Bill C-34: An Act to enact the Digital Safety Act and the Digital Safety Commission of Canada Act and to make consequential amendments to other Acts

Bill C-34: An Act to enact the Digital Safety Act and the Digital Safety Commission of Canada Act and to make consequential amendments to other Acts

Tabled in the House of Commons, October 19, 2026

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-34, An Act to enact the Digital Safety Act and the Digital Safety Commission of Canada Act and to make consequential amendments to other Acts, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-34 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the bill. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter Statement.

The main Charter-protected rights and freedoms engaged by the proposed measures include:

Part 1 – Digital Safety Act

Duty to protect children

The Digital Safety Act would impose a duty to protect children on operators of regulated social media services, regulated chatbot services, and regulated online services. Children are defined as persons under 18 years of age. This duty would include an obligation to integrate design features respecting the protection of children that would be set out in regulation, and to implement age-verification or age-estimation measures that are adequate to mitigate the risk that children would be exposed to pornographic content and to prevent a person under 16 from having an account with, or being registered with, certain regulated social media services. As the duty to protect children may affect how and when certain content is accessible to users, the imposition of the duty has the potential to engage freedom of expression protected by section 2(b) of the Charter. As it makes a distinction based on age, it also has the potential to engage equality rights under section 15 of the Charter. As age verification or age-estimation measures could result in the collection of personal information by operators, their imposition could be perceived as engaging section 8 of the Charter. As noted below, the collection and use of such information would be governed by applicable legislation such as the Personal Information Protection and Electronic Documents Act which is the federal privacy law that applies to the private sector.

The following considerations support the consistency of the provisions of the act creating a duty to protect children with the Charter.  Regulations that prescribe measures would have to comply with the Charter and would be limited to measures respecting the protection of children. There is significant evidence that social media poses risks to youth, including privacy risks as well as risks related to problematic use and exposure to harmful content. There is also significant evidence about harms associated with exposure of young people to pornography. The definition of pornographic content captures only visual representations whose dominant characteristic is the depiction of a person’s genital organs or anal region for a sexual purpose, and so does not include, for example, educational or scientific materials, or written materials. The bill clarifies that the age measures do not require an operator to implement measures that unreasonably or disproportionately limit users’ expression. Further, courts have recognized that age-based distinctions are a common and necessary way of ordering our society, reflecting that such distinctions can be justifiable as long as the age chosen is reasonable, reflecting factors such as children’s vulnerability and maturity level.  The Digital Safety Commission (the “Commission”) would have the ability to establish guidelines respecting the protection of children, which would help in clarifying what measures would be considered adequate while responding to developments in social-science evidence and best practices.

With respect to age-verification or age-estimation measures, the legislation does not prescribe specific measures but includes a number of conditions that protect privacy interests. These include that any such measures are effective, that they only involve the collection of personal information for age-verification or age-estimation purposes, that this personal information is destroyed once age-verification is complete, and that this information is protected until it is destroyed. Protections for personal information, such as those under the Personal Information Protection and Electronic Documents Act, would continue to apply to operators who collect personal information in order to conduct age-verification.

Minimum Age Requirement

The bill would require operators of certain regulated social media services, to be specified in regulations, to implement age-verification or age-estimation measures designed to prevent a person under 16 from having an account with, or being registered with, the service. The Commission would be able to make regulations providing for specific measures to be taken. The Commission would have the ability to exempt a service from the Minimum Age Requirement if the Commission is satisfied that the service features adequate safeguards for the protection of children. As this measure would affect the ability of users to post and consume content, it has the potential to engage freedom of expression protected by section 2(b) of the Charter. As it makes a distinction based on age, it also has the potential to engage equality rights under section 15 of the Charter. As age verification or age-estimation measures could result in the collection of personal information by operators, their imposition could be perceived as engaging section 8 of the Charter. As noted below, the collection and use of such information would be governed by applicable legislation such as the Personal Information Protection and Electronic Documents Act which is the federal privacy law that applies to the private sector.

The following considerations support the consistency of this age requirement with the Charter. Courts have recognized that age-based distinctions are a common and necessary way of ordering our society, upholding them for example in relation to voting, drivers’ licences, and consent to medical treatment and sexual intercourse. There is considerable social science evidence about the risks posed to young people by social media use. These include risks relating to privacy, problematic use, and exposure to harmful content, and can result both from the consumption of content on social media, as well as the posting of content. For example, information posted by young persons on social media may be effectively impossible to remove from the Internet, may spread virally, may feed algorithms that encourage problematic use, and may make the poster a target for grooming and cyberbullying. The requirement is limited to having an account or being registered with a site, rather than anonymous browsing, reflecting the increased risks to young people that stem from the collection and use of data in feeding algorithms that determine content to be served, as well as risks that stem from the ability to post content. The ability of the Commission to exempt services that have demonstrated adequate safeguards provides flexibility, in that it would allow operators to take measures to address risks to young persons and thus be exempt from the minimum age requirement. The bill also clarifies that the obligations to implement age-verification or age-verification measures do not require the operator to implement measures that unreasonably or disproportionately limit users’ expression.

Duty to act responsibly

The Digital Safety Act would impose a duty to act responsibly on operators of regulated social media and chatbot services requiring them to adopt measures that are adequate to mitigate the risk that users of their services will be exposed to harmful content online. Harmful content would be defined as intimate content communicated without consent; content that sexually victimizes a child or revictimizes a survivor; content that induces a child to harm themselves; content used to bully a child; content that foments hatred; content that incites violence; and terrorism or violent extremism content. Services would have some flexibility to determine how to mitigate the risk. Additionally, regulated chatbot services would be required to take measures to mitigate the risk that the service will engage in specified types of harmful behaviour, including posing as a human being or otherwise being deceptive about being an artificial intelligence system; posing as a medical, legal or other licensed professional and giving advice based on that deception; using manipulative engagement techniques to encourage an emotional attachment that may encourage the user to withdraw socially or disconnect from reality; encouraging self-harm, suicide or the commission of acts that could cause death or serious bodily harm; or other types of behaviour specified in regulation. Regulated chatbot services would also be required to implement measures to interrupt their interaction with a user and direct the user to appropriate crisis intervention services where the user expresses a suicidal ideation, an intention to self-harm, or an intention to cause serious bodily harm or death.

The Commission would be mandated to determine the adequacy of the measures adopted by the operators of these services, including taking into account whether the measures are designed or implemented in a discriminatory manner within the meaning of the Canadian Human Rights Act. It would be open to the Commission to adopt regulations prescribing more specific measures for operators to follow. Where there is non-compliance by operators, actions could be taken by the Commission up to and including the issuance of an administrative monetary penalty. As the fulfilment of the duty to act responsibly by the operators may affect how and even whether the specified content appears on a service, and may affect how and whether a chatbot generates content in the course of its interactions with users, the imposition of the duty has the potential to engage freedom of expression protected by section 2(b) of the Charter.

The following considerations support the consistency of the operators’ duty to act responsibly with the Charter. The protection of freedom of expression is premised upon fundamental principles and values that promote the search for and attainment of truth, participation in social and political decision-making and the opportunity for individual self-fulfillment through expression. Some of the harmful content covered by the legislation, namely content taking the form of violence or directed towards violence or terror, or threatening violence, generally is not protected by the Charter. The remaining elements of the definition of harmful content in the legislation covers expression that lies far from the core of the guarantee of free expression, meaning it receives less protection under the Charter. Much of it undermines rather than furthers the purposes for which freedom of expression is guaranteed in the Charter. It poses risks of harm to other users, in particular members of more vulnerable groups, and jeopardizes other users’ own full participation in expressive activities and civil discourse online.

The objectives of imposing the duty include: having the risks of exposure to harmful content by users reduced in order to protect their safety, and reducing the harms caused to persons in Canada as a result of harmful content online. The Digital Safety Act would generally not take a prescriptive approach to the measures that operators should adopt in the expectation that a more flexible approach would enable operators to use their knowledge, expertise and innovation to effectively mitigate risks. The intent of the definitions of the several categories of harmful content is to capture only content that poses a risk of harm, while leaving out lower or no-risk content. The intent of the definitions of harmful behaviours, as well as the emergency measures, is to counter known risks associated with use of chatbots. The Act would not require operators to proactively search for harmful content posted by users. The Act also would not apply to social media services that do not enable users to communicate content to the public and would not require operators to address any harmful content that may be disseminated via any private messaging features of their regulated services. The Digital Safety Act would not impose direct consequences for users posting harmful content, beyond whatever measures operators may take to reduce the risks posed by their content. In other words, users would not be penalized, that is, convicted, fined or found liable in any way under the Digital Safety Act for posting content that poses a risk of harm. Any such consequences could be imposed separately under other statutes, such as the Criminal Code or the Canadian Human Rights Act, if content contravenes those statutes and proceedings are pursued under those statutes. As for the measures that an operator may adopt, the Act provides that operators are not required to implement measures that unreasonably or disproportionately limit users’ expression on their services.

Duty to make certain content inaccessible

In addition to the general duty to act responsibly, under the Digital Safety Act operators of regulated social media services would have the more specific duty to make inaccessible to all persons in Canada content that sexually victimizes a child or revictimizes a survivor, and intimate content communicated without consent, including deepfake images that fall under this category of content. Under this duty, operators of regulated services would have to make the content inaccessible if they become aware of it themselves in the course of operations or if it is flagged by users. When content is flagged, operators would need to make it inaccessible on a preliminary basis within 24 hours (or a different period that could be set out in regulation) unless the flag is trivial, frivolous, vexatious or made in bad faith, or duplicative of another flag. Those who post affected content as well as those who flag it would be provided the opportunity to make representations as to the character of the content before a final decision is made to make the content permanently inaccessible. Additional aspects of procedural fairness, such as notice of actions and decisions, and the right to request reconsideration of a decision, would also be provided. The requirement to make the specified content inaccessible has the potential to engage freedom of expression in section 2(b) of the Charter.

The following considerations support the consistency with the Charter of the duty to make certain content inaccessible to persons in Canada. Content that sexually victimizes a child or revictimizes a survivor and intimate content communicated without consent is expression that lies far from the core of the guarantee of free expression. Generally, expression that lies far from the core receives less protection under the Charter. Dissemination of some of this content, such as distribution of intimate images without consent, already constitutes an offence under the Criminal Code. The objective of the duty to make this content inaccessible when it has been flagged or otherwise comes to an operator’s attention would be both to mitigate the risk of harm to users and to the public caused by the dissemination of such harmful content online, and more specifically to protect identifiable individuals who are the victims of such content. Expression that degrades or dehumanizes is harmful in and of itself and members of society suffer when harmful attitudes are reinforced by the proliferation of such content. The dissemination of such content is also specifically harmful to the persons depicted, including to their privacy, mental health and dignity. The intent of the scope of the definitions of these two types of content is to capture only what poses a risk of the identified harms, while leaving out lower or no-risk content. The opportunity for interested parties to make submissions on a decision to make content inaccessible would provide a safeguard against errors in the interpretation or application of the definitions in less obvious circumstances. The Act would not require operators to proactively search for harmful content, nor to mitigate the risks posed by any content that may be disseminated via any private messaging features of their regulated services. The transmission of child pornography by private messaging is already prohibited under the Criminal Code.

Labelling of bot-disseminated harmful content

To address the specific role of bots in the proliferation of harmful content, under the Digital Safety Act an operator of a regulated social media service would be required to attach a label to bot-disseminated harmful content identifying it as such, if it has reasonable grounds to believe that the content is both the subject of multiple instances of automated communication on the service by a computer program, and is more prominent on the service than it would have been had it not been disseminated in this way. A requirement that operators attach labels to content has the potential to engage freedom of expression in section 2(b) of the Charter.

The following considerations support the consistency of the labelling requirement with the Charter. The objective of the measure would be to inform users that they are engaging with content whose dissemination is automated and amplified, and so not a product of popular and genuine human interest. Users could then choose to value the content accordingly, which could mitigate the manipulative effects of bots. The obligation on the operators would be limited to communicating factual information and does not require operators to remove or address automated communications in any other way.

Labelling of Synthetic Content

Under the Digital Safety Act, operators of regulated social media services would be required to implement adequate measures to label any synthetic content accessible on the service that meets the criteria provided for by regulations. Synthetic content, commonly referred to as “deepfakes,” means audio or visual representations made by electronic or mechanical means that are likely to be mistaken for an authentic recording. They would also be required to implement any specific labelling measures set out in regulations. Depending on the measures that are put in place, this requirement could engage freedom of expression guaranteed by section 2(b) of the Charter.

The following considerations support the consistency of this requirement. This obligation would not prohibit synthetic content but would assist viewers in assessing the content that they are consuming, by providing factual information. Labelling measures are less likely to constitute compelled expression for the user where the label is clearly attributed to someone other than the user. The scope of synthetic content that would be subject to the labelling requirement would be set out in regulations, which themselves would have to comply with the Charter. In determining the adequacy of measures, the Commission would look at not only the effectiveness of the measures in labelling synthetic content, but also their effectiveness in avoiding incorrectly labelling content as synthetic, i.e. avoiding “false positives.” The measure overall is aimed at addressing, in a tailored way, risks caused by the proliferation of synthetic content – which can include risks related to misinformation, disinformation, online fraud, interference in democratic processes, foreign interference, and the undermining, in general, of trust in digital media.

Commission complaint process

Under the Digital Safety Act, persons in Canada would be able to make a complaint to the Digital Safety Commission that content that sexually victimizes a child or revictimizes a survivor or intimate content communicated without consent is accessible on a regulated service, provided that they have first made their best efforts to seek recourse under the operator’s flagging and reconsideration mechanisms. When a complaint is made, the Commission would have to make a preliminary order to the operator to make the content inaccessible unless it determines that the complaint is trivial, frivolous, vexatious or made in bad faith, or duplicative of another complaint. The Commission would then proceed to finally decide whether there are reasonable grounds to believe that the content is as alleged. Users who post the content and complainants would be provided the opportunity to make representations before a final decision is made, as well as be provided notice of actions and decisions. The Act would also provide that the operator be provided notice of the complaint and decisions. If the Commission makes a final decision that the content in question is content that sexually victimizes a child or revictimizes a survivor, or is intimate content communicated without consent, it would have to give notice of its decision to the operator of the regulated service and would have to make an order requiring the operator to make the content permanently inaccessible to persons in Canada. Orders of the Commission would be subject to judicial review. The requirement to make this content inaccessible on a service has the potential to engage freedom of expression in section 2(b) of the Charter.

The following considerations support the consistency of the complaint process with the Charter. Content that sexually victimizes a child or revictimizes a survivor and intimate content communicated without consent lie far from the core of the guarantee of free expression. Generally, expression that lies far from the core receives less protection under the Charter. As with the duty to make such content inaccessible to persons in Canada when it has been flagged or otherwise comes to an operator’s attention, the purpose of the complaint mechanism would be both to mitigate the risk of harm to users and to the public caused by the dissemination of such harmful content online, and more specifically to protect identifiable individuals who are the victims of such content. Content that degrades or dehumanizes other people is inherently harmful, and individuals and groups suffer when harmful attitudes are promoted or reinforced by the spreading of it. The dissemination of such content is also specifically harmful to the persons depicted, including to their privacy, mental health and dignity. The complaint mechanism would provide an additional safeguard leading to an enforceable order from the Commission requiring that specific content be made inaccessible. It would provide an independent process for the determination of whether particular content must be made inaccessible. Under the Digital Safety Act, the only consequence to the person posting relevant content would be that their content would be made inaccessible. There would be no obligation on the poster to be identified or to participate in the complaints process. There could be other consequences for a poster under other statutes, including criminal liability under the Criminal Code for distributing child pornography.

Power to hold hearings in private

Any hearings the Digital Safety Commission decides to hold in relation to an operator’s compliance with the Digital Safety Act or related to a complaint that intimate content communicated without consent or content that sexually victimizes a child or revictimizes a survivor is accessible on a regulated service would be open to the public by default. However, a hearing could be held in private in whole or in part to protect important public and private interests, including national security, the interests of victims of harmful content, privacy and confidential business information. The existence of an authority to close adjudicative proceedings to the public in limited circumstances to protect sensitive information is well-established in courts and is a routine feature of administrative tribunals that deal with sensitive matters. The authority to close hearings to the public has the potential to engage the “open court principle” that is part of the guarantee of freedom of expression, which includes freedom of the press.

The following considerations support the consistency with the Charter of the Commission’s discretion to close hearings to the public. Like other Charter rights, the open court principle is not absolute and may be limited in order to advance pressing objectives. The proposed power to allow a closed hearing is limited to circumstances where the Commission considers that the protection of other interests outweighs the public interest in open proceedings. This could include circumstances where a person with a complaint about content that revictimizes them as a survivor of child sexual exploitation would be giving evidence. The exercise of the discretion to close a proceeding to the public would have to take into account the relevant interests at stake and strike an appropriate balance, including by limiting the use of closed proceedings to what is necessary to protect the countervailing interest. This could include keeping confidential the identity of a victim of child sexual exploitation, and hearing behind closed doors any of their relevant evidence that might reveal their identity while holding the remainder of the hearing in public.

Protection of identities of employees

Where an employee of an operator makes submissions to the Digital Safety Commission respecting harmful content that is accessible on a regulated service or the measures taken by the operator of a regulated service to comply with its duties under the Digital Safety Act, they would be able to request that their identity and any potentially identifying information be kept confidential by relevant Commission officials. Disclosure of the confidential information would be an offence. Prohibitions on persons’ liberty to communicate information may engage freedom of expression in section 2(b) of the Charter.

The following considerations support the consistency with the Charter of the prohibitions on the disclosure of confidential information. The purpose of the prohibition would be to protect the identity of employees of operators, such as whistleblowers for example, in order to avoid those employees facing potential negative consequences from their employers, in order to encourage employees to assist the Commission in its mandate to further the purposes of the Act. Making it an offence to disclose identifying information would provide some assurance to persons well-positioned to witness and understand operators’ non-compliance with the Act that they can come forward without risking their livelihoods or other retribution by their employers. The offence of disclosing identifying information would only be punishable by a fine, without the possibility of imprisonment.

Protection of confidential information

The Digital Safety Act would allow information to be designated as confidential by persons who submit it to the Digital Safety Commission or by the person to whose business or affairs it relates if the information is a trade secret or if it is financial, commercial, scientific or technical information that is confidential and that is treated consistently in a confidential manner by the person who submitted it or the person to whose business or affairs it relates. Relevant officials would be required to keep the information confidential, and its improper disclosure would be an offence. Prohibitions on persons’ liberty to communicate information may engage freedom of expression in section 2(b) of the Charter.

The following considerations support the consistency with the Charter of the prohibitions on the disclosure of confidential information. The purpose of the prohibition is to protect confidential business information from disclosure that could cause economic harm to its owners. The protection of confidentiality is a means to mitigate the commercial risk to owners of such information and the impact on their privacy that is caused by its necessary disclosure to the Digital Safety Commission to advance the purposes of the Digital Safety Act. The prohibition only applies to a disclosure that is likely to make confidential information available for the use of a person who may benefit from it or use it to the detriment of any other person to whose business or affairs the information relates. The commission of the offence would only be punishable by a fine, without the possibility of imprisonment.

Publication of notice of violation or undertaking

Where an operator of a regulated service is found to have committed a violation of the Digital Safety Act, the Digital Safety Commission would be able to order that operator to publish a notice setting out the facts of the violation. The same may be done in relation to any undertaking that an operator enters into with the Commission related to acts or omissions under the Act. A requirement that operators communicate information they may not otherwise choose to communicate has the potential to engage freedom of expression in section 2(b) of the Charter.

The following considerations support the consistency with the Charter of requiring operators to publish a notice of a violation or of an undertaking. Whether an operator would be ordered to publish would be at the discretion of the Digital Safety Commission. In exercising its discretion, the Commission would have to take into account any freedom of expression of an operator that may be affected and weigh it against the purposes of the Digital Safety Act in order to make a reasonable and proportionate decision. The only information that could be required to be published is factual in nature and relates to an operator’s non-compliance with statutory requirements. Relevant purposes of the Digital Safety Act in this context would include ensuring that operators are transparent and accountable with respect to their duties under the Act, including by informing users of the duties operators are obliged to fulfil and the consequences for any failures to do so as a way of enabling and facilitating greater accountability.

Regulatory inspection and enforcement powers

Generally, the Digital Safety Act would regulate and impose legal obligations on operators of regulated services, not on users of those services. To facilitate monitoring operators for compliance with the Act, including the investigation of complaints that certain harmful content is accessible on a regulated service and other administrative violations, the Commission would be granted routine regulatory powers such as the powers to summon persons to give evidence, to compel the production of information and documents from operators, and, with a warrant issued by a justice of the peace, to enter and inspect premises and anything relevant found in them. The exercise of such powers has the potential to intrude upon a reasonable expectation of privacy so as to engage section 8 of the Charter. The power to compel an individual, for example an employee of an operator, to attend at a specified place for oral examination under oath potentially engages the liberty interest under section 7 of the Charter.

The following considerations support the consistency of the compliance monitoring authorities with the Charter. The purpose of these authorities would be to monitor operators for compliance with the regulatory regime and to support administrative enforcement of the Act through orders and administrative monetary penalties, not to investigate offences with a view to imposing criminal sanctions. These authorities would not be available for the investigation of offences, which would need to be done by police relying on traditional criminal investigative tools such as a warrant under the Criminal Code. Generally, persons have a reduced expectation of privacy in the regulatory context and compliance monitoring activities such as inspections and demands for the production of documents relevant to regulating a business can be done without prior approval from a judge. Statutory powers to enter business premises, demand the production of business records, and compel information from business operators and their employees are routine in regulatory statutes and have been upheld as reasonable under the Charter. The Digital Safety Act would require a warrant issued by a justice of the peace for entry into any place for inspection purposes.

Power to grant access to data sets and information

In order to generate more information, transparency and arms-length scrutiny on matters related to the identification, management, and mitigation of risk on regulated services, the Commission would be authorized to give accredited persons access to an operator’s data sets and information. Access could be given to information that operators have already provided to the Commission, and the Commission could also order operators to give access to other relevant data. Enabling the Commission to give access to an operator’s data and information has the potential to intrude upon their reasonable expectations of privacy so as to engage section 8 of the Charter.

The following considerations support the consistency with the Charter of the proposal to give access to accredited persons. The objective would be to contribute to government and public understanding of regulated services to better enable holding them to account for the risks they pose. Organizations seeking such access could only be accredited if their primary purpose is to conduct research or engage in educational activities, and their research or engagement in such activities are related to the purposes of the Act. The Act contemplates the making of regulations by the Commission specifying conditions with respect to confidentiality, intellectual property, data security and the protection of personal information under which access to electronic data is granted. In exercising the discretion whether to grant access to an accredited person, including the nature and extent of any access, the Commission would have to take into account any privacy interest an operator of a service may have and weigh it against the purposes of the Act in order to make a reasonable and proportionate decision. An order granting access could also include conditions as to confidentiality to protect affected privacy interests.

Preservation of data

Where content that incites violence or terrorism or violent extremism content is accessible on a regulated service, and is then made inaccessible by the operator, the Act would require the operator to preserve that content as well as related computer data in its possession or control for one year. Related computer data could include data that would help locate or identify the user who posted the content. This information would not be automatically provided to the police. However, during the one-year period, it would be open to law enforcement and national security agencies to seek judicial authorization to obtain relevant information, relying on existing authorities such as a warrant. The requirement to preserve a user’s content and related data to facilitate access to it by law enforcement and national security agencies has the potential to intrude upon a reasonable expectation of privacy so as to engage section 8 of the Charter.

The following considerations support the consistency of the preservation requirement with the Charter. Some of the affected content, namely content taking the form of violence or directed towards violence or terror, or threatening violence, generally is not protected by the Charter. Actions by operators to address content that incites violence or terrorism or violent extremism content by removing it from their platforms could make it more challenging for law enforcement and national security agencies to investigate users or activities related to such content. An obligation to preserve relevant content that operators make inaccessible would help mitigate the negative impact on these agencies’ ability to pursue their important mandates to protect the public and address threats to national security. Operators would not be required to preserve content that was never made accessible on the regulated service. The only content that would be preserved would be content that users made public, and data related to that content. The Act would not authorize law enforcement and national security agencies to automatically access preserved content and data; the agencies could only access it pursuant to existing authorities such as a warrant. Operators would only be obligated to preserve the information for one year and would then be required to destroy it, unless subject to judicial order or if it would be retained in the ordinary course of business.

Administrative monetary penalties

The Commission would be provided the authority to inquire into the compliance of regulated services with the Act and regulations, and to impose administrative monetary penalties on an operator where there are reasonable grounds to believe that they have committed a violation. The Commission could impose a penalty in an amount up to a maximum of 3% of an operator’s global revenues or $10 million, whichever is higher. The provisions could result in the imposition of substantial monetary penalties for violations of the law, and therefore have the potential to engage section 11 rights.

The following considerations support the consistency of these provisions with the Charter. The proceedings leading to the imposition of an administrative monetary penalty would be administrative in nature. The purpose of any penalty would be to promote compliance with the Act rather than to “punish”, as that concept is defined for the purposes of section 11 of the Charter. There is no minimum amount that must be assessed against a violator, allowing the Commission to appropriately tailor the amount of any penalty to the purpose of promoting compliance with the Act. The Act, properly interpreted and applied, would not authorize the imposition of a penalty that could give rise to “true penal consequences” and so would avoid engaging the fair trial rights guaranteed in section 11. Finally, the civil enforcement of a penalty would be in the Federal Court of Canada and non-payment could not result in imprisonment.