Senate Chamber, Canadian Parliament Centre Block by Tony Webster (CC BY 2.0) https://flic.kr/p/ouR8kb

Senate Chamber, Canadian Parliament Centre Block by Tony Webster (CC BY 2.0) https://flic.kr/p/ouR8kb

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My Appearance Before the Senate Transport and Communications Committee on Bill C-11: The Senate Starts Review As Bill Receives House Approval

The Senate Standing Committee on Transport and Communications started its Bill C-11 pre-study yesterday just hours before the the bill passed third reading in the House of Commons. The bill quickly moved to first reading in the Senate, though at this stage it would appear that there will be just one more hearing involving departmental and CRTC officials before the summer recess. The House vote was widely expected as the government received support from the NDP on several occasions to limit debate. The Bloc and Green MP Elizabeth May also supported the bill, while it was opposed by the Conservatives and Green MP Mike Morrice.

I was pleased to appear before the Senate committee together with former CRTC Chair Konrad von Finckenstein as part of its first panel of the day. The questions and answers touched on a wide range of issues including discoverability and public support for the sector. My opening remarks are posted and embedded below:

Appearance before the Senate Standing Committee on Transport and Communications, June 21, 2022
 
Good morning. My name is Michael Geist. I’m a law professor at the University of Ottawa where I hold the Canada Research Chair in Internet and E-commerce Law and I’m a member of the Centre for Law, Technology and Society. I appear in a personal capacity representing only my own views.

I’d like to focus on two Bill C-11 issues today: the regulation of user content and the absence of thresholds that leads to an expansive regulatory approach. But before I do, I’d like to make two broader points.

First, I believe the House of Commons committee review was inadequate and the review that this committee is likely to be asked to undertake is therefore essential. While there is talk about the “equivalent of five weeks” of hearings, the reality is that in the race to rush through all witnesses in the span of a few days, many voices were excluded. These include indigenous perspectives such as APTN, community radio, and platforms such as TikTok and Spotify. Further, the imposition of a motion that limited full clause-by-clause review to a single day meant that over 100 amendments were voted on without public disclosure, debate, questions to officials, or the opportunity for sub-amendment. In fact, we will never even know the contents of many of those amendments.

Second, I would like to emphasize that criticism of the bill is not criticism of public support for culture nor of regulation of technology companies. I think public support for culture is valuable and that one of the core problems in this area is that our current Cancon rules are not aligned with our policy objectives. Further, I agree with former Supreme Court Chief Justice Beverly McLachlin, who recently noted with respect to the Internet platforms that there is a need for legislated transparency, accountability, and rules on data governance and privacy.

Given my limited time, I’d like to focus on two main issues this morning: Bill C-11’s regulation of user content and its over-broad regulatory approach and the need for greater certainty.

First, regulation of user content. When Heritage Minister Rodriguez introduced Bill C-11, he stated “we listened to concerns around social media and we fixed it.” With respect, many of the concerns remain intact. While the Section 4.1 exception for user content was reinstated, the addition of Section 4.1(2) and 4.2 – which together provide for the prospect of CRTC regulations on user content  – were added. The bottom line is that user content is treated as a “program” and the CRTC is empowered to create regulations applicable to programs that are uploaded to social media services.

The mantra we often hear that “platforms are in and users are out” is misleading. It is true users are not regulated like broadcasters, but their content is subject to CRTC regulatory power. This is not – as some government MPs have taken to dangerously say – “misinformation.” More than 1/3 of the witnesses who appeared before the House committee raised this as a concern, representing the overwhelming majority of comments on this issue. That included digital first creators, experts, industry associations, and Internet platforms. Further, CRTC chair Ian Scott confirmed that “[Section] 4.2 allows the CRTC to prescribe by regulation user uploaded content subject to very explicit criteria.”

You may ask why any of this matters. Some may tell you that the CRTC doesn’t regulate user content and isn’t interested in doing so. Yet the CRTC also says that it makes decisions based not on its interests, but rather on a public record. There are groups that want this content regulated – it wouldn’t be in the bill if there weren’t – and leaving the door open to regulation is a real risk, not a hypothetical one.

I want to be clear that the risk isn’t that the government will restrict the ability for Canadians to speak, but rather that the bill could impact their ability to be heard. The bill permits the creation of regulations on the “presentation of programs to the public” and since it treats all audio-visual content anywhere in the world as a program, the potential regulatory scope is vast. Those regulations identify but are not limited to discoverability, which has rightly attracted attention since applying it to user content it is both unworkable as we do not have a mechanism to determine what qualifies and potentially harmful to Canadian creators who may find their works harder to find globally.

The solution is obvious. No other country in the world seeks to regulate user content in this way and it should be removed from the bill because it does not belong in the Broadcasting Act. In the alternative, remove all regulatory powers associated with user content, but leave in the potential for contributions by the user content platforms.

Second, a few comments on the over-breadth and uncertainty with this bill, which as currently structured covers any audio-visual content anywhere in the world. As a Canadian Heritage department memo on the issue noted with then Bill C-10, that includes video games, news sites, niche streaming services, and workout videos. The government says some will be excluded in a policy direction, but won’t release the direction until after royal assent. Further, last week, government MPs voted down multiple amendments that would have established thresholds, including one as low as $25 million in annual revenue in Canada.

I believe there is a clear need for thresholds and limitations in the legislation itself. Without it, services may regard the regulatory uncertainty – which the House committee heard will take years to sort out – to block Canada, leading to less choice and higher consumer costs. If the goal is to target the large streaming services or to exempt video games or niche streamers, say so in the legislation. And while we’re doing that, borrow from the European Union approach of distinguishing between curated and non-curated services and use that as a way of establishing more targeted regulatory requirements or exemptions.

There is much more to discuss, but I’ll stop there. I look forward to your questions.

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