Net Neutrality rally by Alistair (CC BY-NC 2.0) https://flic.kr/p/4RFiJd

Net Neutrality rally by Alistair (CC BY-NC 2.0) https://flic.kr/p/4RFiJd

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Not Neutral: Why the Broadcast Panel Report Weakens Net Neutrality in Canada

Net neutrality featured prominently in the launch of the Broadcasting and Telecommunications Legislative Review Panel in 2018 with the government release stating “the review will be guided by the principle of net neutrality and will explore opportunities to further enshrine in legislation the principles of net neutrality in the provision and carriage of all telecommunications services.” The panel report includes a section on net neutrality which affirms support for the principle and which features two recommendations – one calls for a policy objective in the Telecommunications Act “to reflect the duty to safeguard open Internet access in Canada” and a second that calls on the CRTC to increase data gathering and reporting on open Internet access policies.

While the panel is adamant that its report supports net neutrality (in a conversation I had this week with panel chair Janet Yale for an upcoming Lawbytes podcast, she strongly rejected the notion that it weakens net neutrality), its definition, which speaks of the right to access and distribute lawful information and content, represents a narrowing of the CRTC approach, which expressly did not limit its application to lawful content.

More notably, there is a strong case to be made that recommendations to promote Canadian content are inconsistent with the core principles of net neutrality in Canada. Net neutrality in Canada is largely derived from two provisions in the Telecommunications Act: Section 27(2) on unjust discrimination:

No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage.

and Section 36 on the content of messages:

Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.

Taken together, the provisions form the bedrock of net neutrality in Canada by prohibiting powerful intermediaries (namely ISPs) from using their position as network providers to give themselves an undue preference (eg. grant a preference for their content over third party content) or interfere with content that runs on their network. The CRTC used these provisions to establish the Internet Traffic Management Practices of ISPs in 2009 and the Differential Pricing Practices decision in 2017.

While the focus of net neutrality is rightly on telecom companies, the panel’s recommendations envision using a different powerful intermediary – the Canadian government via the CRTC – to require sites to alter the content of their messages. Ironically, the panel specifically warns of the risks to net neutrality principles by other intermediaries, noting “other emerging issues that go beyond classical Internet access have much in common with the goals of net neutrality.”

The panel cites smartphones, tablets and set-top boxes, but a better example are its own recommendations on discoverability requirements for media content undertakings that may include streaming services, social media companies, and news aggregators. For streaming services, the panel recommends the CRTC have the power to require catalogue or exhibition requirements (ie. Cancon requirements), prominence obligations, and a requirement to offer Canadian choices. For news aggregators and social media sites, there would be a requirement to link to trusted Canadian news sites (as determined by the CRTC) and prominence rules to ensure visibility and access to such sources of news.

The sites and services may still be available to Canadians (the panel does not recommend blocking), but those sites do not have the full freedom to choose their content nor the manner in which it is displayed. The same limitation applies to end users, who will have no alternative but to access the CRTC-approved version of the site or service, not necessarily the version they would prefer. For example, consider a Canadian subscriber who would prefer to access Reddit with links supplied by users, not those required by the CRTC. Alternatively, think of a Netflix subscriber that believes the Internet streaming service will do a better job than the CRTC of identifying and displaying the content they might want to watch. In these cases, the implementation of content and discoverability requirements would mean that it is the government that would influencing the content since sites would face severe penalties for non-compliance.

In fact, the CRTC addressed the issue of whether promoting Canadian content through differential pricing would be a net neutrality violation in 2017. The idea – floated by the Canadian Media Producers Association – was that ISPs could ensure that Canadian content would not count against a user’s data cap (a practice known as zero rating). The Commission rejected the idea:

Given all the drawbacks and limitations of using differential pricing practices as a way to support and promote Canadian programming, the Commission considers that any benefits to the Canadian broadcasting system would generally not be sufficient to justify the preference, discrimination, and/or disadvantage created by such practices

Moreover, the CRTC also addressed the applicability of Section 36 in the same decision:

certain differential pricing practices may require approval under section 36, such as those that require a content provider to alter its content or those that control the availability of content accessible by consumers

The CRTC decision was lauded by the Liberal government including then-Canadian Heritage Minister Melanie Joly, who stated afterward that “we profoundly believe in the freedom of the Internet and net neutrality and we are committed to it.” That position was reaffirmed with the launch of Creative Canada and in comments from Prime Minister Justin Trudeau and ISED Minister Navdeep Bains.

Yet despite the CRTC position, the government’s support for net neutrality, and the panel’s own warning that net neutrality goals extend beyond classical Internet access, it is seeking to require a content provider to alter its content in order to comply with proposed rules to promote Canadian content. Simply put, that is not consistent with the principles and application of net neutrality in Canada. Given the government’s longstanding commitment to net neutrality, it needs to clarify whether it believes that the principles should continue to apply in the case of promoting Canadian content and if it will expressly reject proposals that weaken net neutrality in Canada.

5 Comments

  1. Netflix is not an ISP, it is a television programming service, not unlike CBS or HBO. Think of a Canadian viewer of CBS who believes that CBS will do a better job of identifying and displaying the content he or she might want to watch than the version of CBS seen in Canada with simultaneous substitution. This implementation of a content requirement set by the CRTC for the signal in Canada (simultaneous substitution) has nothing to do with net neutrality.

    • It has everything to do with net neutrality. Having the CRTC dictate to any company what content should be promoted or must be carried is the very definition of bias. The government doesn’t tell newspapers, movie theatres or book stores what to promote or what to carry, so why should it dictate what s streaming service should carry? The only reason for this is to benefit the few at the expense of the many.

  2. Stephen MacDonald says:

    As a modern Canadian citizen, I arguably produce content; I arguably broadcast that content via my website. My content includes writing, music, video, software, etc.

    I will not be registering for a license with a government beauracracy and I will not be adhering to content guidelines. I will not be paying fines. I will go to jail over this if I have to. I am non-partisan. I will fiercely campaign against any local political candidates who might take any action which will impede my, or anybody elses, right to freely create and distribute content however they might see fit. Please do not force me into that position. Disgusting that this even needs to be a conversation in a liberal democracy such as Canada.

    I take issues of censorship that seriously.

    Signed.

  3. Peter Menzies says:

    Thank you. A point I have been trying to make – albeit in a far more clumsy fashion – for years. For some reason people think that if government violates net neutrality it is benign. The opposite is the case.

  4. Pingback: News of the Week; February 5, 2020 – Communications Law at Allard Hall

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