The House of Commons may have adjourned for the summer (and likely longer given speculation about an election call), but the Senate plans to keep meeting until next week as it seeks to wrap up several bills, most notably the government’s budget bill. The ongoing Senate work also means that Bill C-10 is back. The bill received first reading on Tuesday, which meant that it was merely tabled in the Senate. The government asked for it to go to second reading the following day, but some Senators objected, which was supposed to delay the bill’s second reading until next week. To the surprise of many, yesterday there was seemingly a deal struck that allowed the bill to go proceed to second reading immediately. The bottom line on these Senate maneuvers: Bill C-10 received second reading from Senator Dennis Dawson, followed by a pair of speeches on the bill from Senators Tony Loffreda and Paula Simons. Everyone agrees that the bill requires significant study and should not be rubber-stamped. The speeches are likely to continue on Monday, after which the bill will be sent to committee. Given that the committee does not meet in the summer, an election call in the fall would kill Bill C-10.
Senator Dawson’s speech covered much of the same terrain as Canadian Heritage Minister Steven Guilbeault’s talking points on the bill. However, Dawson acknowledged that there are problems with the bill, stating “everybody recognizes the bill is flawed. Nobody is saying this is a perfect bill.” When this comes from the lead proponent of the bill in the Senate, you know that the bill faces a rough ride. Indeed, during the questions that followed Senators Wallin, Housakos, and Dasko raised questions about the bill’s implications for free speech, consumer costs, and potential harm to diversity. Senator Loffreda also raised the diversity issue during his speech, focusing on the impact on Canada’s ethnocultural and racialized communities.
But it was Senator Simons that stole the show with a speech that finally injected some realism into the Bill C-10 debate. The full 12 minute speech is embedded below and well worth your time. Senator Simons raised fundamental questions, such as the broad scope of the bill:
So here and now, precisely where does Canada find the legal authority, the moral right and, most importantly, the practical power to regulate the content of international streaming services that are not broadcast over Canadian airwaves? What is the legal nexus to regulate or curate programming from international companies? In a borderless digital world, should Canadian consumers be free to choose to watch whatever they like from around the world without government interference? Or should companies that operate in Canada and take money from Canadian customers be subject to Canadian regulation? That is the fundamental question at the heart of Bill C-10. Does it even make sense to try to regulate the internet? Are we trying to impose a cookie-cutter model from the 1970s on a quicksilver medium that defies walls, barriers and national borders?
Senator Simons also addressed the content and discoverability requirements:
Bill C-10 does not directly regulate the content of internet streaming services. It does not prohibit or regulate hateful content, fake political news or pornography. It does not give the Crown the power to take down your YouTube videos, your tweets or your Facebook posts because they’re not Canadian enough or not pure enough. Despite what you may have read or heard, this is not an act about censorship. It does not limit your free speech.
However, the bill does dramatically increase the potential for regulatory gatekeeping. It may, especially as recently amended, limit the services to which we’re able to subscribe. We can rightly debate the merits and demerits of that model. The bill, as very recently amended, imposes an absurd level of direction and specificity about how streaming services curate and display Canadian content. I think those amendments are fundamentally wrong-headed, and I think they misunderstand the meaning of discoverability and the functionality of algorithms, but that is not state censorship in the conventional meaning of the word.
Senator Simons closed with the following core question that is rarely discussed:
Is cultural protectionism still the fundamental model we wish to employ in 2021, or do we need a paradigm shift that puts the emphasis on preparing our tech and cultural sectors to be robust players on a global stage, taking outstanding Canadian content created in French, English, Mandarin, Inuktitut, Punjabi, et cetera, to the world?
I think many Canadians – including many creators – want the paradigm shift. But given that it took a Senator to even raise the issue after the months of debate, it is clear that the conventional cultural lobby and Guilbeault remains most comfortable with the old model of cultural protectionism.
The Senate provided some hope yesterday that there is still room for a forward-looking debate. Indeed, after Senator Simons concluded, she engaged in the following question and answer with Senator Housakos, which featured the kind of discussion that the government has tried desperately to avoid:
Senator Housakos: I would like you to comment on a couple of things. First, you’re absolutely right that this legislation doesn’t give the CRTC the power to take down content, but you would agree it gives the power to the CRTC to order platforms to bury content or take it down? We all recognize how powerful the web and the new platforms are today. On reflection, does this legislation show the divide between the archaic ways we have regulated broadcasting and where younger generations around the world and Canadians are in terms of content?
Senator Simons: I will answer the second question first because it’s easy. Yes, it does. That is absolutely what it does. No one under 30 watches television the way you and I did when we were growing up. You and I are of an age, and we consumed media in a completely different way than our children do, and goodness knows how our grandchildren will be consuming it. We need to have a regulatory framework that is nimble enough to respond to the quickly evolving technical platforms we have.
This bill reminds me a little bit of the Maginot Line, the way the French dug trenches so the cavalry horses would fall in the ditches, and then the Panzer tanks came along and the Maginot Line didn’t do them much good. We’re regulating to catch up with where we should have been 10 years ago instead of looking to where we need to be 10 years from now.
With respect to your first question, it is indeed my concern, not that the CRTC can take things down, but that the legislation as currently written compels the CRTC to compel the streaming services to privilege specific kinds of Canadian content, with a degree of granular specificity that I think is completely, frankly, out of reach of most of the platforms. It’s just not how they work. Their algorithms can’t be set to work that way.
It’s important to differentiate. I don’t think this bill censors or regulates speech, but I think it imposes nigh on impossible conditions for streaming platforms, some of which may simply pull out of the Canadian market, denying us choice. We all know that anyone under 30 will use their VPN to get the choice they want anyway, so what are we doing?