The Senate Standing Committee on Transport and Communications held an exceptionally important hearing as part of its Bill C-11 pre-study (which is about to change into a Bill C-11 study) last night featuring Canadian Heritage officials and CRTC Chair Ian Scott. I will have a second post on the officials, who struggled to provide clear answers to basic questions on everything from how to identify what counts as Cancon for user content (Youtube’s Content ID was suggested) to the absence of thresholds for what is covered by the bill (there are no thresholds and the government wants the ability to also target small streamers). But the key moment of the day came in questioning Scott about the discoverability and the potential for algorithmic manipulation.
The government has insisted that algorithms are off-limits in the bill. For example, Canadian Heritage Minister Pablo Rodriguez told the House heritage committee:
Now, other people will say, “Oh my God, you’re going to play with algorithms.” No. It’s clearly written there that the CRTC cannot play with algorithms. Lots of things are said about the bill that have nothing to do with the bill.
From the moment the bill was introduced, I argued that the restriction on the CRTC making specific orders about algorithms was meaningless, noting:
the Commission may not tell the platform specifically how to adjust the algorithm but that is a distinction without a difference since it can issue orders on the end result as it is presented to subscribers or users.
Scott: It’s a very complex question. You’re looking for specifics. It is always dangerous or difficult for a regulator to tell you what we will do in the future. So I need to caveat my answer with that to begin. We will hold, we will issue notices, we will gather evidence. All Canadians, all forms of stakeholders will have an opportunity to give us their best advice and then we will render decisions that are in the public interest.
Miville- Dechêne: But you must have an idea of how this can be done.
Scott: I understand the question. I’m not trying to avoid it, I just wanted to clarify that we don’t bind ourselves by saying this is what will happen because we need to rely upon and develop the record.
But your question is important and well understood. You may be familiar with a report we were asked to produce by government some four years ago. We produced a report called Harnessing Change. In it, we outlined some of the issues that are now addressed in the legislation. One of the things that we talked about are the use of incentives. Also to reflect different lines of businesses, the rapid change that takes place. A lot of that can be characterized into saying we’re focused on outcomes. You quite properly put it as saying the desired outcome is to ensure Canadians can find Canadian music or Canadian stories. I think there will be a number of ways the industry can do it.
I’ll give you a simple example. Instead of saying – and the Act precludes this – we will make changes to your algorithms as many European countries are contemplating doing – instead, we will say this is the outcome we want. We want Canadians to find Canadian music. How best to do it? How will you do it? I don’t want to manipulate your algorithm. I want you to manipulate it to produce a particular outcome. And then we will have hearings to decide what are the best ways and explore it.
Scott’s comments confirm what Rodriguez has misleadingly denied and Bill C-11 critics have maintained for months: the bill’s discoverability requirements will obviously require algorithmic manipulation in order to prioritize Canadian content. The notion that the CRTC is only tinkering with algorithms indirectly rather than directly makes little difference given the harms that the regulation can cause to Canada’s digital creators who may find the algorithmic manipulation at home has disastrous consequences abroad. Given the confirmation that algorithmic manipulation due to regulatory requirements is absolutely a possible outcome of Bill C-11, it will be up to the Senate to fix the bill when it conducts extensive hearings in the fall.