The controversy over the CRTC’s Radio-Canada decision involving its repeated use of the N-word has continued to grow with Quebec-based politicians – including the governing CAQ and the Liberal Party of Quebec – warning of censorship and calling on Canadian Heritage Minister Pablo Rodriguez to reverse the CRTC decision. The outpouring has left me struggling to reconcile the seeming hypocrisy of politicians who warn about the dangers of CRTC speech regulation even as they have been the most ardent supporters of Bill C-11, eager to pass resolutions that call on the federal government to enact legislation empowering the CRTC to regulate user content.
My initial take in a tweet was that this reflects a demand to protect their own speech even as there is a willingness to sacrifice the speech of others in return for a Youtube payoff. On reflection, however, I think there is more at play. Before explaining, it bears mentioning that months of assurances during the Bill C-11 hearings that the CRTC does not engage in speech regulation were patently false. For example, during the Heritage committee hearings, Liberal MP Chris Bittle asked CRTC Chair Ian Scott:
Has the CRTC ever regulated actual broadcast content—what is said or what is seen—rather than just its distribution?
No. We obviously attempt to ensure that the objectives of the Broadcasting Act are met. We don’t regulate individuals. We regulate broadcasting undertakings, and they abide by a regulatory framework that we establish. We don’t dictate content, neither what is broadcast nor what is watched, obviously, by Canadians.
Less than a month later, the CRTC issued its Radio-Canada ruling which quite clearly seeks to regulate actual broadcast content. Warnings about user content regulation were repeated again and again during the Bill C-11 hearings and dismissed as “misinformation.” Yet now we have Quebec’s culture minister urging Rodriguez to “bring the CRTC back into line”, calling its decision an insult and censorship. This raises the question as to why the right to use the N-word in a broadcast lights a fire of censorship claims but the prospect of tinkering with the visibility of the speech of millions of Canadians is dismissed as irrelevant.
I fear this points to a hierarchy of speech in which certain speech – that of some journalists and some creators – is valued by governments and lobby groups in a manner that the speech of other journalists, creators, and everyday Canadians is not. Those groups were untroubled by the massive expansion of the CRTC’s regulatory power because they felt confident it would never use those powers against the type of controversial speech the groups themselves are comfortable using. They presumed the CRTC shares their values – a presumption that is backed up by years of demonstrated ability to leverage the CRTC’s regulatory machinery (including its political oversight through the auspices of the Heritage ministry) to their advantage. The outpouring of anger over the Radio-Canada decision reflects the fear that the CRTC may not be what they thought it was.
In this particular case, I think it is entirely possible that both the CRTC and Radio-Canada are in the wrong: the CRTC for having failed to even consider the Charter of Rights and freedom of expression in its decision and Radio-Canada for having failed to identify ways to mitigate the harms that arise from the use of the N-word in its program. While I am well aware of the arguments about context, the word does evoke serious harm and it isn’t clear to me why an alternative would not have resulted in the same message and conveyed the same understanding. Yet government ministers now insist that any restriction on the ability to say the word in a broadcast is censorship and a regulatory disaster. In the hierarchy of speech, the right to say the N-word is apparently valued in a way that other speech – say criticism of Quebec – is not.
This hierarchy of speech may also help explain the seeming contradiction between rejecting CRTC regulation over Radio-Canada broadcast content yet welcoming such regulation when the content appears on Youtube or TikTok. While creator groups often profess to be strong supporters of freedom of expression, the reality seems to be that they are willing to accord less protection to digital-first creator speech, particularly if doing so might also mean greater financial support for their own speech or content. So while as a matter of principle, these creators would be loath to trade less visibility of their work in return for a bigger pot of potential financial support, they don’t mind if that burden is born by digital-first creators.
These views have been simmering below the surface for months and came to the fore during the Canadian Heritage arts summit in May at which some attendees openly derided digital-first creators. There were even hints of it with the Minister’s own comments about digital-first creators, in which he talked about these great, creative kids as if this was little more than a hobby to creators earning a living from their work and who have audiences that number in the millions.
This may also help to explain the extreme approach found in Bill C-18, which treats links or search indexing as “facilitating access to news” that merits compensation from Internet platforms to news organizations. As I noted when the bill was introduced, this approach risks undermining the free flow of information online which is so dependent on linking and indexing. Indeed, I argued that if some news organizations could demand payment for links, why not other websites or online sources? The answer coming out of the reaction to the CRTC Radio-Canada decision may be that the news organizations’ speech matters more than those other sources.
I have long hoped that if politicians could fully understand the potential harm caused by CRTC regulation to Internet content, they would seek to find ways to mitigate that harm by removing it from the bill. This week’s events ironically leave me less optimistic: even as lobby groups may now recognize the harms that can arise to their content from overbroad CRTC powers, I have doubts about whether they believe that the speech of everyday Canadians – as well as that of creators and journalists operating outside the creator lobby group tent – are deserving of the same protections.