Senate Chamber, Canadian Parliament, Ottawa by Paulo O https://flic.kr/p/2bzA6Ae (CC BY 2.0)

Senate Chamber, Canadian Parliament, Ottawa by Paulo O https://flic.kr/p/2bzA6Ae (CC BY 2.0)

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“This Bill Reminds Me of the Maginot Line”: The Bill C-10 Debate Arrives at the Senate

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?

27 Comments

  1. Sen. Simons didn’t ask one question. They asked four linked questions.

    My answers are:

    1. I don’t know.
    2. Likewise.
    3. Yes (with allowances for dealing properly with hate crimes, child abuse, revenge porn, etc.).
    4. Yes.

    • Additionally, that reminder that we are now capable of putting out cultural content in hundreds of spoken and written languages to the whole world…and within our expected lifetimes, to off-world venues as well…does overturn the question somewhat.

    • Fortinbras says:

      Like many economic libertarians, Paula Simons declares that broadcasting regulation came into being because of a limited amount of broadcasting spectrum and the Canadian government’s consequent desire to ensure a wide array of content for listeners. This assertion lays the basis for her claim that the World Wide Web, by offering an “infinite” variety of options, renders broadcasting spectrum scarcity management and regulation obsolete. Although she provides a more balanced portrait of Bill C-10 than most advocates of Internet exceptionalism, her argument is based on a false premise.

      The link between spectrum allocation and Canadian broadcasting regulation has no historical basis – it is a theoretical deduction from the conventional economic model of a competitive market economy (which has, by the way, inspired the Telecommunications Act) and the theory of “public goods”. In fact, Canadian broadcasting legislation over the last ninety years has not made any reference to spectrum allocation as a policy objective. Nor have any of the major investigations into broadcasting (Aird Commission, Massey Commission, Fowler Commission, Fowler Report, Caplan-Sauvageau Task Force Report, Yale Committee Report, etc.) adopted Paula Simons’ posture.

      The purpose of the Aird Commission, for example, was “to determine how radio broadcasting in Canada could most effectively be carried on in the interests of Canadian listeners and in the national interests of Canada.” This is not to say that spectrum allocation was irrelevant in 1928 when the commission was established, but it was not, and has not since been, the primary objective of Canadian broadcasting regulation. According to the current Broadcasting Act, the primary objectives of the Canadian broadcasting system are “the maintenance and enhancement of national identity and cultural sovereignty” and “to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada”. Bill C-10 does not change these overall objectives.

      What is the legal nexus to regulate or curate programming from international companies, asks Paula Simons? Professor Pierre Trudel answered this question four years ago explaining why Canadian law applies to online activities taking place in Canada (https://www.ledevoir.com/opinion/chroniques/503133/internet-la-fin-du-mythe). Should Canadian consumers be free to choose to watch whatever they like from around the world without government Intervention? Well, yes, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Are we trying to impose a cookie-cutter model from the 1970s on a quicksilver medium that defies walls, barriers and national borders? No, like many other countries, we are trying to update broadcasting (and other) legislation from 1991 to accomplish Canadian cultural, political, social and economic objectives.

      Paul Simons also says that Bill C-10 does not limit free speech. She is right. But, the bill does not dramatically increase the potential for regulatory gatekeeping. Most of the supposed powers provided to the CRTC by Bill C-10 are in the existing Broadcasting Act. The bill provides a roadmap as to how to regulate the web giants who now form part of the Canadian broadcasting system, and prods the Commission to do so.

      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? (We’ll leave aside the particular problem of French-language broadcasting in Canada which Paula Simons ignores.) Here, the senator recycles the old conservative economic idea that government intervention in the marketplace should essentially restrict itself to taxes and subsidies. Unfortunately, as the experience of Canadian film and television producers demonstrated in the 1990s, focusing on exports does not work in the presence of significant economies of scale and scope, ownership and import entry barriers in foreign countries, winner-take-all effects and first-mover advantages.

      The legislation as currently written is alleged by Paula Simons to compel the CRTC to compel (sic) the streaming services to privilege specific kinds of Canadian content, with a degree of granular specificity that she thinks is completely out of reach of most of the platforms. This is completely false. Bill C-10 says only that “the Commission MAY, in furtherance of its objects, make orders imposing conditions on the carrying on of broadcasting undertakings that the Commission considers appropriate”. And the bill obliges the Commission to avoid imposing obligations on a class of broadcasting undertakings if doing so “will not contribute in a material manner to the implementation of the broadcasting policy”.

  2. lol reading that all gave me a bloody headache …its like putitng a bunch a mister mcgoo’s in a room to talk about potatos and someone says oranges are great and it sparks a discussion about is the colour really orange and why doe sit have to be orange…

    all i have to say is keep balthering about whatever and make it die…this is the worst legislation ive seen in 20+ years.

  3. I don’t buy the argument that Bill C-10 doesn’t regulate free speech. If your content is normally ranked as number 4 or 5, but Canadian regulations means that 10 results are ahead of you, then, on some platforms, your content would get relegated to the second page. That can mean the difference of a query netting you, say, 15% of the traffic and 0.7% of the query traffic.

    The argument effectively says, “It’s not censorship, we just ensure that your content will get buried under a mountain of other content we deem more worthy so that users will be unlikely to ever see your relevant result in a query.” If you are dependent on these platforms to earn a living (and some, in fact, do), then this might as well be censorship even though your content is still technically up. We’re talking the difference between 6,000 additional views and 30 additional views. This will have a devastating impact on creators – especially newer creators.

    Creators will have to hope that there is just a Canadian version of YouTube and a normal YouTube for the rest of the world (which is, at least, very probable). As a result, they will need to rely wholly on non-Canadian traffic to get their start. This will also impact what kind of content they produce. What’s the point of inserting a cute Canadian reference here and there when it’s people from the US, the UK, and Australia that are going to see it. Sure, some duel citizens might get the reference, but so few will understand that it will largely not be worth it.

    If you take the alternate approach of trying to just “make it” in Canada, you are severely limiting yourself. Instead of the world population to work with, you are working with a maximum of 37.6 million people. You’re not going to get every Canadian to watch your content and, as a result, you severely knee-cap the maximum reach you’re going to get because the content will have to be specifically tailored to fulfill Canadian the Canadian content requirements set out in this bill.

    • John Tillotson says:

      Agreed 100%.

      Article 19 of the Universal Declaration of Human Rights states that “everyone shall have the right to hold opinions without interference” and “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

      Any government entity that tries to control the “discoverability” or “ranking” of information is clearly interfering with the ability to “seek” or “impart” information and ideas.

      This is clearly a violation of the UDHR.

    • Fortinbras says:

      In Ontario, when you walk into a branch of the LCBO, Ontario wines are at the front of the store. This kind of visibility is a device to encourage discoverability and promote Ontario product and does not prevent you from buying French and Italian wines. One could claim, as Michael Geist does in regard to Canadian audiovisual content, that if a consumer wants domestic wine, he or she has merely to ask for it. But this ignores the promotional advantage of discoverability measures in regard to local content.

      The idea that discoverability requirements in Bill C-10 are a threat to Canadian creators is nonsense. If a Canadian creator’s content is Canadian, then it will be prioritized as a result of the bill’s provisions – if the web site is operated by a media giant. Otherwise, it will exempted because the CRTC is also enjoined to avoid imposing obligations on a class of broadcasting undertakings – where doing so will not contribute in a material way to the implementation of Canadian broadcasting policy.

      The CRTC already has a range of discoverability requirements for Canadian television such as the priority list for terrestrial digital programming undertakings (Canadian services are listed before non-Canadian services) and Canadian content requirements for the evening hours on linear digital television programming undertakings (to prevent Canadian content from being restricted to off-peak viewing hours). These kinds of requirements are a promotional device for Canadian content and do not limit or inhibit freedom of choice.

      • Bad analogy. There is a big difference between a government owned retailer showcasing Canadian wines and the government ordering companies to promote Canadian content.

        Another factor is the cost. The LCBO’s costs of displaying Canadian wines aren’t affected by where in the store the wines are put. Streaming companies will incur costs in order to meet the discoverability requirements. The costs will fall into two categories: software development, and customer service costs (including lost revenue) from dealing with frustrated customers.

        These costs can’t be estimated until we know how intrusive and onerous the discoverability requirements are. The more intrusive the requirements the greater customer frustration will be. You just have to look at the backlash Google and Amazon have faced because they turned the top half of the Android TV and Fire TV home pages into ads. The more onerous the requirements the greater the software costs. And we all know who ends up paying when costs go up.

  4. It’s illiberal garbage. They’ve just introduced Bill C-36, linked above, which redefines hatespeech as a strong dislike that offends. That will be enforced on the internet too. There are so many topics where someone will be offended regardless of what you say, so be prepared to never speak again if the Liberal Party wins. They need to change their to the Illiberal Prudery.

    • everyone get vaccinated so they have no rights to tell us nto to protest this is fucking bs laws one after the other

    • so if someone does something stupid and you say , i think that you are a moron for that” they get offended and now you goto prison for that….
      all because someone did somehting stupid? what the hell kind of society will we have if no one critsizes anyhting no more….mistakes will get worse and worse till we devolve into cave people again

  5. Senator Simons, with “questions” like this, is Michael “Right-wing Libertarian on the side of Big Tech” Geist’s new hero:

    “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?”

    Man, if you even have to ask that first question, let alone answer in the negative, you have just stated that you no longer believe in the sovereignty of nations or government regulation of anything: gun ownership, food processing, water filtration, motor vehicle licensing and use, labour health and safety standards, protection of minors . . . . It’s a very long list. Of course you regulate the internet within your own borders. An unregulated internet has brought us Russian bots spreading election disinformation to the rabble; the dark web where you can buy guns, drugs, people, you name it; the rampant theft of the work of Canadian creators and producers by mostly foreign agents, streamed back to us; and on and on. You people are the anti-abolitionists of the 21st centiry. Give your heads a shake.

    • Is Joe McCarthy one of your heroes? Cause it sure looks like it. You accuse everyone who disagrees with you of being a right-wing nut-job. It’s childish and uncreative – challenge the person’s argument instead of insulting them.

      Now for the rest of your post. Interfering in elections, selling guns, drugs and people, and pirating content are already illegal. The internet has made it easier to commit some of these crimes, but that doesn’t mean we need to sacrifice our rights in order to crack down on criminal activity.

      Also Bill C 10 has nothing to do with stopping criminal activity on the internet. It’s all about creating a two-tier content system on the internet. Who knows maybe the CRTC will order Pirate Bay to make Canadian content more discoverable. Would that make you happy?

      • Let’s see, Joe McCarthy is my hero, but I have it in for right-wing nut jobs. Right. You people need to work a little on your messaging. My point is there are virtually no arguments here to challenge – just a lot of whining about “Lieberals” and the fascist state come to take us all away and how Maxime Bernier is the man for the job (see previous Geist posts for some of these; the current one is actually relatively tame). And I’m childish and uncreative??

        • like say liberals using bill c-10 or say the ndp leader when he illegally didnt wear a mask and illegally hugged his relative on secret camera and you call him a moron( stupid) for doing it and he gets offended and you goto prison not him?

          this kinda messaging? cause ndp support now looks more and more liek WE’LL DO anything to keep getitng pay checks cause after next election if it dont get fixed were all done for…

        • Did you really just use one of Archie Bunker’s favourite phrases – “You People”. What’s next? Are you going to start calling people meatheads and telling them to stifle it?

      • And by the way, I was responding to the senator’s question, “should we even regulate the internet?” That is breathtaking coming from a . . . lawmaker. I pointed out a few places where indeed a society may want to regulate the Internet. Geist, however, disagrees. Some day I’ll tell you all a few anecdotes about Geist from his younger days. He’s a dyed in the wool libertarian, just do whatever you want, a creed whose repercussions for the rest of us have been multiplied a zillion times in the past 10 or 15 years as a result of the Internet. (It used to be that libertarians were crackpots on streetcorners with sandwich boards. Now they are tech whizzes on the dark web.)

        • do you require everyhting to be regulated and thats some kind of shock to you?

          plenty a examples are things like if i dont liek the cable channel i turn to another…the issue now is that i dont like any of the cable channels and make my own content… and now others like that , and cable boys that geoerge supports dont like that….they want to punish me and others for being smart and gatehring audiences.

          do we still ahve rules ya , and if you are terrible you get people change that channel and your done.

          its same if your in fornt a me and you get lippy and mouthy i turn and walk about , however second you touch or continue to harrass me we already ahve laws on books for that , ENFORCE THEM….na dont want to do ya ? lets jsut palss laws making it so hard to say anyhitng wihtout a prison sentance that everyone shuts up…thats gonna help innvation and entertainment…again all this is charter violations on the majority and they use minorities as tokens to get it done …its disgusting.

    • george said …right wing libertarian….libertarians are more like centrists buddy, back to school with you ,,,,
      we have laws for the net about illegal activity …and crimes, what this does is like nazi germany did to news papers of the day which would be like todays internet , we will hand you rules to post your shit and if you dont we will fine and jail you …

      its facist…and if you think the itnerent has no regulation your full if it.
      ontario has a neat law that what i do our local laws apply…unfortunately , this law might not even stand up to jurisdiction issues let alone charter violations

  6. Interesting. The senator seems to be confused about a lot of things.

    https://www.cbc.ca/news/canada/edmonton/serenity-paula-simons-lawsuit-1.5294677

    • you are too see above , and ill add only person that cares is you….as long as they drag shit out till the bill dies. WE canadians the majority of us DO NOT WANT THIS OR BILL C-36

      • i will add if you think bill c225 , c10 , and c36 are so important lets have a referendum righ tnow over these 1984 style laws…lets jsut see make it an election issue i bet you and your lil friends are chickens to do that cause youd lose power

  7. Interesting. The senator seemed to be perplexed about a number of issues. This will also apply to the internet. There are so many issues where someone will be upset no matter what you say, so if the Liberal Party wins, be prepared to never talk again. They must switch to illiberal prudential policy.

  8. If you really want to understand the absurdity of this Bill consider this. A new report indicates that China increased cyber-attacks against Canada after the Huawei CFO was arrested. So instead of focusing on this very real threat to Canadian sovereignty this government has become obsessed with how easy it is to find Schitt’s Creek on Netflix.

  9. David E. Nelson says:

    “In a borderless digital world”

    The digital world is regretfully not borderless. Ever heard of geo-blocking?

    “Should Canadian consumers be free to choose, to watch whatever they like from around the world without government interference?”

    That question is beside the point. There are in fact domestic corporate interests interfering with Canadians’ ability to be free to choose international content providers, as these domestic corporate interests have purchased exclusive rights in Canada to distribute content from international providers.

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