CRTC Chair Ian Scott returned to the Standing Senate Committee on Transport and Communications last night, presumably hoping that his fourth House and Senate committee appearance involving Bill C-11 might allow him to say what the government clearly would like, namely that the bill will not lead to the regulation of user content. Yet Scott has failed each time, because the bill plainly does contain that power. In this instance, Scott embarrassed himself, the CRTC, and the entire legislative process as he demonstrably failed to defend the independence of the CRTC and zig-zagged between actively promoting the bill, claiming that was not his role, and even bizarrely offering to draft potential amendments.
Yet the moment that lingered the most from the session came toward the end as Senator Paula Simons became visibly angry over tiresome references from Scott to cat videos.
Simons is right of course. The hearings have placed the spotlight on an incredible array of creators who Canadian Heritage Minister Pablo Rodriguez and his officials either ignore or, in the case of indigenous creator Vanessa Brousseau, intimidate and disrespect. This conduct – shared in part by legacy creator groups who show similar disdain for these emerging creators – is shameful. There is a reason the government and those groups speak of Schitt’s Creek and not Gotta Love Trump (both Cancon) and cat videos rather than Brousseau (who goes by ResilientInuk) as they seek to diminish the value of digital creators and avoid hard questions about Cancon.
But I think Simons comment was about more than just cat video references. It was about how unseriously the government and the CRTC have treated this bill and its review. The House of Commons review involved limited witnesses and the government cut off debate, leading to over 100 amendments being voted on without even disclosing the contents. Rodriguez has engaged in gaslighting on the bill for months. Scott has now appeared four times on Bill C-11 and still doesn’t seem to understand how the platforms work. And yet faced with unserious, dismissive people far more interested in a political win than good policy, stands the Senate committee. Senators may not agree (an eye-opening argument even broke out between Senators Housakos and Dawson, who managed to attend both the committee and a SOCAN lobbying event on the same night), but they have provided a model for legislative review. They have heard from a myriad of witness, read countless briefs, and immersed themselves in a hard piece of legislation. Regardless of their views, they know the issues around content regulation in the bill are real. So when Senator Simons loses it over cat video references, it isn’t just anger over the attempt to equate serious creators fearing harm from legislation with videos of pets. It is frustration that if Senators and individual creators can take the time to do this properly, why can’t the government and the chair of the CRTC?
Indeed, round four for Scott shredded whatever was left of his legacy as chair. First, the issue of user content regulation. As per prior appearances, Scott tried to provide assurances that users were off the table. But then Simons asked directly about the interpretation of Section 4.2 and we were back to where we started, namely acknowledging the bill provides the power to regulate, but Scott – who is supposed to be out of a job in a matter of weeks – says he isn’t interested in doing so. As Simons responded, “it’s nice that you’re going to choose to interpret the bill in this particular way, but that’s not what the language says.”
This user content regulation exchange was just the tip of the iceberg. There were at least three other issues of particular concern. First, Scott’s utter failure to safeguard the independence of the CRTC and to recognize the appropriate boundaries for regulator and the legislative process. The issue of Section 7(7), which erodes CRTC independence, was raised. Scott admitted that it does exactly that, yet he has never raised the issue during repeated appearances. Can anyone imagine the Privacy Commissioner of Canada or the Commissioner of Competition remaining silent if the government were to chip away at their independence? In fact, in response to a request from Senator Dasko, Scott incredibly agreed to provide draft language to address the issue. One minute he’s saying it isn’t his role to comment on government legislation and the next he’s agreeing to draft it? Further, he claimed to be “perplexed and confused” about CRTC transparency concerns, but later admitted that CRTC officials have held (secret) talks with Heritage officials on elements of a policy direction, a further violation of separation of regulator and government.
Second, Scott was asked about his inconsistency on algorithmic regulation. While he tried to suggest that algorithmic regulation was not in the cards, he was again forced to acknowledge that it is in the toolbox of potential approaches. For example, when confronted with his earlier comments, he told Senator Miville-Dechêne “what I’m trying to explain is that’s a very narrow example. There are numerous ways to promote discoverability.” That isn’t a denial that algorithmic regulation is a possibility at all. Once the CRTC runs out of suggestions for discoverability, which apparently include billboard ads or even funding new content, the process may ultimately turn to algorithms. As before, he noted that he won’t require the algorithmic change, but that platforms will be required to meet certain outcomes. Could that involve algorithmic manipulation? It certainly seems so.
Third, Scott was asked about content regulation as Senator Housakos pointed to earlier Scott comments that the CRTC does not regulate content and asked how to reconcile the CRTC’s Radio-Canada decision, in which the CRTC ruled specifically about content on a radio broadcast.
Scott denied that the decision involved content regulation, instead suggesting it was about standards. The reaction in Quebec over the summer suggests few would agree. Yet if Scott believes that the decision did not involve content regulation, what does he mean when he says there will be no content regulation of user content? Is he simply going to take the same gaslighting approach by regulating and saying that it isn’t regulation? Given his interpretation, it is clear that Canadians need actual clarity in the law, because they got little last night from the chair of the CRTC.