Crystal Clear by Evan Moss (CC BY-NC 2.0) https://flic.kr/p/5nSnru

Crystal Clear by Evan Moss (CC BY-NC 2.0) https://flic.kr/p/5nSnru

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Why the Guilbeault Amendment to Bill C-10 Makes CRTC Regulation of User Generated Content “Crystal Clear”

For the past week, Canadian Heritage Minister Steven Guilbeault has promised to address widespread concern over Bill C-10, the Broadcasting Act reform bill. After the issue emerged as an increasingly prominent part of House of Commons debate, Guilbeault stated;

we also want to make sure that the content that people upload on social media won’t be considered as programming under the act and that it won’t be regulated by the CRTC. And that’s why we will be bringing forward another amendment that will make this crystal clear.

That statement was repeated on Wednesday by Prime Minister Justin Trudeau in the House of Commons:

We have clearly indicated that this is not about individual users or about what Canadians themselves publish online. As the Minister of Canadian Heritage said, we will propose an amendment to make this crystal clear to us and to everyone else.

Last night at a somewhat strange Canadian Heritage committee meeting, Liberal MP Julie Dabrusin brought forward the promised amendment. Only rather than confirming that the content that people upload on social media won’t be considered as programming under the Broadcasting Act, it does precisely the opposite. First, the new amendment does not restore the Section 4.1 exception that had been touted as a safeguard against regulating user generated content. Second, not only does the regulation of user generated content remain in place, but the amendment confirms the CRTC regulatory powers, including a new power specifically designed for social media. In other words, rather than backing down in the face of public criticism, the government is doubling down on its Internet regulation plans.

The amendment (G-11.1) adds to the list of CRTC conditions that it can impose on Internet companies by stating:

9.1 (1) The Commission may, in furtherance of its objects, make orders imposing conditions on the carrying 30 on of broadcasting undertakings that the Commission considers appropriate for the implementation of the broadcasting policy set out in subsection 3(1), including conditions respecting:
(i.1) in relation to online undertakings that provide a social media service, the discoverability of Canadian creators of programs”;

The amendments establish some limitations on regulation that restrict what the CRTC can do with regard to user generated content, but the overall approach is indeed “crystal clear.” User generated content is subject to CRTC regulation under Bill C-10 with the result that the content of millions of Canadians’ feeds on TikTok, Instagram, and Youtube will now be CRTC approved as it establishes conditions to mandate discoverability of Canadian content.

Regulating user generated content in this way will make Canada an outlier with respect to Internet regulation. As I discussed in an earlier post, even the European Union, which has extensive regulations, ensures that video sharing platforms are not subject to regulatory requirements to prioritize some user generated content over others. There is good reason to not regulate user generated content in this manner, as it implicates freedom of expression and raises a host of questions about how companies will identify what constitutes Canadian content, whether Canadians will be required to surrender more personal information to big tech companies as part of the new rules, and what requirements will be established for individual feeds.

In fact, Canadian Heritage officials removed any doubt about the implications of the amendment, telling MPs:

The amendment, what it would do, is in Section 9.1 of the bill, it would add an additional order making power for the CRTC that with respect to online undertakings that provide a social media service, that order making power would only be with respect to a social media service. It would give the CRTC the ability to make orders with respect to the discoverability of Canadian creators’ program.

Officials reiterated the effect in response to another MP question:

As we discussed beforehand, Section 4.1 was intended to exclude programming that was uploaded on social media by someone who isn’t affiliated to that social media. The motion that was tabled by Ms. Dabrusin defines what regulatory tools under 9.1 can be used vis-a-vis social media.

Guilbeault and the government promised to remove regulation of user generated content by the CRTC. Instead, yesterday it effectively confirmed that denials about the effects of the bill were inaccurate and left a regulatory framework in place. As Navneet Alang notes in the Toronto Star in a column critical of Facebook, on social media the right to speak also includes a right to be amplified and free to have an audience. That means we should be requiring greater algorithmic transparency from Internet companies, not substituting their choices for those crafted through government regulation.

43 Comments

  1. Fortinbras says:

    As usual, Michael Geist proceeds with a carefully chosen selection of facts that tend to support the polemic in which he is involved. In this case, he is ignoring important elements in the Bill C-10 dossier.

    Bill C-10 does not propose to extend the powers given to the CRTC by the current Broadcasting Act with regard to user-generated content. Such content is currently subject to the Act and potential CRTC regulation. (Up to now, the Commission has chosen to exempt from regulation digital media on the Internet.) As it now stands, Bill C-10 proposes to restrict the Commission’s existing authority by introducing an exception for social media users, within the definition of a broadcasting undertaking. The exception 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.

    It is therefore very clear that, if Bill C-10 becomes law, social media users would not be carrying on a broadcasting undertaking for the purposes of the Broadcasting Act. The removal of Section 4.1 from the bill does not change this. Yes, the CRTC would be required to interpret Section 2.1, but the bill’s intention is clear. As I said in my comment on Michael Geist’s 29 April blog, the issue that he (and the Conservative Party) have raised amounts to a tempest in a teapot.

    • Your comments remind me of the use of force expert used by the defense in the Derek Chauvin trial. He basically said ignore all the video a knee on a neck is not a use of force. You want us to believe this is a tempest in a teapot despite all the evidence it is not.

      • If a person is explicitly excluded from “carry[ing] on a broadcasting undertaking”, by this act, then they can’t be regulated, right? What’s the evidence to the contrary?

        I sincerely and earnestly want to be proven wrong here, but all I’ve seen is that social media *companies* can have what they “broadcast” regulated (whether that’s user-generated or not); individual people can’t.

        • Sean Cloutier says:

          Read section 9.1….the whole thing…I agree with Geist…the way it reads…you are exempt « unless »…you are not promoting a Canadian viewpoint, following the charter etc..

      • Fortinbras says:

        Si vous croyez aux preuves, David, je te propose de lire le papier de Pierre Trudel et Monique Simard dans Le Devoir du 5 mai : https://www.ledevoir.com/opinion/idees/600120/idees-pas-de-risque-pour-la-liberte-d-expression-avec-le-projet-de-loi-c-10

        • Actually the law does so indirectly by forcing social media to eliminate whole swaths of user generated content that isn’t Canadian enough. Further, professional vloggers could be viewed in an entirely different light than others. Does this mean, for example I’ll have to watch Colin Knecht’s woodworking vlog and not get to watch Tamar or Bourbon Moth simply because their addresses are south of the border? This may seem innocuous to you, but you had best understand – this regulation has broad implications, intended and unintended.

    • Sandy Crawley says:

      Fortinbras you bring a solid analysis. And there is nothing in C-10 that in any way precludes the desired advent of greater algorithm transperancy either ( as another response to your very sound précis posed as a binary choice as opposed to regulation. Predictably there are many readers of Professor Geist who share his seemingly fathomless belief that pure market forces are the only factor that ought to determine the future if internet applications.

  2. I wounder what this proposed law will have when we all are at the same time distributors of content and users, basically as irl. I’m guessing not a good effect.
    For example:
    -webtorrents when we’re all a node as user and server (no central server)
    -distributed search engines when we’re all a node as user and server (no central server)
    -federated social media where we’re all a node ….
    -p2p file share where we’re …
    -self-hosed “music server” and “video server” on our own personal devices shared through the internet for other to listen and watch.
    -mesh-networks

    • The sad truth is that everything you just said would completely go over the heads of these public officials. And let that sink in… This is how VASTLY unqualified most of them are.

      • Sandy Crawley says:

        You seem to be under the misapprehension that the internet is a public utility. I ought to be for certain. But it remains a private sector domain that puts profit over people. You are being played by digital oligarchs. Michael Geist’s intellectual conceit is a prime example of the naive academics whom they have hoodwinked all over the world. They understand manipulation of behaviour very well. Your interventions here prove it.

  3. Justa Reader says:

    So, either Trudeau is not in control, or it’s bad faith.

    Thank you for the “carefully chosen selection of facts that tend to support the polemic”. Proponents of the bill will hate an argument with evidence.

  4. Sandy Crawley says:

    Geist is flacking for Big Tech, a familiar role. Bill C-10 represents the best and most forward-looking proposed legislation to address the negative impact of unregulated media content that has been brought forward to date. The “public criticism” Geist refers to is his pwn bull-horn and the “Progressive” Conservative party drones who seek only to find fault and have no positive policy themselves to address the corrosive effect on Canadian cultural production of untrammelled access to Canadian homes.

  5. Any bill that can benefit Copyright Nazi’s is a bill worth destroying.

  6. Pingback: Canadian Government Doubles Down on C-10 User Generated Content Crackdown

  7. Sandy Crawley says:

    You both sound like Quanon loonies. It’s clear that you have no respect for intellectual property whatsoever. All spoils to brutal and rapacious surveillance capitalism and never mind the social cost as long as I can have everything for the price if a digital device and access to overpriced broadband eh?

    • Qanon libertarian trump-like far right, Nazi yadda yadda same old crap. Tired and old.

      You know what’s amazing Sandy… we’re now living in a pandemic, with botched government policies resulting in massive unemployment, inflation, general downturn in all directions, a likely economic nightmare… and yet copyright maximalists like yourself will still talk from the same script and push the same stupid laws, no matter the context. Doesn’t matter if it’s 2011 or 2021, 9/11, the Great Depression, the eruption of Yosemite, or World War 3, you’ll still be pushing these failed laws over and over and because of lobbyists these niche issues will continue to get an undeserved amount of the attention by governments… a fact made so blatantly clear by these COVID times with so many many more pertinent issues to attend to. I bet the millions of decimated small businesses and unemployed will be so happy to know the government pushed forward on legislation to help media conglomerates continue to enable adult pretenders and publisher middlemen while also making it that much harder for said-unemployed to use the internet to regain employment status doing innovative online work.

      • Always the same crap. The people who scream “copyright Nazi” are those who think they have som egod-given right to download what they want when they want, it’s a privacy issue dontcha know?

        One of their most tired rhetoricdal devices is “piracy is a good thing, because it will force dinosaur industries to come up with innovative ways to compete and make piracy redundant.”

        I’ve never yet heard them propose a concrete change to how cultural goods are made and sold which could compete with free stuff at the click of a mouse. I’m all ears.

        • Thanks George, it’s reassuring to read a voice of reason here. Grits’s irresponsible elision of the safeguards in section 2 of the bill amount to mendacity on par with Tucker Carlson on COVID vaccination. It is unconscionable.

        • Well George, it’s really simple to come up with a business model that can compete with free. There’s already two major industries that have succeeding in doing just that!

          First, look at the PC video game market, specifically Steam. By making it extremely simple, accessible, and affordable, they have put a massive dent in video game piracy. So much that there are tons of people whose game library is primarily composed of games they have bought but never even installed!

          Next up, look at the music industry. Napster and the like forced them to invest in streaming services, and with spectacular results! More people than ever have music subscriptions rather than pirating (myself included). It’s a better service in every way that the old method of buying albums.

          So your arguments don’t really ring true. You might want to do a bit more research next time before making such ridiculous claims!

      • Right, there’s a pandemic, so forget everything else. At least those things that would hamper my liberterian lifestyle if you changed anything. So I guess we forget about the environment, social and economic equality, global development, education reform, labour rights . . .

    • https://ca.linkedin.com/in/sandy-crawley-19ba4b3

      Sandy is a Former Access Copyright Director. Ignore the authoritarian troll.

  8. Pingback: COMMENTARY: Plans to regulate user-generated internet content are both worrying - UsCanTec

  9. Sandy Crawley says:

    Eric,

    “Online innovative work.” What are you talking about? Bit coin? Air B&B? Please advise. And your response above certainly confirms that you believe the legal concept of copyright is no longer useful. Right? And I am not a lobbyist, just a person who works in the field of creative production who observes that stealing creative works is counterproductive to say the least. Anti-copyright trolls always use the word innovation to describe the advantages of dispensing with copyright. Please bring some clarity to this overused misnomer if you can.

    • It’s pretty clear from the subject that it’s content creation but clearly you’re trying to move the conversation away from that. Typical tactic, deny, deflect and distract.

  10. Sandy Crawkey says:

    Inline content creation? No one is forbidding that nor should they. And it’s not innovative 30 years after its advent. Please replace your ad hominem attacks with an example of the innovation that you think is hampered by C-10.

  11. left-wing says:

    Is it possible for a YouTube video containing footage of police brutality to be hidden for being too violent according to CRTC regulations, if multiple police officers report the video?

  12. Anything else the average joe can do to help oppose this absurd bill? I’ve already signed petition e-3379 on the House of Commons site.

    • Bossanova says:

      nope the government will do what it wants and doesn’t care about you they only care that your taxes get paid

  13. Sandy Crawley says:

    @Bossanova your short-sighted cynicism is puerile. You have my sympathy since you have been hoodwinked by Professor Geist’s technology triumphalism. Your response is robotic.

    • It’s one thing to be the victim of ad hominems, it’s entirely another to commit them and then pull the victim card.

  14. There is no country around the world that is doing what the Canadian government is trying to do. You are a shill Sandy. Your arguments are garbage. The bill should be scrapped completely. It is incredibly flawed, and the language is irresponsibly vague, and the only clarity provided reenforces what critics are saying. You’re selling out your own children and they will curse your name in the future – I promise you that.

    • Sandy Crawkey says:

      Right John. Although the EU and Australia have b gun to take necessary measures Canada’s Bill C-10 is a real and positive policy innovation in the direction of rebalancing the dangerous power of unregulated Bug Tech. They realize this too but are prolonging their robber Barron status as long as possible by manipulating people such as you through their mouthpiece Mister Geist.

  15. Ah the trolls awaken. Shilling for Vig Tech must be a thrill.

  16. Pingback: Heritage Minister Admits Bill C-10 Does Regulate User Content

  17. Pingback: Does Bill C-10 Target Big Tech or Civil Liberties? – IP Osgoode

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