Bill C-11’s defenders have typically dismissed concerns about the bill and its implications for freedom of expression as misinformation. When pressed to address the actual substance in the bill, they either insist (wrongly) that the bill excludes user content or, alternatively, that even if it is in, the CRTC is bound by the Charter and requirements to safeguard freedom of expression. The claims about the exclusion of user content from the bill have been exceptionally weak as any reasonable reading of Section 4.2 leads to the conclusion that content is subject to potential CRTC regulation (for example, TikTok has concluded that all videos with music are caught). That regulation can include conditions on “the presentation of programs and programming services for selection by the public”, which means the CRTC can establish regulations on the presentation of content found on Internet platforms (the suggestion that it can’t or won’t watch millions of videos has always been a red herring since it doesn’t need to with a broadly-applicable regulation in place).
With user content clearly in the bill, supporters also point to constraints on the CRTC to safeguard freedom of expression. Canadian Heritage Minister Pablo Rodriguez told the Heritage committee “the CRTC, whatever it does in regulations, has to respect freedom of expression.” Liberal MPs regularly echoed that position: Tim Louis stated “freedom of expression is protected under the charter and would be protected in the online streaming act” or Francis Scarpaleggia noted on Charter protections “it is here in black and white. It is in the law. We can tell the opposition not to worry about it, that it is in the law and that all these guarantees are laid down in the law, but they will not believe it.”
Witnesses such as University of Montreal professor Pierre Trudel said much the same:
In my opinion, we can’t really take these fears of alleged censorship seriously. The Broadcasting Act prohibits the CRTC from infringing on freedom of expression. Therefore, the CRTC could not take measures that would censor what users can put online. That seems to me to be completely out of the question. To argue that this could happen, one would have to assume that the CRTC would be violating the act. That is why, in my opinion, this hypothesis has no basis in fact. It seems to me to be totally unfounded. It is not even a question of intent, but rather of fabrication, since the act expressly states that it must be applied with respect for freedom of expression. So I don’t understand how anyone can continue to claim that there’s a risk that the CRTC will start censoring content, whether it’s user-generated content or any other kind of content.
Those assurances have been eviscerated given last week’s CRTC ruling on the use of the N-word on a Radio-Canada broadcast. The decision requires Radio-Canada to apologize, take steps to address the issue in the future, and potentially remove the segment from its website. As the two dissenting opinions in the ruling note, the CRTC does not even consider the Charter or freedom of expression in its decision. Rather, it concludes that the use violates the objectives of the Broadcasting Act and issues the order.
As I argue in this post, if the CRTC can ignore freedom of expression in this case, why not in cases involving Internet content? In an obvious parallel, Bill C-11 would give the CRTC the power to set conditions demoting or applying warning labels to content it considers contrary to Broadcasting Act objectives, which are so broad as to cover a wide range of lawful content.
Supporters of Bill C-11 who dismissed the freedom of expression concerns are suddenly now concerned the CRTC could become “the censorship police.” Trudel signed onto a public letter warning that the decision sets a dangerous precedent that could be applied to other media. Bloc MP Martin Champoux has called on Minister Rodriguez to order the CRTC to revoke the decision which he said sabotages freedom of expression, while Quebec’s culture minister Nathalie Roy called the ruling “a serious attack on freedom of expression.” For his part, Rodriguez tried to both-sides the issue and said it would not comment further until the deadline for an appeal has concluded.
The case – which the CRTC sat on for months and only released days after Bill C-11 passed in the House – is a wake up call that simply trusting the CRTC to safeguard freedom of expression is not good enough, particularly given government plans to hand it power over the content found on Internet platforms. The best way to ensure user Internet expression is properly protected is to recognize that it does not belong in the Broadcasting Act and for the Senate to remove any regulatory powers over it from Bill C-11.