CRTC at Senate TRMC Committee, November 16, 2022, https://senparlvu.parl.gc.ca/Harmony/en/PowerBrowser/PowerBrowserV2/20221116/-1/11512

CRTC at Senate TRMC Committee, November 16, 2022, https://senparlvu.parl.gc.ca/Harmony/en/PowerBrowser/PowerBrowserV2/20221116/-1/11512

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Oops, He Did It Again: CRTC Chair Ian Scott Tries to Walk Back Bill C-11 Comments, But Officials Confirm Power to Regulate User Content is in the Bill

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.

12 Comments

  1. Scott in this situation humiliated himself, the CRTC, and the whole parliamentary process as he wavered between aggressively advocating the measure, arguing that was not his responsibility, and even oddly offering to design alternative modifications.

  2. Most of what Michael Geist says in this blog doesn’t hold up to serious scrutiny.

    Ian Scott performed reasonably well before the Senate’s Standing Committee on Transport and Communications on Wednesday night, all things considered. He was somewhat candid and showed restraint where it was necessary. I am not a big fan of his, but he accomplished what he set out to do – explain the CRTC’s view of Bill C-11 and why it is important…

    Neither Canadian Heritage, nor what Michael Geist dismissively calls “legacy creator groups”, have disparaged the so-called “digital creators” he enthusiastically celebrates. Digital “creators” are a part of the commercial landscape on the Internet and there is a place for them. But many of those that paraded in front of the Standing Committee do not seem to understand the basic elements of Bill C-11, and they are not being helped by tirades like the one above.

    Some of the Senators on the Standing Committee, much like Michael Geist and the digital creators, seem to want to read Bill C-11 in isolation from the Broadcasting Act. They examine Section 4.2, for example, on its own without reference to Section 9(4) of the Act. As the Commission’s General Counsel, Rachelle Frenette, briefly pointed out on Wednesday night, Section 9(4) says:

    “The Commission shall, by order, on such terms and conditions as it deems appropriate, exempt persons who carry on broadcasting undertakings of any class specified in the order from any or all of the requirements of this Part or of a regulation made under this Part where the Commission is satisfied that compliance with those requirements will not contribute in a material manner to the implementation of the broadcasting policy set out in subsection 3(1).”

    Section 9(4) doesn’t say the Commission “may” or “should” exempt persons who carry on broadcasting undertakings who do not contribute in a material manner to the objectives of Canada’s broadcasting policy. It says the Commission “shall” exempt them, meaning the Commission must exempt them. This is what has led to the myriad of exemption orders that the CRTC has issued over the years and Ian Scott made it clear that, with the amendments proposed in Bill C-11, he expects this tradition to continue.

    The very small players, including users and digital creators, have nothing to worry about. They will be protected by Section 9(4) of the Broadcasting Act, as they have been in the past. In fact, even if Sections 4.1 and 4.2 are removed from Bill C-11, as some intervenors have proposed, 99.99% of Internet users and digital creators would not be regulated if the Bill becomes law, because they would not contribute in a material way to the implementation of the objectives of the Act. In this sense, for all practical purposes, they are excluded from regulation by Bill C-11.

    As far as the “secret” talks with Heritage officials are concerned, as Ian Scott explained, the Broadcasting Act requires the Minister to consult with the CRTC before Cabinet issues a policy direction to the Commission (Section 7(6)). We could hardly expect this consultation to take place in a public forum.

    And Ian Scott was right in saying the CRTC does not regulate content. The CRTC’s decision on Radio-Canada’s radio program was made ex post as the result of a complaint by a listener, after the program had been aired. Radio-Canada was asked to apologize and to report on how it would do better in the future, but the segment at issue remained available online and via catch-up on the broadcaster’s web platform. This singular decision, misguided as it was, is hardly an example of widespread “content regulation” by the CRTC.

    • “… on such terms and conditions as it deems appropriate”. This is discretionary. Section 9(4) may as well say the Commission”may”.

    • What happens when a small player just doing random stuff gets a audience from 100 then ends up with 3 million players? it will affect him or her. Do you have a answer to that??

      • In and of itself, the size of the audience does not come into play. Section 4.2 of Bill C-11 essentially says that “users” could be regulated if the program (or activity) originates with someone already recognized as a broadcasting undertaking, or if the program (or activity) generates revenues. In this latter case, the revenues would have to meet the test of Section 9(4) of the Broadcasting Act in order to be regulated (i.e., be great enough to contribute in a material manner to the objectives of Canada’s broadcasting policy). In other words, no matter how small in the beginning, if a player grows into a media giant, then it could be regulated, but only then.

    • Your claim that 99.99% of digital creators would not be regulated is a guess. No one knows how many creators will be regulated because the rules will be established later, and no studies have been performed on the impact of the Bill on digital creators.

      Indirect regulation of digital creators will also happen under this Bill because of discoverability and Canadian content rules.

      YouTube will be regulated under this Bill and told to promote Canadian content. Will that content be from anyone who resides in Canada, or will it only be from CRTC certified Canadian digital creators? We don’t know, and no one from the government has answered that question.

      YouTube may also be told that a certain percentage of its content must be Canadian. If that happens it would act as a cap on the foreign content available on YouTube in Canada, including non-CRTC certified Canadian content.

      Maybe digital creators wouldn’t be worried if the Government took their concerns seriously. Instead, they’ve be lied to, lied about and told not to worry.

      • Discoverability obligations and Canadian content rules will not apply to users or digital creators, unless they are regulated. Only those users or digital creators who are behaving like web giants (less than one in a million total users) could be regulated. The YouTube activities that could be regulated will be the big revenue generating activities that qualify it as a web giant.

        The Canadian program certification rules that will apply to the web giants will be determined by the CRTC, after a public hearing. There will be no “cap” on the foreign programs that YouTube wishes to make available to the public.

        The House of Commons introduced Sections 4.1 and 4.2 to address the concerns of digital creators. If these sections are not enough, then it would be better to remove them both and leave the CRTC to determine what will work – in the light of Section 9(4) of the Broadcasting Act.

        • Digital creators have been asking for explanations of the purpose of section 4.2 and who it will apply to. All they get in response is empty platitudes. One day they’re told only 1 in 10,000 will be impacted, the next day they’re told only 1 in a million will be impacted. Well, which is it? Or will 1 in a 100 be impacted? Or 1 in 10?

          They’re also told don’t worry the rules will be determined by the CRTC after the Bill is passed. Why should they trust the CRTC when it has demonstrated a bias in favour of the telecoms and the media lobby?

          What are YouTubes big revenue generating activities? It has 37,000,000 active channels and hundreds of millions of users that post content. YouTube generates billions in revenue from placing billions of ads on that content. There aren’t any big channels or users that generate the bulk of YouTube’s revenue or act like web giants. So the question, once again, is what is the purpose of section 4.2 and how will it be applied.

          Canadian TV broadcasters have a requirement that 30% of the content they air be Canadian. Several groups have lobbied the government for a similar requirement be imposed on streamers including YouTube. If YouTube is told that 30% of its content must be Canadian then that will act as a cap on the amount of foreign content on YouTube.

  3. Just one more step to control us. Ask anyone from China or Russia if they would go back to a time before the Gov filtered their internet.

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