|A Obstacles to Access||23 25|
|B Limits on Content||32 35|
|C Violations of User Rights||32 40|
Internet freedom in Canada remained robust during the coverage period. Internet access is reliable and affordable for most 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 laws relating to government surveillance laws and personal privacy. While Indigenous and other marginalized Canadians still face discrimination and economic, social, and political challenges, the federal government has acknowledged and made some moves to address these issues.
- Media companies continued to use the courts to shut down and penalize operators of websites that redistribute their content in violation of copyright laws, or that offer services facilitating such activities. In May 2022, the Federal Court granted a “dynamic” site-blocking order that forced internet service providers (ISPs) to block websites showing pirated content (live sporting events) in real time (see B1 and B2).
- In August 2021, the government released a technical paper for its forthcoming harmful online content legislation. The proposed framework would establish a notice-and-takedown regime for online communications services (OCS) and online communications service providers (OSCP) to limit the spread of various categories of content and would mandate that OCSPs retain data about individuals who might have shared harmful content (see B3 and C6).
- In December 2021, the prime minister announced his intention to propose legislation to strengthen privacy protections for users; the government introduced a bill to this effect in June 2022, after the coverage period. Also in June, the national police force disclosed its use of spyware to hack suspects’ devices in serious criminal and national security investigations, though allegedly always with judicial authorization (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 continue to deploy several newer technologies to provide mobile broadband service, and fifth-generation (5G) technology network coverage reached 53.3 percent as of 2020.1 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.2
Broadband service of at least 5 megabits per second (Mbps) reached over 98 percent household availability in 2019, according to the regulatory body that oversees the communications industry, the Canadian Radio-television and Telecommunications Commission (CRTC).3 4 That year, 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 2031,5 which was identified as Canada’s “Universal Service Objective” in a landmark 2016 policy decision.6 Canada is making progress on this front, moving from 87.4 percent availability in 2019 to 89.5 percent availability in 2020, with 67.7 percent of all subscribers having such service.7
In conjunction with the 2016 decision, the CRTC declared high-speed internet access a “basic telecommunications service” and established a C$750 million dollar ($587 million) fund to reach those targets.8 In 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 continued through 2021, with C$206.1 million ($161.3 million) awarded as of May 2022.11 The CRTC’s fund is part of a larger commitment to broadband access in Canada through the C$2.75 billion ($2.15 billion) Universal Broadband Fund.12
While robust infrastructure generally safeguards against power shortages or blackouts that limit Canadians’ internet access, a failure following a maintenance update caused a country-wide mobile and internet outage for customers of one of the major ISPs, Rogers, that lasted 15 hours in July 2022, after the coverage period.13
- 1Canadian Radio-television and Telecommunications Commission, “Annual highlights of the telecommunications sector 2020,” December 15, 2021, https://crtc.gc.ca/eng/publications/reports/PolicyMonitoring/2021/tel.h…, Infographic 6.
- 2International Telecommunications Union, “Statistics,” “Fixed Broadband subscriptions,” “Mobile Broadband Subscriptions,” accessed September 2021, https://www.itu.int/en/ITU-D/Statistics/Pages/stat/default.aspx.
- 3Canadian 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….
- 4Ibid, see figure 9.22.
- 5Canadian Radio-television and Telecommunications Commission, “Departmental Plan 2022-2023,” March 2, 2022, https://crtc.gc.ca/eng/publications/reports/dp2022/dp2022.htm
- 6CRTC 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.
- 7Canadian Radio-television and Telecommunications Commission, “Annual highlights of the telecommunications sector 2020,” December 15, 2021, https://crtc.gc.ca/eng/publications/reports/PolicyMonitoring/2021/tel.h…, Infographic 7.
- 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 January 6, 2022.
- 12Government of Canada, “Universal Broadband Fund,” November 25, 2021, https://www.ic.gc.ca/eic/site/139.nsf/eng/h_00006.html.
- 13Malu Cursino, “Canada's internet outage caused by 'maintenance',” BBC, July 10, 2022, https://www.bbc.com/news/world-us-canada-62110358
|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 10 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 0.7 percent GNI per capita.
Perhaps the most important obstacle to availability and ease of access is geography: 82 percent of Canada’s population lives in urban areas.3 While providing “reliable and affordable telecommunications services of high quality” to rural areas is enshrined in law,4 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 ISPs, according to the CRTC’s 2020 figures.5 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.
When considering the CRTC’s high-quality service definitions, the urban-rural divide is staggering: 50 Mbps service is available to 98.6 percent of urban households, but only 45.6 percent of rural households.6 Generally the divide does not appear to be shrinking and may in fact be growing.7
The government has generally taken a patchwork approach to improving connectivity in remote communities. In 2019, the government pledged to spend C$5 billion ($3.9 billion) to C$6 billion ($4.7 billion) to improve rural broadband services over 10 years.8 The 2021 budget—presented in April as the first budget in two years due the COVID-19 pandemic9 —included an additional C$1 billion ($783 million) that will in part go towards improving rural and remote broadband access.10 The 2022 budget did not add any additional funds to this initiative.11
The urban-rural divide only increased during the COVID-19 pandemic,12 and a proposed merger between two of Canada’s largest telecommunications companies is also expected to intensify the divide (see A4).13
There is also a significant access gap in terms of income: as of 2021, the penetration rate for “excellent data quality” home internet access for the highest income quartile was 90.7 percent, while the equivalent penetration rate for the lowest income quartile was only 75.9 percent.14
Internet connections are widely available in public spaces such as cafés, shopping malls, and libraries, generally free of charge.
- 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.
- 3Statistics Canada, “Population growth in Canada’s rural areas, 2016 to 2021,” February 9, 2022, https://www12.statcan.gc.ca/census-recensement/2021/as-sa/98-200-x/2021….
- 4Telecommunications Act, S.C. 1993, c.38, section 7(b), https://laws-lois.justice.gc.ca/eng/acts/T-3.4/FullText.html.
- 5Canadian 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….
- 6CRTC, Broadband Fund, “Closing the Digital Divide in Canada,” https://crtc.gc.ca/eng/internet/internet.htm.
- 7Charlotte Morritt-Jacobs, “New report on internet connectivity shows growing urban and rural divide in Canada,” aptn National News, November 6, 2021, https://www.aptnnews.ca/national-news/new-report-on-internet-connectivi….
- 8Government 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-….
- 9Government 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.
- 10David 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….
- 11Government of Canada, “Budget 2022 - A Plan to Grow Our Economy and Make Life More Affordable,” April 7, 2022, available at https://budget.gc.ca/2022/home-accueil-en.html.
- 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, “Internet access locations by age group and family income quartile,” Table 22-10-0144-01, released October 29, 2021, accessed March 24, 2022, https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=2210014401.
|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.
|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 telecommunications market is currently dominated by the five largest companies (Bell, Québecor, Rogers, Shaw, and TELUS), which accounted for 86.9 percent of total retail telecommunications market revenue in 2020.1
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.2 If approved, this will lead to less competition and higher prices for Canadians.3 The CRTC approved the broadcasting portion of the merger in 2021;4 the decisions on the internet and wireless portions of the merger, which have received pushback from at least one government committee and the federal Industry Minister citing competition concerns, were still to be made at the end of the coverage period.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 and some providers are restricted to urban areas. 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 and domestic-roaming agreements and a consumer regulator to address consumer concerns.
Three mobile service providers dominate the market, with Bell, TELUS, and Rogers accounting for 88.6 percent of the mobile market’s revenue in 2020.6 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. There is often only one choice per technology type, leading to a public perception that options are limited and prices 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 ordered the three largest wireless companies (Bell, TELUS, and Rogers) to lower their prices by 25 percent over the next two years.8 This was achieved for “mid-range” wireless plans by January 2022.9
- 1CRTC, “Annual highlights of the telecommunications sector 2020,” December 15, 2021, https://crtc.gc.ca/eng/publications/reports/PolicyMonitoring/2021/tel.h…, Table 4 and accompanying text.
- 2Dwayne 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-….
- 3Michael 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/.
- 4CRTC, Broadcasting Decision CRTC 2022-76, March 24, 2022, https://crtc.gc.ca/eng/archive/2022/2022-76.htm.
- 5The Canadian Press, “House committee says Rogers-Shaw deal should not proceed,” BNN Bloomberg, March 4, 2022, https://www.bnnbloomberg.ca/house-committee-says-rogers-proposed-takeov…; The Canadian Press, “Government won't allow Rogers to buy all of Shaw's wireless business,” CBC News, March 3, 2022, https://www.cbc.ca/news/business/rogers-shaw-industry-minister-champagn….
- 6CRTC, “Annual highlights of the telecommunications sector 2020,” December 15, 2021, https://crtc.gc.ca/eng/publications/reports/PolicyMonitoring/2021/tel.h…, Table 1 and accompanying text.
- 7Tristan Hopper, “Canada's wireless costs 'continue to be the highest or among the highest in the world': Finnish report,” National Post, October 10, 2021, https://nationalpost.com/news/canada/canadas-wireless-costs-continue-to….
- 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.
- 9Government of Canada News Release, “Government of Canada delivers on commitment to reduce cell phone wireless plans by 25%,” January 28, 2022, https://www.canada.ca/en/innovation-science-economic-development/news/2….
|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 Amendments to Canada’s Broadcasting Act in the form of Bill C-11, called the “Online Streaming Act,” proposed in February 20223 threaten to dramatically alter Canada’s media landscape. It would allow for regulation of the internet and its content in new and myriad ways, effectively discarding the new media exemption and regulating content from non-Canadian sources.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-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts, first reading February 2, 2022, available at https://www.parl.ca/DocumentViewer/en/44-1/bill/C-11/first-reading
- 4See e.g. Michael Geist, “The CRTC Provides an Advance Preview of Bill C-11 Regulation: Pretty Much Any Service, Anywhere, Any Terms and Conditions, “ March 9, 2022, https://www.michaelgeist.ca/2022/03/the-crtc-provides-an-advance-previe…. .
|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. 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 Legal experts criticized the decision on numerous grounds, including by calling it an overreach by the court into a policy issue that should be decided by Parliament or the CRTC.2 The decision was appealed by ISP TekSavvy, which the Federal Court of Appeal rejected in May 2021, concluding that the lower court judge did have the authority to grant website blocking orders (see B2).3 In March 2022, the SCC declined to hear TekSavvy’s second appeal, ending the case.4
The media companies from the Bell Media case took the next step in seeking site-blocking in October 2021, when they filed for a case seeking a “dynamic” site-blocking order. In May 2022, the Federal Court granted a preliminary injunction that required ISPs to block internet protocol (IP) addresses of websites showing pirated content (specifically, live streamed professional hockey games) in real time.5 The temporary order, which lasted the duration of the professional hockey season, is considered the first of its kind in North America.6
Previously, in 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”7 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.”8 Ultimately, the CRTC rejected the proposal that year after determining that it lacked jurisdiction to implement the plan.
In January 2021, the CRTC launched a public consultation “to strengthen Canadians’ online safety” by blocking certain sites infected with botnets.9 The plan has come under fire by commentators,10 and submissions to the consultation process from a broad range of industry actors almost universally opposed it.11 In June 2022, after the coverage period, the CRTC released an enforcement decision that confirmed botnets need to be regulated, provided a framework for doing so, and required a CRTC working group to present a plan to block such websites within nine months.12
- 12019 FC 1432, November 15, 2019, https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/424753/index.do.
- 2Michael 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….
- 3Teksavvy Solutions Inc. v. Bell Media Inc., 2021 FCA 100, https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/497659/index….
- 4Supreme Court of Canada Docket, case # 39876, https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=39876.
- 5Rogers Media Inc. v. John Doe 1, 2022 FC 775, https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/521629/index.do.
- 6See e.g Osler, “Canadian Federal Court issues dynamic website-blocking injunction to combat unauthorized hockey webcasts,” June 9, 2022, https://www.osler.com/en/resources/regulations/2022/canadian-federal-co….
- 7FairPlay Canada home page, https://www.fairplaycanada.com/.
- 8FairPlay 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_….
- 9“CRTC launches consultation to strengthen Canadians’ online safety,” CRTC News Release, January 13, 2021, https://www.canada.ca/en/radio-television-telecommunications/news/2021/….
- 10See 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….
- 11Howard 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….
- 12CRTC, “Compliance and Enforcement and Telecom Decision CRTC 2022-170 – Development of a network-level blocking framework to limit botnet traffic and strengthen Canadians’ online safety,” June 23, 2022, https://crtc.gc.ca/eng/archive/2022/2022-170.htm.
|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, 2018 legal amendments to the Copyright Act reduced the misuse of the law’s notice-and-notice regime.
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 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 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 a Court of Appeal in May 2021 (see B1 and B3). In February 2022, a long-running case between all of Canada’s major media companies and an owner of a website that distributed software facilitating online piracy, known as TVAddons, came to an end with a C$25 million ($19.6 million) settlement in which the owner admitted liability, and the offending site was shut down.3
In 2017, the SCC upheld the decision by the British Columbia Court of Appeal in Google, Inc. v. Equustek Solutions, Inc.,4 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 (see C3). Defamation claims may also prevent the posting of content, as the British Columbia Court of Appeal demonstrated in a 2018 case when it ordered a defendant not to post anything about the plaintiff and awarded damages.5 In 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.6 In 2021, a British Columbia court came to the opposite conclusion, specifically that a defamation case against Twitter could proceed in Canada.7
In March 2020, the Law Commission of Ontario, Canada’s most populous province, proposed a new Defamation Act that would require internet platforms to remove defamatory content upon notification.8 The provincial government has not yet moved forward with the proposed reform.
In Quebec, where French is recognized as the only official language, websites that are commercial in nature are legally required to be in French,9 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.10
- 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….
- 3Andy Maxwell, “TVAddons’ Adam Lackman Admits TV Show Piracy, Agrees to Pay US$19.5m,” TorrentFreak, February 24, 2022, https://torrentfreak.com/tvaddons-adam-lackman-admits-tv-show-piracy-ag….
- 4“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
- 5“Nazerali v. Mitchell, 2018 BCCA 104,” March 19, 2018, https://www.canlii.org/en/bc/bcca/doc/2018/2018bcca104/2018bcca104.html
- 6“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….
- 7Giustra v. Twitter, Inc., 2021 BCSC 54, January 14, 2021, https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc54/2021bcsc54.html.
- 8Law 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….
- 9“Charter of the French Language, c. C-11, Article 52,” June 1, 2020, http://legisquebec.gouv.qc.ca/en/ShowDoc/cs/C-11.
- 10Elysia 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, 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 Following public consultations, the government announced in early 2022 that they would work with experts to alter their approach, though the specifics have not yet been announced.3 Significant monetary penalties for noncompliance by OCSs and OCSPs include administrative monetary penalties (AMPs) in line with Canada’s new privacy law (see C5).4
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).5 Accessing child sexual abuse imagery is illegal in Canada under section 163.1(4.1) of the criminal code,6 as well as under international human rights standards.
Bill 74, Quebec’s controversial law requiring ISPs to block access to gambling sites, came into effect in 2016,7 but remains inoperative as a Quebec court declared the law unconstitutional in 2018, ruling online gambling a federal rather than provincial matter.8 In May 2021, the Quebec Court of Appeal upheld that ruling,9 and in March 2022, the SCC declined to hear the matter.10
In 2004, the SCC ruled that ISPs are not liable for copyright infringement violations committed by their subscribers,11 a principle now enshrined in law.12 Copyright law includes a notice-and-notice provision, in effect since 2015, which was amended in 2018 (see B2). 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 the granting of such approvals have become more common in recent years.13
The SCC’s ruling in Google, Inc. v. Equustek Solutions, Inc.—wherein Google was ordered to remove URLs in its global index pointing to websites that infringed on the plaintiffs’ trademark—was strictly focused on the law of intellectual property and interlocutory injunctions. Whether such worldwide orders may be granted in other areas of the law in the future, or whether they will have effect in foreign jurisdictions, is unclear.14
Although platforms are legally protected from liability for copyright infringement by their users, they may face liability for alleged defamation once they have been alerted to the publication of the ostensibly defamatory content. A court may also order the removal of such 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 material. URLs in such cases would not be removed.15
- 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….
- 3Rachel Aiello, “Feds' planned crackdown on harmful online content getting a revamp,” CTV News, February 3, 2022, https://www.ctvnews.ca/politics/feds-planned-crackdown-on-harmful-onlin….
- 4See sections 94 ff, Government 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….
- 5Cybertip!ca, “Cleanfeed Canada,” https://www.cybertip.ca/en/about/ccaice/.
- 6Criminal Code, RSC 1985 c C-46 s 163.1(4.1).
- 7Michael 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/.
- 8"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….
- 9Procureur général du Québec c. Association canadienne des télécommunications sans fil, 2021 QCCA 730, 2021 QCCA 730, https://www.canlii.org/fr/qc/qcca/doc/2021/2021qcca730/2021qcca730.html.
- 10SCC case file # 39774, https://scc-csc.lexum.com/scc-csc/scc-l-csc-a/en/item/19249/index.do.
- 11Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn of Internet Providers,  SCC, 2 SCR 427.
- 12Copyright 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.
- 13Voltage 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.
- 14For 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. See, Google 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://…; Equustek Solutions Inc. v Jack, 2018 BCSC 610, April 16, 2018, https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc610/2018bcsc610.html; Equustek Solutions Inc. v Jack, 2020 BCSC 793, May 29, 2020, https://www.canlii.org/en/bc/bcsc/doc/2020/2020bcsc793/2020bcsc793.html.
- 15“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, the Anti-Terrorism Act, 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.
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 of that year, 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 about political candidates’ past criminal offenses 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 as conspiracy theories gained traction, 4 including those about the COVID-19 vaccine.5 Reporting from April 2022 also revealed the presence of Russian-backed troll farms on Facebook and other social media platforms that used disinformation to target Canadians that distrusted the government’s COVID-19 response.6
- 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…; Ashleigh Stewart, “The great COVID-19 infodemic: How disinformation networks are radicalizing Canadians,” Global News, December 18, 2021, https://globalnews.ca/news/8450263/infodemic-covid-19-disinformation-ca….
- 6Tom Blackwell, “Russian troll farms aiming disinformation war at Canadian anti-vaxxers: Global Affairs expert,” SaltWire, April 19, 2022, https://www.saltwire.com/atlantic-canada/news/russian-troll-farms-aimin…
|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 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 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 ($391 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 Measures to charge GST or Harmonized Sales Tax (HST) rates, depending on the province (a range of 5 percent to 15 percent) on digital businesses, including digital platform operators, came into effect in July 2021,8 after having been proposed in the government’s April 2021 budget9 and passed into law that June.10
In December 2021, the federal government proposed an additional “Digital Services Tax” (DST) where online companies with annual worldwide revenues of over €750 million ($849 million) would have to pay a 3 percent tax on their Canadian revenues, if those Canadian revenues are greater than C$20 million ($15.7 million).11 The DST would not come into force before 2024, but would apply retroactively as of 2022 if passed.
Numerous provinces including British Columbia, Quebec, and Saskatchewan had already been levying provincial sales taxes for several years on out-of-province digital platforms, including Netflix, Google, Amazon, and, in Quebec’s case, Spotify.12 In December 2021, the Manitoba provincial government also added a sales tax.13
- 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….
- 8Government of Canada, “GST/HST for digital economy businesses: Overview,” last modified July 29, 2021, https://www.canada.ca/en/revenue-agency/services/tax/businesses/topics/….
- 9Government of Canada 2021 Budget ("A Recovery Plan for Jobs, Growth, and Resilience") Annex 6, “Application of the GST/HST to E-commerce” subsection, April 21, 2021, https://www.budget.gc.ca/2021/report-rapport/anx6-en.html#application-o….
- 10Bill C-30, “An Act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures,” https://www.parl.ca/LegisInfo/en/bill/43-2/C-30.
- 11Deputy Prime Minister and Minister of Finance, “Notice of Ways and Means Motion to introduce an Act to implement a Digital Services Tax,” December 2021, https://fin.canada.ca/drleg-apl/2021/bia-leb-1221-1-eng.html.
- 12“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…
- 13Roger Smith et al, “Manitoba’s retail sales tax rules expand to online sales and streaming platforms,” Osler, December 13, 2021, https://www.osler.com/en/resources/regulations/2021/manitoba-s-retail-s….
|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 high-quality, independent news and commentary sites remain accessible for free. While some sites are partisan in nature, a wide array of political viewpoints are available online. Misinformation surrounding the COVID-19 virus has been a significant issue in Canada throughout the pandemic.1
There is a wide range of content available in both official federal languages (English and French), as well as many other languages.
- 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 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 information and communications technology (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 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 also went into effect in 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 The so-called “Trucker Convoy” of early 2022 in Ottawa was fueled by online activity, including crowdfunding efforts to financially support attendees.10
- 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….
- 10Stephanie Carvin, “How the Freedom Convoy was fuelled by online activism,” National Post, March 5, 2022, https://nationalpost.com/opinion/stephanie-carvin-how-the-freedom-convo….
|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 (section 13), which was criticized for being overly broad, was repealed in 2013.3
In June 2021, 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 prohibiting online hate speech 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 February 2022, the reelected Liberal government announced its intention to reintroduce similar legislation.7
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.8
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 Appeal upheld the constitutionality of the law in 2020,9 in March 2021, the SCC refused to hear an appeal, effectively ending any constitutional challenge.10
- 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….
- 7Marie Woolf (Canadian Press), “Liberals to reintroduce anti-hate bill ‘as soon as possible,’ minister says,” Global News, February 4, 2022, https://globalnews.ca/news/8595683/anti-hate-bill-c-36-liberals/.
- 8Caplan v. Atas, 2021 ONSC 670, January 28, 2021, https://www.canlii.org/en/on/onsc/doc/2021/2021onsc670/2021onsc670.html.
- 93510395 Canada Inc. v. Canada (Attorney General, 2020 FCA 103, June 5, 2020, https://www.canlii.org/en/ca/fca/doc/2020/2020fca103/2020fca103.html.
- 10Barry 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 ($157,000) in damages.2 In 2018, the Court of Appeal of Ontario upheld a C$700,000 ($548,000) 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 In October 2021, an Ontario court awarded C$50,000 ($39,000) each to two plaintiffs in a defamation suit against an individual who had initiated a social media campaign against them in 2020. The campaign began after the defendant saw screenshots from the plaintiffs’ Snapchat video that the defendant assumed mocked the May 2020 murder of George Floyd in the United States.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.
- 5Lavallee et al. v. Isak, 2021 ONSC 6661, https://www.canlii.org/en/on/onsc/doc/2021/2021onsc6661/2021onsc6661.ht….
|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, permitting 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 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 It still allows the government to engage in cyberoperations, but its powers to do so are more limited than what was provided for in Bill C-51.5 Civil society groups raised concerns that Bill C-59 does not fully address surveillance issues posed by previous legislation6 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), including 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 This was demonstrated in 2020, when the Alberta Court of Appeal determined that a law that allowed for unrestricted searches of personal electronic devices by border agents violated this protection.11
In December 2021, Prime Minister Justin Trudeau announced his intention to propose legislation to strengthen privacy protections for users in the near future, provide for significant monetary penalties for noncompliance, and enable massive enforcement powers for the federal privacy authorities and a new privacy tribunal.12 The government had introduced a bill to this effect in 2020, Bill C-11, but it did not advance after the August 2021 closure of the 43rd parliament.13 The federal government is seeking to catch up with provincial privacy laws, notably the privacy reforms passed in September 2021 in Quebec that are similar to the General Data Protection Regulation (GDPR) of the European Union (EU).14 In June 2022, after the coverage period, the government introduced Bill C-27, which generally presented the identical framework as Bill C-11.15
The SCC has also expanded privacy rights relating to technology. Most recently, in 2018, the court ruled that privacy rights are still protected when a computer is shared with others.16 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.17 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.18 However, the SCC has not found 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.19
In June 2022, after the coverage period, the national police force disclosed its use of spyware to hack a suspect’s phones or laptop and collect data, including by turning on device cameras and microphones remotely. According to the Royal Canadian Mounted Police, spyware is only used during serious criminal and national security investigations when less intrusive techniques are unsuccessful; its use always requires authorization from a judge. The force reported deploying spyware in 10 investigations between 2018 and 2020.20
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.21 In August 2020, Ontario officials ended this information-sharing practice following a lawsuit from human rights organizations.22 The OPC’s annual report released in December 2021 reiterated the emphasis of the previous year’s report on the need for heightened privacy during the pandemic and the necessary reforms to privacy laws.23 The OPC is currently investigating whether the federal government’s health authorities overreached when analyzing Canadians’ cell phone location data during the pandemic.24 However, privacy watchdogs expressed little concern about the government’s COVID-19 tracing app, COVID Alert.25
- 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.
- 11R. v. Canfield, 2020 ABCA 383, https://www.canlii.org/en/ab/abca/doc/2020/2020abca383/2020abca383.html.
- 12Prime Minister of Canada, “Minister of Innovation, Science and Industry Mandate Letter,” December 16, 2021, https://pm.gc.ca/en/mandate-letters/2021/12/16/minister-innovation-scie….
- 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.
- 14Fasken, “The Beginning of a New Era for the Private Sector: Bill 64 on the Protection of Personal Information Has Been Adopted,” September 23, 2021, https://www.fasken.com/en/knowledge/projet-de-loi-64/2021/09/23-debut-t….
- 15Government of Canada, “New laws to strengthen Canadians’ privacy protection and trust in the digital economy”, News Release, June 16, 2022, https://www.canada.ca/en/innovation-science-economic-development/news/2…. See legislative information and text of the Bill at https://www.parl.ca/legisinfo/en/bill/44-1/c-27.
- 16“R. v. Reeves, 2018 SCC 56,” December 13, 2018, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17405/index.do.
- 17“R. v. Marakah, 2017 SCC 59,” December 8, 2017, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16896/index.do.
- 18“R. v. Jones, 2017 SCC 60,” December 8, 2017, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16897/index.do.
- 19R v. Mills, 2019 SCC 22, April 18, 2019, https://www.canlii.org/en/ca/scc/doc/2019/2019scc22/2019scc22.html.
- 20Maura Forrest, “Canada’s national police force admits use of spyware to hack phones,” Politico, June 29, 2022, https://www.politico.com/news/2022/06/29/canada-national-police-spyware…
- 21Beatrice 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….
- 22“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…
- 23OPC, “Projecting our values into laws,” https://www.priv.gc.ca/en/opc-actions-and-decisions/ar_index/202021/ar_…
- 24Alex Boutilier, “Canada’s privacy watchdog probing health officials’ use of cellphone location data,” Global News, January 11, 2022, https://globalnews.ca/news/8503895/watchdog-probing-officials-cell-loca….
- 25Alexandra 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, which expanded the scope for companies to make voluntary warrantless disclosures of personal information under certain circumstances by allowing for such disclosures to be made to any organization, not just law enforcement. The act also established new mandatory security breach disclosure requirements, which came into force in 2018.4 PIPEDA, however, remains relatively powerless. A privacy protection bill presented in June 2022 (see C5), which would replace PIPEDA, has significant fines and penalties on the order of those found in the GDPR.
The OPC continues to call for changes to the Privacy Act,5 which has not been significantly amended since 1983. The commission argues that the act is outdated, does not reflect current digital privacy concerns, and allows the government too much latitude to collect personal information.6 There was no progress on this reform during the coverage period.
The OPC shocked the legal community in 2018 when it released a draft position paper concluding that PIPEDA contained a European-style “right to be forgotten” provision.7 Commentators questioned the OPC’s conclusions and reasoning.8 In 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, which would support their right to be forgotten position. In July 2021, the Federal Court issued its decision and stated that indeed Google search falls under PIPEDA;9 Google appealed the decision in September 2021.10
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 data breach, the OPC found major PIPEDA violations. In response, Equifax took numerous corrective measures and signed a compliance agreement.11 In the OPC’s investigation into the Cambridge Analytica scandal—wherein Cambridge Analytica improperly accessed the personal data of Facebook users—Facebook refused to take significant corrective measures or implement the OPC’s recommendations.12 In February 2020, the OPC filed an application with the Federal Court seeking a declaration that Facebook had violated PIPEDA and an order requiring Facebook take corrective action.13 While a final decision is far from being rendered,14 a preliminary ruling on certain procedural matters was released in June 2021.15 In another case from December 2021, the OPC found that Clearview AI had violated PIPEDA by scraping images from the internet without consent and sharing them with law enforcement. However, the OPC passed on enforcement of the relevant provisions of PIPEDA to provincial counterparts,16 demonstrating the law’s weakness.
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.17 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.18 While Yahoo’s choice-of-forum clause specified another Canadian province (Ontario) and not another country, the court’s reasoning could clearly apply internationally. In a significant 2017 decision, 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,19 and the court ordered the website to pay damages to the plaintiff.
The technical paper for harmful online content (see B3),20 which was introduced in August 2021, mandates that OCSPs retain data about individuals who might have shared harmful content and may be obligated to share this data with law enforcement.21
- 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….
- 5See the 2020-2021 OPC Report, supra note 160.
- 6Alex 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….
- 7Office 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….
- 8Michael 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….
- 9Reference re Subsection 18.3(1) of the Federal Courts Act, 2021 FC 723, https://www.canlii.org/en/ca/fct/doc/2021/2021fc723/2021fc723.html.
- 10Case A-250-21 (Google LLC v. The Privacy Commissioner of Canada et al) case information, https://apps.fca-caf.gc.ca/pq/IndexingQueries/infp_RE_info_e.php?select…, accessed March 28, 2022.
- 11OPC, “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….
- 12OPC, “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….
- 13OPC, “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….
- 14See 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 2020-2021 OPC Report, supra note 160.
- 15Canada (Privacy Commissioner) v. Facebook, Inc., 2021 FC 599, https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/499490/index.do.
- 16OPC Announcement, “Clearview AI ordered to comply with recommendations to stop collecting, sharing images,” December 14, 2021, https://www.priv.gc.ca/en/opc-news/news-and-announcements/2021/an_21121….
- 17“Douez v. Facebook, Inc., 2017 SCC 33,” June 23, 2017, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16700/index.do.
- 18“Demers c. Yahoo! Inc., 2017 QCCS 4154,” CANLII, September 19, 2017, https://www.canlii.org/en/qc/qccs/doc/2017/2017qccs4154/2017qccs4154.ht….
- 19“A.T. v. Globe24h.com, 2017 FC 114,” CanLII, January 30, 2017, https://www.canlii.org/en/ca/fct/doc/2017/2017fc114/2017fc114.html.
- 20Government 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….
- 21Daphne 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….
|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
Women, including journalists, activists, and politicians, have also reported facing online intimidation and misogynistic messages. A 2020 survey found that 62 percent of Canadian women aged 15 to 25 have been harassed or abused online.2 Reporting from August 2022, after the coverage period, noted an intensification in such threats against women. Women journalists, especially of color, shared anonymous emails they had received containing threats of violence and sexual assault and misogynistic and racist language.3
The highly praised 2016 landmark civil court decision—in which a man was ordered to pay C$100,000 ($78,000) to his former partner for publishing intimate videos of her without her consent, causing severe emotional distress—has grown in significance in recent years.4 Though the details of this case remained in flux following the early 2016 decision,5 the privacy tort of “public disclosure of private facts” that the judge’s original decision established has since been adopted in several courts. The new tort was applied in a 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; they were ordered to pay C$100,000 ($78,000) in damages.6 The new tort was also applied in a different province for the first time in September 2021, when the Court of King’s Bench of Alberta (then the Court of the Queen’s Bench) used the tort in awarding C$185,000 ($145,000) in damages to a victim of non-consensual distribution of intimate images.7
The 2016 case continues to be cited by other plaintiffs, authors, and courts.8 In December 2019, a court cited the “public disclosure of private facts” 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.9 Further, the recently 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 private material published without consent10 and to face criminal penalties should they not do so.11 Pornhub, a Montreal-based pornography platform, has faced numerous lawsuits in Canada and the United States accusing them of profiting from underage nonconsensual intimate images.12 In October 2021, the company settled one lawsuit in the United States brought forward by 50 women plaintiffs who alleged that the platform had knowingly partnered with a pornography provider that uploaded sexually explicit videos of the plaintiffs without their consent.13
Additionally, many provinces, including Manitoba14 and Alberta,15 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.16 By December 2019, Canadian police forces received nearly 5,000 complaints since nonconsensual sharing of intimate material was federally criminalized in 2014.17 In 2020 alone there were 2217 criminal incidents of nonconsensual distribution of intimate images.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….
- 2News 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….
- 3Christian Paas-Lang, “Chrystia Freeland latest target of public threats, intimidation against women in Canadian politics,” CBC News, August 27, 2022, https://www.cbc.ca/news/politics/harassment-women-public-life-journalis…
- 4“Doe 464533 v N.D., 2016 ONSC 541,” CanLII, January 21, 2016, http://canlii.ca/t/gn23z.
- 5“Doe v N.D., 2016 ONSC 4920,” CanLII, September 16, 2016, https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4920/2016onsc4920.ht…; “Doe 464533 v N.D., 2017 ONSC 127,” CanLII, January 9, 2017, https://www.canlii.org/en/on/onsc/doc/2017/2017onsc127/2017onsc127.html.
- 6Jane 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/.
- 7ES v. Shillington, 2021 ABQB 739, https://www.canlii.org/en/ab/abqb/doc/2021/2021abqb739/2021abqb739.html.
- 8Omar 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/.
- 9“Yenovkian v. Gulian, 2019 ONSC 7279,” CanLII, December 17, 2019, https://www.canlii.org/en/on/onsc/doc/2019/2019onsc7279/2019onsc7279.ht….
- 10Karen 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-….
- 11Christopher 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….
- 12Selena 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….
- 13Joe Lofaro, “Pornhub owner settles lawsuit with 50 women, including four Canadians,” CTV News, October 20, 2021, https://montreal.ctvnews.ca/pornhub-owner-settles-lawsuit-with-50-women….
- 14“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.
- 15“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.
- 16“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….
- 17Bonnie 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….
- 18Statistics Canada, “Incident-based crime statistics, by detailed violations, Canada, provinces, territories and Census Metropolitan Areas,” accessed March 27, 2022, https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510017701&pickMe….
|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, continuing to rise in number every year. During the 2020–21 period, the OPC received 782 data breach reports under PIPEDA, an increase of 15 percent from the previous period, that affected over 9 million Canadian accounts.1 Since a PIPEDA requirement that private companies report data breaches to the OPC came into effect in 2018, the number of reports of such breaches has increased by 600 percent.2 Whether the number of breaches is actually increasing or the mandatory reporting requirement has led to more accurate data is unclear.
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 A recent study indicated that one-quarter of Canadian businesses suffered a cyberattack in 2021,5 when the financial cost of data breaches to businesses hit an all-time high.6
In March 2022, a University of Toronto–based Citizen Lab report on digital transnational repression in Canada found that foreign dissidents and activists living in Canada, after fleeing their countries of origin to evade repression, had increasingly been the targets of hacking and phishing attempts and experienced takeovers of their social media and email accounts in recent years. Some reported having cut off contact with friends and relatives in their countries of origin out of concern for their safety in the face of such attempts.7
Major Canadian companies have recently been subject to cyberattacks and data breaches, including Lifelabs, Canada’s largest healthcare lab-testing company, and the Desjardins Group, one of Canada’s largest banking groups.8 An OPC investigation found that Desjardins had violated numerous provisions of PIPEDA in their treatment of customers’ personal data.9 In September 2020, major Canadian e-commerce company Shopify was a victim of data theft by its own employees.10
In 2020, 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.11 Experts warn that increased online activity during the pandemic, such as shopping, led to a massive increase in vulnerable online personal data,12 which was also stressed in a report by the government’s Canadian Centre for Cyber Security.13 The Centre for Cyber Security report also cited state-sponsored actors from China, Russia, Iran, and North Korea as the greatest strategic cybersecurity threats to Canada.14 Ransomware attackers have increasingly targeted critical infrastructure, emergency medical services, and law enforcement agencies throughout the pandemic.15
Cyberattacks and data breaches have also affected federal government agencies and actors. 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,16 which led the CRA to lock out 800,000 Canadians from their accounts as a precautionary measure in March 2021.17 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.18 While the OPC saw the number of data breaches reported from government agencies fall in 2020–21, it “remain(s) convinced that under-reporting by federal government organizations represents a systemic problem.”19 Even the computer system of the governor general (Canada’s official head of state) was hacked during the coverage period.20
- 1See the 2020-2021 OPC Report, supra note 160.
- 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.
- 5Canadian Press, “A quarter of Canadian companies have been victims of a cyber attack in 2021: survey,” CTV News, February 7, 2022, https://montreal.ctvnews.ca/a-quarter-of-canadian-companies-have-been-v….
- 6Amanda Stephenson, “Cost of data breaches in Canada hit new record in 2021: IBM,” CTV News, July 28, 2021, https://calgary.ctvnews.ca/cost-of-data-breaches-in-canada-hit-new-reco….
- 7Noura Al-Jizawi, Siena Anstis, Sophie Barnett, Sharly Chan, Niamh Leonard, Adam Senft, and Ron Deibert, “Psychological and Emotional War: Digital Transnational Repression in Canada,” CitizenLab, March 1, 2022, https://citizenlab.ca/wp-content/uploads/2022/03/Report151-dtr_022822.p…
- 8Aidan Wallace, “Major data breaches in 2019,” January 1, 2020, Toronto Sun, https://torontosun.com/news/world/major-data-breaches-in-2019.
- 9PIPEDA Report of Findings #2020-005, December 14, 2020, https://www.priv.gc.ca/en/opc-actions-and-decisions/investigations/inve….
- 10“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.
- 11Sarah 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.
- 12“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….
- 13Canadian Centre for Cyber Security, “National Cyber Threat Assessment 2020,” November 16, 2020, https://cyber.gc.ca/en/guidance/national-cyber-threat-assessment-2020.
- 14News 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-….
- 15Canadian Centre for Cyber Security, “Cyber threat bulletin: The ransomware threat in 2021,” December 9, 2021, https://cyber.gc.ca/en/guidance/cyber-threat-bulletin-ransomware-threat….
- 16Rachel 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/.
- 17Rachel 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….
- 18Catharine 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.
- 19See the 2020-2021 OPC Report, supra note 160, “Privacy Act breaches” section.
- 20Raisa Patel, “Gov. Gen. Mary Simon’s office says its internal network was hacked,” The Toronto Star, December 2, 2021, https://www.thestar.com/politics/federal/2021/12/02/gov-gen-mary-simons….
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Global Freedom Score98 100 free
Internet Freedom Score87 100 free
Freedom in the World StatusFree