Ian Scott Before Standing Committee on Canadian Heritage, May 31, 2022, https://parlvu.parl.gc.ca/Harmony/en/PowerBrowser/PowerBrowserV2/20220531/-1/37205

Ian Scott Before Standing Committee on Canadian Heritage, May 31, 2022, https://parlvu.parl.gc.ca/Harmony/en/PowerBrowser/PowerBrowserV2/20220531/-1/37205

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Clarifying the Clarification of the Clarification: Why Yet Another Upcoming “Clarification” from CRTC Chair Ian Scott Demonstrates the Risks of Bill C-11 and Government Interference

CRTC Chair Ian Scott returns to the Standing Senate Committee on Transportation and Communications tomorrow for yet another appearance on Bill C-11. According to multiple sources, the appearance came at the Scott’s request, who is seeking yet another chance to “clarify” his earlier remarks. I’m hardly one to criticize multiple committee appearances, but the continued effort to clarify earlier comments smacks of political involvement. Indeed, when combined with the controversial Section 7(7) of the bill, it suggests that the government envisions a permanent erosion of the independence of the broadcast regulator in Canada.

Scott’s adventure with Bill C-11 started with an appearance before the House of Commons Standing Committee on Canadian Heritage on May 18th, when he was asked about user content regulation by MP Rachael Thomas:

Thomas: So all these individuals are individual users creating content. It would appear that the bill does, or could in fact, capture them, correct?

Scott: As constructed, there is a provision that would allow us to do it as required.

Two weeks, later Scott was back before the committee with Liberal MP Chris Bittle asking Scott to clarify his comments on user content regulation:

Mr. Scott, to clarify comments from a few weeks ago at committee, you said that proposed section 4.2 would give the CRTC the power to regulate user-generated content. What did you mean by the term “regulate”?

A few weeks after that, Scott appeared before the Senate committee and Bill C-11’s chief supporter in Senate, Senator Denis Dawson, asked almost an identical question to clarify the clarification:

Mr. Scott, I want to clarify comments you made a few weeks ago about proposed section 4.2 that would give the power to regulate user-generated content. What did you mean by the term “regulate” at that time?

Funny coincidence the same question with nearly the same language used by the two government leaders at their respective committees weeks apart. Almost as if someone else wrote the question. Regardless, tomorrow Dawson or another Bill C-11 supporter will presumably ask Scott to clarify the clarification of his clarification. Scott will almost surely attempt to downplay the regulation of user content and algorithms in the bill. But his repeated comments merely reflect the provisions found in Bill C-11 and no number of clarifications will change that reality.

More troubling is what brings Scott, who supposedly has just six weeks left in his already extended term, back to committee for yet another clarification. It is hard to believe that there isn’t some external pressure and that potential interference in the workings of the broadcast regulator should set off alarm bells. That is particularly true given the inclusion of Section 7(7) of the bill, which has attracted increasing criticism for the political interference risks it creates. The issue was forcefully raised by Monica Auer during her appearance before the Senate committee and reiterated in this piece by Robert Armstrong. Armstrong notes:

Bill C-11 introduces an important amendment to Section 7 that would allow the government to direct the CRTC’s policies in detail. While the current Act limits the power of the cabinet to broad policy matters, subsection 7(7) of Bill C-11 expands this power to encompass a wide range of very specific CRTC activities. These include new powers to impose conditions on the operations of broadcasting undertakings, such as:

  • the proportion of programs to be broadcast that are Canadian programs and the proportion of time devoted to the broadcasting of Canadian programs;
  • the proportion of Canadian programs to be broadcast that are original French language programs, including first-run programs;
  • the proportion of programs to be broadcast that are original French language programs;
  • the proportion of programs to be broadcast that are devoted to specific genres, in order to ensure the diversity of programming;
  • 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.

These are only five examples of some 16 new conditions. Section 7(7) also allows the cabinet to issue directives related to regulations including:

  • prescribing what constitutes a Canadian program for the purposes of this Act;
  • respecting standards of programs and the allocation of broadcasting time for the purpose of giving effect to the broadcasting policy set out in subsection 3(1).
  • respecting the character of advertising and the amount of broadcasting time that may be devoted to advertising;
  • respecting the proportion of time that may be devoted to the broadcasting of programs, including advertisements or announcements, of a partisan political character and the assignment of that time on an equitable basis to political parties and candidates.

That is not all. Subsection 7(7) allows the government to specify the expenses to be incurred by operations of broadcasting undertakings, including:

  • developing, financing, producing or promoting Canadian audio or audio-visual programs, including independent productions, for broadcasting by broadcasting undertakings;
  • supporting, promoting or training Canadian creators of audio or audio-visual programs for broadcasting by broadcasting undertakings; or
  • supporting participation by persons, groups of persons or organizations representing the public interest in proceedings before the commission under this

This list of issues over which the government can intervene is stunning. Note that the discoverability provision is included in the list, meaning that the government is giving itself increased powers over decisions associated with how programs are presented on Internet streaming services, including Youtube, TikTok, and Netflix. 

If you are a Conservative supporter, would you be comfortable with Justin Trudeau’s cabinet intervening? If you are Liberal supporter, would be you comfortable with Pierre Poilievre’s cabinet intervening? If the answer is no – and I think it should be no regardless of political affiliation given the freedom of expression risks of government intervention – Section 7(7) represents an enormous problem. And as Ian Scott makes his way back to the Senate committee to clarify the clarification of his clarification, perhaps rather than trying to find another way for him to downplay regulating user content despite the plain language of the bill, the questions should focus on his views of the loss of CRTC independence as contemplated by Bill C-11.

2 Comments

  1. Melissa Choi says:

    This would be a good move to clarify the issues so that the public would truly understand.

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  2. This would be a smart approach to explain the concerns

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