Just one week after Canadian Heritage and CRTC officials provided assurances to a Senate committee that the Commission’s regulatory powers over freedom of expression were constrained by the Charter of Rights and Freedoms, the CRTC yesterday released a ruling in which the majority ignored the Charter altogether in regulating content on Radio-Canada. The decision signals how Bill C-11 could be used to regulate Internet content the CRTC deems contrary to Broadcasting Act policy objectives. It also continues a disturbing trend of revelations that have come in the aftermath of Canadian Heritage Minister Pablo Rodriguez cutting off debate to rush the bill through the House of Commons: officials later admitting that the $1B claim of benefits is merely an “illustrative” estimate, CRTC Chair Ian Scott opening the door to indirect algorithmic regulation, and now the release of a decision on content regulation that dates back to November 2020.
The CRTC decision involved a Radio-Canada broadcast that discussed a French language book which included the N-word in the title. A six and a half minute radio segment debated a petition that called for a Concordia professor who quoted from the book to be fired. The N-word was used four times. After a complaint was filed, a CBC Ombudsman found the segment did not violate journalistic standards. That finding was appealed to the CRTC in 2020. More than 18 months later, the majority of commissioners on the panel cited Broadcasting Act policy objectives in finding that the segment “goes against the Canadian broadcasting policy objectives and values.” It ordered Radio-Canada to apologize, develop internal measures to address the issue, and advise what it plans to do with the segment’s availability online.
The ruling features two dissents, which emphasize that the majority does not even consider the implications of the Charter. For example, Vice-Chair of Broadcasting Caroline Simard writes:
In my view, the majority decision departs from fundamental principles affirmed by the Supreme Court of Canada. Administrative decision-makers have a duty to consider the Canadian Charter when making their decisions. Once they have decided that an activity is protected, such as freedom of expression, they must consider the relevant legislative objectives and ask how best to protect the value(s) at stake enshrined in the Canadian Charter. However, the majority did not take into account freedom of expression as a value protected by the Canadian Charter and enshrined in the Act, nor did it assess this protection of freedom of expression in light of the full range of values and objectives enshrined in the Act and applicable to this case.
Commissioner Joanne T. Levy warns of journalistic chill, silencing discussion, and censorship. She echoes the Charter concerns, stating “the majority Decision errs by ignoring the fundamental right and freedom enshrined in section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter) and protected by the provisions of the Broadcasting Act.”
The issue is a hard one, but the fact that a majority of CRTC commissioners on the panel did not even consider the implications of the Charter and freedom of expression is shocking. Had they done so, it is possible they might still have arrived at the same conclusion. But failing to acknowledge the expression implications undermines assurances the CRTC can be trusted to safeguard fundamental freedoms. Indeed, the decision provides a roadmap for how similar analysis could be used in combination with Bill C-11 to exert significant regulatory power over Internet content.
How could that happen?
While it is true that Bill C-11 does not involve regulation of individual pieces of content (akin to a single radio broadcast), it gives the CRTC the power to establish regulations over programs, which are broadly defined to include all audio-visual content. Supporters of the bill have responded to speech regulation concerns by arguing that there are several safeguards in place: the scope of Internet content caught by the bill, limits on regulatory powers, and freedom of expression protections. Yet none provide much comfort to those concerned with Internet expression in light of a careful read of the bill and the implications of this CRTC decision.
First, as has been much discussed, Section 4.2 of the bill gives the CRTC the power to establish regulations over programs. The limits in the bill focus on whether the program generates direct or indirect revenues, has been broadcast on an online undertaking, and has a unique identifier under an international system. This is so broad that TikTok has concluded that it covers all videos on the platforms that include music. In fact, the limitation isn’t a limitation at all. The regulation requires the CRTC to consider those three factors in establishing regulations. That’s all. It doesn’t say the CRTC can’t consider other factors or simply ignore those factors after having considered them. Much like the lip service the Commission has given at times to policy directions, the CRTC is free under the bill to confirm that it “considered” the factors in setting the regulations and adopt a different approach.
Second, the CRTC’s regulatory powers are also broader than is generally appreciated. The regulatory power applicable to Internet content states the Commission may impose conditions respecting:
the presentation of programs and programming services for selection by the public, including the showcasing and the discoverability of Canadian programs and programming services, such as original French language programs;
This provision is the source of debate on discoverability and the potential harms to online creators. But note that the condition is not limited to discoverability, which is used as an example of the power. The actual power is conditions on “the presentation of programs and programming services for selection by the public.” Applied to user content, those conditions on the presentation of programs could include mandating outcomes that demote or apply warning labels to content the CRTC considers contrary to Broadcasting Act objectives, which are so broad as to cover a wide range of lawful content.
Third, yesterday’s CRTC ruling demonstrates that the freedom of expression safeguards can’t be relied upon either. Indeed, if the Commission believes it can rule on content without even considering the Charter, there is nothing stopping it from doing the same with Internet content where similar concerns involving Broadcasting Act policy objectives are at stake. As Commissioner Simard noted, “the majority decision ignored the applicable law and fell back on public policy objectives to uphold the complaint filed on 26 November 2020 with the Commission (the Complaint). Without legal foundation, the majority also imposed restrictive measures on Radio-Canada.” The ruling confirms fears that Bill C-11 could be used to regulate user content and that the assurances that there are sufficient safeguards against CRTC overreach do not withstand careful scrutiny.