Canadian Heritage Minister Steven Guilbeault and the Liberal government’s response to mounting concern over its decision to remove a legal safeguard designed to ensure the CRTC would not regulate user generated content has been denial. The department’s own officials told MPs that all programming on sites like Youtube would be subject to regulation, yet Guilbeault insisted to the House of Commons that user generated content would be excluded from regulation as part of Bill C-10, his Broadcasting Act reform bill.
However, based on new documents I recently obtained, it has become clear that Guilbeault and the government have misled the Canadian public with their response. In fact, the government effectively acknowledges that it is regulating user generated content in a forthcoming, still-secret amendment to Bill C-10. Amendment G-13, submitted by Liberal MP Julie Dabrusin on April 7th and likely to come before the committee studying the bill over the next week, seeks to amend Section 10(1) of the Broadcasting Act which specifies the CRTC’s regulatory powers. It states:
(4) Regulations made under paragraph (1)(c) do not apply with respect to programs that are uploaded to an online undertaking that provides a social media service by a user of the service – if that user is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them – for transmission over the Internet and reception by other users of the service.
The amendment is a clear acknowledgement that user generated content are programs subject to CRTC’s regulation making power. Liberal MPs may claim the bill doesn’t do this, but their colleagues are busy submitting amendments to address the reality.
But it is not just that the government knew that its changes would result in regulating user generated content. The forthcoming secret amendment only covers one of many regulations that the CRTC may impose. The specific regulation – Section 10(1)(c) of the Broadcasting Act – gives the CRTC the power to establish regulations “respecting standards of programs and the allocation of broadcasting time for the purpose of giving effect to the broadcasting policy set out in subsection 3(1).” While the government plans to remove that regulation from the scope of user generated content regulations, consider all the other regulations it intends to keep and impose on millions of Canadians. Regulations that are not found in the amendment and therefore applicable to user generated content include regulations include those involving the proportion of time devoted to broadcasting Canadian programs (10(1)(a) and what constitutes a Canadian program (10(1)(b)).
Each of these speak to potential new regulation on the free speech of Canadians. In fact, Section 10 regulation making power is only part of the story, since the Broadcasting Act’s Section 9.1 also contains a wide range of potential conditions. None have exempted user generated content. For example, Section 9.1(b) gives the CRTC the power to establish conditions on “the presentation of programs for selection by the public, including the discoverability of Canadian programs.” Since the government has brought user generated content within the scope of programs, this could include incorporating various policy objectives into the algorithmic choices of services such as Youtube, Instagram or TikTok. For millions of Canadians, it means their content could end up demoted or limited within the services as the CRTC gets in the game of establishing rules for what their feed looks like or how visible their content is to other users.
While it is difficult to know precisely how the CRTC will use its powers, there is now no doubt that Guilbeault and the Liberal government knew that the removal of the user generated content exception would establish the possibility of regulation. More troublingly, its forthcoming proposed amendment explicitly intends to keep many of those regulatory powers in place.