Net neutrality has long stood as a foundational Internet policy principle for the current Liberal government. Prime Minister Justin Trudeau has regularly spoken in support of net neutrality, describing it as “essential to keep the freedom associated with the Internet alive” and claiming that he would defend net neutrality even as the U.S. backtracked by repealing net neutrality regulations:
“The idea of throttling certain sites or charging extra for certain services just does not make sense and if we’re going to continue to ensure that … digital technology and use of the internet is the lever to create economic growth and opportunities for citizens right across this country, we need to continue to defend net neutrality and I will.”
The government’s support for net neutrality has been signalled in many ways: it passed a resolution in support of net neutrality; Innovation, Science and Industry Minister Navdeep Bains affirmed “we support an open Internet where Canadians have the ability to access the content of their choice in accordance with Canadian laws”; and former Heritage Minister Melanie Joly used her speech on Canadian digital cultural policy in 2017 to note that “we stand by the principle of net neutrality.”
Yet Canadian Heritage Minister Steven Guilbeault is promising a series of reforms that will undermine a core principle of net neutrality and Bains is seemingly content to remain silent. The Guilbeault Internet regulation package will require all content providers to financially support the creation of Canadian content and ensure that the content is found and actively promoted on their sites and services. With respect to news content, Guilbeault has described linking to news articles on social media sites without a licence as “immoral” and promised regulatory or statutory action.
What does this have to do with the principle of net neutrality?
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 government’s policy plans envision a different intermediary – the Canadian government via the CRTC – to require sites and services to alter the content of their messages. In fact, the Broadcast and Telecommunications Legislative Review Panel that serves as the blueprint for some of the government’s plans 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.”
Internet sites and services will still be available to Canadians, but the government’s Internet regulatory framework will mean that Internet content will not be treated in a neutral, equal fashion. The mandated Canadian content discoverability and promotion requirements will mean that a government regulator will influence what Canadians see when they access services, not the sites themselves. Further, Canadians will be unable to access the version of the site or service of their choice as the only option will be the regulated, Cancon version mandated by the CRTC.
Similarly, news article sharing will not be treated equally. While the licensing of links will not alter the original content, it will treat the same link in an unequal manner. For example, this link to a Globe and Mail op-ed I wrote on broadcast regulation earlier this year will not require a licence, but Minister Guilbeault thinks this link to the same article on Facebook is immoral and apparently will require a licence. These same rules could be extended to this Reddit link or this Twitter link. The links all refer to the same article, but the Canadian rules could require licences for some, but not others.
The net neutrality implications of these cultural policies is not a new issue. As Melanie Joly was working on the government’s cultural digital policy, the possibility that net neutrality could conflict with preferential treatment of Canadian content was identified as a concern. Joly was adamant that equal treatment was the preferred approach.
Moreover, the CRTC examined the issue in 2017, when it was asked to consider whether Canadian content would not count against a user’s data cap as a mechanism to promote it. 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
In fact, 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
Altering content or raising costs through licensing to support Canadian content is precisely what Guilbeault and the government have in mind. In doing so, the government’s longstanding commitment to net neutrality will be badly undermined as it abandons the principle of equal treatment of content online.