The Standing Committee on Canadian Heritage yesterday held a special hearing with experts to discuss Bill C-10 and concerns about the freedom of expression implications of regulating user generated content. I was pleased to appear before the committee and took questions from MPs from four of the five parties (only the Liberals did not ask me any questions). I have two posts on the appearance: this post features my opening statement and a second post links to a special edition of the Law Bytes podcast with the audio of my appearance.
The full text is posted below. There are at least three points emphasizing. First, no other country in the world uses broadcast regulation in this way, making Canada a true global outlier. Second, there is no evidence of a discoverability problem for user generated content. Third, the issue of excluding Youtube from the scope of the bill is open to considerable debate and was not even raised by CIMA in its written submission to the committee.
Appearance before the House of Common Standing Committee on Canadian Heritage, May 17, 2021
Good afternoon. My name is Michael Geist. I’m a law professor at the University of Ottawa where I hold the Canada Research Chair in Internet and E-commerce Law and I’m a member of the Centre for Law, Technology and Society. I appear in a personal capacity representing only my own views. I always start with that statement, but it feels particularly necessary in this instance given the misinformation and conspiracy theories that some have floated and that Minister Guilbeault has disappointingly retweeted.
As you are surely aware, I have been quite critical of Bill C-10. I would like to reiterate that criticism of the bill is not criticism of public support for culture nor of regulation of technology companies. I think public support for culture is needed and think that there are ways to ensure money for creator programs this year, not in five years like this bill. Further, I am puzzled and discouraged by the lack of interest in Bill C-11, which would move toward modernizing Canada’s privacy rules to help address concerns about how these companies collect and use our data. That bill would also mandate algorithmic transparency, which is much needed and far different from government mandated algorithmic outcomes.
I’ll confine my opening remarks to the Charter related questions and widespread concerns about the regulation of user generated content but would welcome questions on any aspect of the bill. There is simply no debating that by removing Section 4.1, the bill now applies to user generated content since all audio-visual content is treated as a program under the Act. You have heard experts say that and department officials say that. The attempts to deflect from that simple reality by pointing to Section 2.1 to argue that users are not regulated, is deceptive and does not speak to the issue of regulating the content of users.
I will speak to the freedom of expression implications in a moment, but must pause to note that no one – literally no other country – uses broadcast regulation to regulate user generated content in this way. There are good reasons that all other countries reject this approach. It is not that they don’t love their creators or that they want to avoid regulating Internet companies. It is that regulating user generated content in this manner is entirely unworkable, a risk to net neutrality, and a threat to freedom of expression. For example, the European Union, which is not shy about regulation, distinguishes between streaming services such as Netflix and video sharing services such as TikTok or Youtube with no equivalent regulations such as those found in C-10 for user generated content.
From a Charter perspective, the statement issued by Justice last week simply does not contain analysis or discussion about how the regulation of user generated content as a program intersects with the Charter. There is similarly no discussion about whether this might constitute a violation that could be justified, no discussion on the implications of de-prioritizing speech, no discussion on the use of terms such as social media service that are not even defined in the bill, and no discussion of the implementation issues that could require Canadians to disclose personal, location-based information in order to comply with new ill-defined requirements.
In my view, the prioritization or de-prioritization of speech by the government through the CRTC necessarily implicates freedom of expression. The Charter statement should have acknowledged this reality and grappled with the question of whether it is saved by Section 1.
I do not believe it is.
First, the bill as drafted with Section 4.1 in it was the attempt to minimally impair those speech rights. With it removed, the bill no longer does so.
Second, the discoverability policy objective is not enough to save the impairment of free speech rights. There is no evidence that there is a discoverability problem with user generated content. Ms. Yale’s panel, which notably appears to have lost its unanimity, recommended discoverability but cited no relevant evidence to support claims there is an issue with user generated content.
Third, the objective of making Youtube pay some additional amount to support music creation is not enough to save the impairment of free speech rights either. This isn’t about compensation, because the works are already licensed. This is about paying some additional fees given concerns that Section 4.1 would have broadly exempted Youtube. I’m not convinced that was the case as services such as Youtube Music Premium might well have been captured. I’m not alone on that- Canadian Heritage officials thought so too in a memo they wrote to the Minister. In fact, it was such a non-issue that Mr. Cash’s organization did not even specifically cite the provision or raise the issue in its brief that it submitted to this committee.
I find it remarkable that the Minister and the Charter statement effectively tell Canadians that they should trust the CRTC to appropriately address free speech rights, but are unwilling to do the same with respect to how Section 4.1 would be interpreted.
Let me conclude by noting that if a choice must be made – some additional payments by a streaming service or regulating the free speech rights of Canadians – I would have thought that standing behind freedom of expression would be an easy choice to make and I have been genuinely shaken to find that my government thinks otherwise. I look forward to your questions.
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Contrary to what Michael Geist declares, Bill C-10 does not apply to user generated content because individual users (as opposed to programming undertakings) are excluded from the bill. This is clear from Section 2.1 of the bill and to assert that users would be regulated is deceptive and does not speak to this section. The exclusion in section 2.1 is as follows:
“(2.1) A person who uses a social media service to upload programs for transmission over the Internet and reception by other users of the service — and who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them — does not, by the fact of that use, carry on a broadcasting undertaking for the purposes of this Act.”
So users of a service such as YouTube would not be subject to regulation by the CRTC, but YouTube itself potentially would be. What that regulation might involve is left to the discretion of the Commission, just as is the regulation of all other broadcasting programming undertakings. Like the Telecommunications Act, the Broadcasting Act, which sets out the CRTC’s mandate, is an objectives-based statute with an opening statement of policy declared by Parliament. Very few Canadian statutes contain lists of objectives that are meant to guide decision-makers to give them effect in this way.
To raise freedom of expression and Internet neutrality concerns in the context of Bill C-10 is also deceptive, unless one subscribes to a kind of Internet exceptionalism whereby any application of Canadian law to the Internet is a threat. Section 2(3) of the Broadcasting Act clearly states that “this Act shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings” and Bill C-10 does not change this. Under pressure from its Conservative members, the House of Commons’ Standing Committee on Canadian Heritage asked for an opinion from the Department of Justice and since this opinion concludes that the relevant considerations, as set out in the Canadian Charter of Rights and Freedoms, remain valid and that these considerations are not impacted by Bill C-10, Michael Geist rejects the opinion.
Those interested in net neutrality should read Professor Pierre Trudel’s article in the May 18 issue of Le Devoir (https://www.ledevoir.com/opinion/chroniques/602186/la-neutralite-du-net-demystifiee).
Discovery of Canadian content is not a problem, and is very easy to find online today, just put “Canada” in your search query and poof it’s there. C-10 serves only to prevent what Canadians find online, by forceful intervention.
So your argument is: individuals are unaffected, only their speech posted on the internet (eg YouTube) is going to be censored (or reshuffled, or de-prioritized, or made more or less “discoverable”) by the government. Have I missed some subtlety to your reasoning?
“This isn’t a bill to censor citizens; it’s a bill to censor the speech of citizens. Stop being so alarmist!”
If section 2.1 says: “and who is not the provider of the service”, there’s a present and future problem with it, maybe also narrow minder.
When we all become (some of us are already there), part of a p2p, mesh-network, decentralized search engine, decentralized video sharing, self-hosted services and the like, in which, by force of design, are simultaneously users and providers, wouldn’t this proposed law affect me/us all, no?
what a mess.
There will always be exemptions. The CRTC has issued various exemption orders for small players which do not make a significant contribution to the objectives of the Broadcasting Act. For example, broadcasting order CRTC 2015-88 exempts discretionary television programming undertakings serving fewer than 200,000 subscribers. So the Commission could adopt this kind of exemption order based on the number of subscribers (with a much higher threshold) for user generated program material from small user generated undertakings that are the provider of the service.
So Fortinbras, your argument is now, as I read it: “the government will have the power to censor everyone’s speech, but they might not always exercise it”. Is this supposed to be reassuring?
So as long as we don’t have big plans, stay small with small perspectives, no real/big ambitions, no real drive to be the best and biggest we’ll be ok?
What a great incentive to work hard, “bust” your head to make great things, be the best of the best. That when you actually make it, self entitled groups and governments swoop in to legiferate, tax, request or demand your money, force you to speek or censor, suck the life out of your project and who nows what else. Nice.
The CRTC currently has the authority to regulate activities on the Internet, but has chosen not to do so by exempting most such activities. Bill C-10 aims to prod the CRTC into regulating significant broadcasting activities on the Internet in the same way that it regulates such licensed activities distributed by cable, satellite or the airwaves. Censorship has never been practised by the CRTC and would not be if Bill C-10 were enacted. The Commission doesn’t preview programming and generally acts ex post, usually on a complaints basis, if a regulation or condition of licence has been breached.
Does size matter? Yes, it does. Just as income taxes and sales taxes are levied once the value of an economic activity reaches a certain threshold, so broadcasting activities on the Internet would potentially be subject to rules, once they reached a certain threshold. Activities on the Internet, whether economic, social, cultural or political, should be subject to Canadian laws on blasphemy, privacy, child pornography, taxation, broadcasting, etc. It’s as simple as that. No Internet exceptionalism…
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