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Tory Majority Gives Ottawa A Crack At Breaking The Digital Logjam

Appeared in the Toronto Star on May 8, 2011 as Tory Majority Gives Ottawa A Crack At Breaking The Digital Logjam

The election of a majority Conservative government has generated much speculation about the future of digital policies in Canada. It is hard to project precisely what will happen; given the number of open cabinet positions it is not known whether Industry Minister Tony Clement and Canadian Heritage Minister James Moore will remain in their portfolios or move elsewhere. If they stay the course, the Conservative digital policies are strong in a number of areas.

Concerns over the lack of competitiveness in the Canadian telecom market emerged as a campaign issue and a majority government may pave the way for removing foreign ownership restrictions in the telecom market. The Conservatives have consistently focused on improving the competitive environment and opening the market is the right place to start to address both Internet access (including consumer frustration over usage based billing) and wireless services.

Addressing the foreign competition issue will be only a piece of the bigger puzzle, however. The government has yet to set targets for universal broadband access and has been mum about the possibility of a set-aside for new entrants as part of the forthcoming spectrum auction. Answers to those questions may come from the much-anticipated digital economy strategy.

The Conservatives have a chance for some easy digital policy wins. Ending the Election Act rules that resulted in the Twitter ban on election night would receive support, as would maintaining their opposition to deeply unpopular proposals such as an iPod tax or new regulation of Internet video providers like Netflix.

On the hot button issue of copyright reform, it appears certain that Canada will pass a bill on the fourth try. The last bill had its flaws – the digital lock provisions went well beyond international requirements and undermined many consumer rights – but did a good job of balancing key issues such as fair dealing and the liability of Internet providers.

The Conservative platform included a promise to reintroduce Bill C-32 and with a few amendments (Clement spoke regularly about the willingness to consider changes), the bill would deserve broad support.

The Conservatives provide a good news, bad news story on privacy. A bill that featured the first round of reforms to PIPEDA, Canada’s private sector privacy law, died with the election call and could be quickly revived. It included mandatory security breach notification requirements, which have become increasingly relevant in light of the high profile privacy breach involving the Sony PlayStation network. Moreover, there will be a PIPEDA review later this year, which could lead to tougher penalties for privacy violations.

Much more troubling is the so-called lawful access package that raises major civil liberties concerns due to the new surveillance requirements and the mandated disclosure of Internet provider customer information without court oversight. The Conservatives promised to pass an omnibus crime bill within 100 days, meaning lawful access, which has been strongly criticized by all Canadian privacy commissioners, could be placed on the fast track.

As for the opposition, the New Democrats have been the most outspoken on issues such as usage based billing and net neutrality. Digital affairs critic Charlie Angus will be joined by many new colleagues, including Toronto-area MPs Andrew Cash and Peggy Nash, who bring experience on copyright and other digital policy issues. The Liberals put forward some good proposals on digital issues and some proponents, including Industry critic Marc Garneau, are part of their remaining caucus.

The majority government offers the opportunity to move away from years of policies driven by politics where little actually becomes law to one driven by policy that results in true legal reform. Given the last seven years of minority Liberal and Conservative governments that achieved so little on digital policies, the chance to get something done probably represents the biggest change of all.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at or online at

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