/court-files-and-decisions/court-files#cont; see also the 2019-2020 OPC Report, supra note 145.
- 20“Douez v. Facebook, Inc., 2017 SCC 33,” June 23, 2017, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16700/index.do.
- 21“Demers c. Yahoo! Inc., 2017 QCCS 4154,” CANLII, September 19, 2017, https://www.canlii.org/en/qc/qccs/doc/2017/2017qccs4154/2017qccs4154.ht….
- 22“A.T. v. Globe24h.com, 2017 FC 114,” CanLII, January 30, 2017, https://www.canlii.org/en/ca/fct/doc/2017/2017fc114/2017fc114.html.
- 23Government of Canada, Department of Canadian Heritage, “Harmful Online Content Technical Paper,” accessed September 2021, https://www.canada.ca/en/canadian-heritage/campaigns/harmful-online-con….
- 24Daphne Keller, “Five Big Problems with Canada’s Proposed Regulatory Framework for ‘Harmful Online Content’,” Tech Policy Press, August 31, 2021, https://techpolicy.press/five-big-problems-with-canadas-proposed-regula….
- 25PIPEDA Report of Findings #2020-004, October 28, 2020, https://www.priv.gc.ca/en/opc-actions-and-decisions/investigations/inve….
- 26PIPEDA Report of Findings #2021-001, February 2, 2021, https://www.priv.gc.ca/en/opc-actions-and-decisions/investigations/inve….
|Are individuals subject to extralegal intimidation or physical violence by state authorities or any other actor in relation to their online activities?||5.005 5.005|
There were no documented cases of violence or physical harassment in retaliation for online activities during the reporting period. However, cyberbullying, cyberstalking, and general online harassment, particularly affecting young people, is on the rise.1 A 2016 study found that a quarter of Canadians have been subjected to some form of online harassment,2 while a 2018 report indicated that a third of Canadian parents know a child in their community who experienced cyberbullying,3 and a 2020 survey found that 62 percent of Canadian women aged 15-25 have been harassed or abused online.4 The government has recognized the seriousness of the issue, and announced in 2017 that it would develop a coordinated strategy,5 though there has been little progress.
The legal precedence of a noteworthy case involving the nonconsensual sharing of intimate material has taken on new significance. In a highly praised 2016 landmark civil court decision, a man who published intimate videos of his ex-girlfriend without her consent was ordered to pay C$100,000 ($77,000) to his former partner, who suffered severe emotional distress.6 Later that year, however, the default judgment was set aside,7 and an appeal of this decision was denied.8 As a result, the new privacy tort of “public disclosure of private facts” established in the original decision was in a state of flux. Notwithstanding the procedural issues with the original case, the new tort was applied in a November 2018 case, in which an individual was found liable for posting a sexually explicit video of a person without their consent on a pornographic website, and was ordered to pay C$100,000 ($77,000) in damages.9
In December 2019, a court cited the tort in awarding significant damages in a family law case involving a man cyberbullying his ex-wife and posting negative videos of their children, who were minors, online.10 The 2016 case continues to be cited by other plaintiffs, authors, and courts.11 The newly established tort of “internet harassment” (see B2, C2, and C3) could in theory also find relevance in these cases. There are also increasing calls for tech companies to take aggressive action in removing such material,12 and to face criminal penalties.13 Pornhub, a Montreal-based pornography platform, faced numerous lawsuits filed during the coverage period in Canada and the United States accusing them of profiting from underage nonconsensual intimate images.14
Additionally, many provinces, including Manitoba15 and Alberta,16 have passed laws that create civil torts for unauthorized distribution of intimate images and videos. Individuals are still prosecuted under Section 162.1 of the criminal code, which makes it a crime to publish, distribute, transmit, or sell intimate images without the consent of the person depicted.17 By December 2019, Canadian police forces received nearly 5,000 complaints since nonconsensual sharing of intimate material was federally criminalized in December 2014.18
- 1“More than 1 million young Canadians victims of cyberbullying, cyberstalking: StatsCan,” CBC News, December 19, 2016, https://www.cbc.ca/news/technology/million-canadians-cyberbullying-cybe….
- 2Victor Ferreira, “More than a quarter of Canadians are subjected to harassment on social media, new poll finds,” National Post, October 21, 2016, https://nationalpost.com/news/canada/more-than-a-quarter-of-canadians-a….
- 3Maham Abeti, “Even with more awareness, cyberbullying isn’t declining in Canada: Ipsos poll,” Global News, June 27, 2018, https://globalnews.ca/news/4299734/cyberbullying-cases-awareness-canada….
- 4News release, “Online harassment is silencing girls online, driving them from Facebook, Instagram and Twitter,” October 5, 2000, https://www.newswire.ca/news-releases/online-harassment-is-silencing-gi….
- 5“Feds eye sexting, cyber violence strategy,” CBC News, March 27, 2017, https://www.cbc.ca/news/canada/sudbury/cyber-violence-harassment-sextin….
- 6“Doe 464533 v N.D., 2016 ONSC 541,” CanLII, January 21, 2016, http://canlii.ca/t/gn23z.
- 7“Doe v N.D., 2016 ONSC 4920,” CanLII, September 16, 2016, https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4920/2016onsc4920.ht….
- 8“Doe 464533 v N.D., 2017 ONSC 127,” CanLII, January 9, 2017, https://www.canlii.org/en/on/onsc/doc/2017/2017onsc127/2017onsc127.html.
- 9Jane Doe 72511 v. Morgan, 2018 ONSC 6607; See also: Omar Ha-Redeye, “Public Disclosure of Private Facts – Redux,” Slaw.ca, November 11, 2018, http://www.slaw.ca/2018/11/11/public-disclosure-of-private-facts-redux/.
- 10“Yenovkian v. Gulian, 2019 ONSC 7279,” CanLII, December 17, 2019, https://www.canlii.org/en/on/onsc/doc/2019/2019onsc7279/2019onsc7279.ht….
- 11Omar Ha-Redeye, “Public Disclosure of Private Facts – Redux,” Slaw.ca, November 11, 2018, http://www.slaw.ca/2018/11/11/public-disclosure-of-private-facts-redux/.
- 12Karen Pauls, “Woman who spent years scrubbing explicit video from internet urges tech firms to make it easier to remove,” CBC News, December 1, 2020, https://www.cbc.ca/news/canada/manitoba/canada-internet-children-abuse-….
- 13Christopher Reynolds, “Survivors, NGOs call for criminal investigation of porn giant MindGeek,” CBC News, March 4, 2021, https://www.cbc.ca/news/politics/calls-for-criminal-investigation-mindg….
- 14Selena Ros, “New lawsuit against Pornhub alleges improvements to the site don't go far enough,” CTV News, February 13, 2021, https://montreal.ctvnews.ca/new-lawsuit-against-pornhub-alleges-improve….
- 15“Intimate Image Protection Act, C.C.S.M. c. I87,” October 1, 2020, https://web2.gov.mb.ca/laws/statutes/ccsm/_pdf.php?cap=i87.
- 16“Protecting Victims of Non-Consensual Distribution of Intimate Images Act, S.A. 2017 ch. P-26.9,” August 4, 2017, http://www.qp.alberta.ca/documents/Acts/P26p9.pdf.
- 17“R. v. P.S.D., 2016 BCPC 400,” CanLII, December 12, 2016, https://www.canlii.org/en/bc/bcpc/doc/2016/2016bcpc400/2016bcpc400.html; See also: “R. v. A.C., 2017 ONCJ 129,” CanLII, February 16, 2017, https://www.canlii.org/en/on/oncj/doc/2017/2017oncj129/2017oncj129.html….
- 18Bonnie Allen, “Revenge porn and sext crimes: Canada sees more than 5,000 police cases as law marks 5 years,” CBC News, December 24, 2019, https://www.cbc.ca/news/canada/saskatchewan/revenge-porn-and-sext-crime….
|Are websites, governmental and private entities, service providers, or individual users subject to widespread hacking and other forms of cyberattack?||2.002 3.003|
Cyberattacks and data breaches have become a serious issue in Canada. With a new requirement that private companies report data breaches to the OPC, the number of reports of such breaches between November 2018 and October 2019 increased sixfold over the previous reporting period.1 It is unclear whether the number of breaches is increasing or the mandatory reporting requirement has led to more reports. The OPC also reported that over 28 million Canadians were affected by data breaches during the 2018–19 period.2 Statistics Canada reported that 57 percent of internet users suffered some sort of cybersecurity incident during the 2018 calendar year,3 and about one-fifth of Canadian businesses were impacted by cybersecurity incidents in 2019.4 During the previous coverage period, major Canadian companies were subject to numerous cyberattacks and data breaches, including Lifelabs, Canada’s largest healthcare lab testing company, and the Desjardins Group, one of Canada’s largest banking groups.5 An OPC investigation found Desjardins violated numerous provisions of PIPEDA.6 In September 2020, major Canadian e-commerce company Shopify was a victim of data theft by its own employees.7
During the coverage period, a survey released by the Canadian Internet Registration Authority (CIRA) indicated that one-third of respondents said their organization was targeted by a pandemic-related cyberattack.8 Experts warn that increased online activities such as shopping during the pandemic has led to a massive increase in vulnerable online personal data,9 which was also stressed in a report by the government’s Canadian Centre for Cyber Security.10 The report also cited state-sponsored actors from China, Russia, Iran, and North Korea, as the greatest strategic cybersecurity threats to Canada.11
Cyberattacks and data breaches have also affected federal government agencies. Most recently, in August 2020, the Canada Revenue Agency (CRA,) the federal department that oversees taxation and other financial services, suffered multiple significant cyberattacks that compromised the usernames and passwords of thousands of online accounts,12 which led the CRA to lock out 800,000 Canadians from their accounts as a precautionary measure in March 2021.13 In February 2020, the government disclosed that agencies suffered thousands of privacy breaches affecting the personal information of at least 144,000 Canadians in 2018 and 2019; the actual figure may be higher due to underreporting.14 In late 2017, the Bank of Canada’s governor stated that cyberattacks are the most pressing concern for the financial system,15 and the deputy privacy commissioner expressed similar concerns in April 2019.16
- 1OPC, “A full year of mandatory data breach reporting: What we’ve learned and what businesses need to know,” October 31, 2019, https://www.priv.gc.ca/en/blog/20191031/.
- 3Statistics Canada, “Cybercrime in Canada,” December 2, 2019, https://www150.statcan.gc.ca/n1/pub/89-28-0001/2018001/article/00015-en….
- 4Statistics Canada The Daily, “About one-fifth of Canadian businesses were impacted by cyber security incidents in 2019,” October 20, 2020, https://www150.statcan.gc.ca/n1/daily-quotidien/201020/dq201020a-eng.htm.
- 5Aidan Wallace, “Major data breaches in 2019,” January 1, 2020, Toronto Sun, https://torontosun.com/news/world/major-data-breaches-in-2019.
- 6PIPEDA Report of Findings #2020-005, December 14, 2020, https://www.priv.gc.ca/en/opc-actions-and-decisions/investigations/inve….
- 7“Shopify fires 2 employees for stealing customer data from up to 200 merchants,” CBC News, September 23, 2020, https://www.cbc.ca/news/business/shopify-data-breach-1.5735191.
- 8Sarah Cole, “Canada Bombarded with COVID-19-Themed Cyber-attacks,” info security magazine, October 6, 2020, https://www.infosecurity-magazine.com/news/canada-bombarded-with-covid1…. Original CIRA report at https://www.cira.ca/cybersecurity-report-2020.
- 9“Pandemic online shopping boom has generated bumper crop of vulnerable personal data, e-commerce experts warn,” CBC News, January 22, 2021, https://www.cbc.ca/radio/spark/pandemic-online-shopping-boom-has-genera….
- 10Canadian Centre for Cyber Security, “National Cyber Threat Assessment 2020,” November 16, 2020, https://cyber.gc.ca/en/guidance/national-cyber-threat-assessment-2020.
- 11News release, “Canadian Centre for Cyber Security Releases the Canadian National Cyber Threat Assessment 2020,” November 18, 2020, https://www.canada.ca/en/communications-security/news/2020/11/canadian-….
- 12Rachel D’Amore, “What to know (and do) about the CRA breach and shutdown,” Global News, August 17, 2020, https://globalnews.ca/news/7281074/cra-hack-online-services/.
- 13Rachel Aiello, “CRA locking 800K Canadian taxpayers out of accounts,” CTV News, March 12, 2021, https://www.ctvnews.ca/canada/cra-locking-800k-canadian-taxpayers-out-o….
- 14Catharine Tunney, “Personal information belonging to 144,000 Canadians breached by federal departments and agencies,” CBC News, February 14, 2020, https://www.cbc.ca/news/politics/privacy-breach-canada-1.5457502.
- 15Andy Blatchford, “Threat of cyberattacks ‘more worrisome than all the other stuff’: Bank of Canada governor,” The Star, October 26, 2017, https://www.thestar.com/business/2017/10/26/threat-of-cyberattacks-more….
- 16Gregory Smolynec, “Appearance before the Standing Committee on Public Safety and National Security (SECU) on Cybersecurity in the Financial Sector as a National Economic Security Issue,” April 3, 2019, https://www.priv.gc.ca/en/opc-actions-and-decisions/advice-to-parliamen….
See all data, scores & information on this country or territory.See More
Global Freedom Score98 100 free
Internet Freedom Score87 100 free
Freedom in the World StatusFree