Canadian Human Rights Act

1. Introductory information

The Canadian Human Rights Act (RSC 1985, c.H-6) provides protections, of human rights violations, to people in federally regulated sectors. It was enacted into law in 1977, and while it does not specifically mention deepfakes, we are not ruling out the possibility of it being applicable if the material depicted in a deepfake constitutes harassment or discrimination on protected grounds, such as race, sex, or disability.

2. Applicability of the Law

This Act recognizes the harmful use of deepfakes as it relates to hate, harassment, or discrimination against individuals or groups. The Act expressly recognizes the form and accessibility of distribution and use, and the impact on or harm to the individual or group being deepfaked, especially when it includes mocking, impersonations, or belittling, based on protected grounds. The Act does not include parody or satire unless they cause discriminatory harm and is primarily interested in the outcome, not the creation.

3. Key Provisions

• Actions That Are Allowed: Section 13 (prior to repeal) states “it is a discriminatory practice to communicate or cause to be communicated any matter that is likely to expose a person or persons to hatred or contempt.”
• Consent Requirements: Although the Act does not generally require consent for representation, the use of someone’s image for a discriminatory purpose could reasonably give rise to human rights issues.
• Platform Responsibilities: The Act does not generally impose direct obligations on digital platforms. But it does allow for complaints against a digital platform – if the platform publishes or facilitates content that discriminates.

4. Penalties & Enforcement

The potential remedies include orders to cease the discriminatory practice, public apologies, or compensation for damages. The Canadian Human Rights Commission has the power to investigate complaints, and may refer cases to the Canadian Human Rights Tribunal.

5. Important Cases or Precedents

Although they will not draw direct comparisons to deepfakes, “Warman v. Lemire” case illustrates the court’s ability to try to regulate online hate speech under section 13, before it was repealed. Current legislative proposals are now trying to re-evaluate aspects of the similar problem posed by digital content.

6. Comparison to Global Context

When comparing Canada to the U.S. regarding rights, the Canadian approach is a stronger focus on discrimination and the effect of deepfakes as opposed to free speech. On the other hand, there is no enforcement mechanism in Canada, similar to the AI Act in the EU, that addresses rights and AI specifically as it relates to discrimination.

7. Practical Considerations

If an individual is the subject of hateful deepfakes, they can file a complaint before the Canadian Human Rights Commission. Content creators should avoid creating content that subject individuals to derision that is based on legislative protected characteristics.

8. Future Outlook

The Canadian government is considering a revision to reintroduce hate speech laws and bring them into the modern world, making them applicable to digital and AI-generated content, including deepfakes.