The long legislative road of Bill C-11 comes to an end later today as nearly 2 1/2 years after the original Bill C-10 was first tabled in the House of Commons by then-Heritage Minister Steven Guilbeault, the Senate will vote to approve the bill. I’ve been asked repeatedly this week about what now lies ahead, but I think it is worth one more look back. I have long believed that politics invariably involves compromise as governments look to maximize the political benefit and limit the political risk from any given policy. The emphasis on compromise is why stakeholders rarely walk away entirely happy on most issues that feature a diversity of views, whether it is copyright, privacy, or Internet regulation. Yet with Bill C-11, compromise from the government never came.
The lengths the government was willing to go to avoid compromise still astonishes me. Canadian Heritage Minister Pablo Rodriguez, who has largely avoided publicly addressing the bill ever since he was surprised by tough questions on it from Vassy Kapelos at the Prime Time Conference, spent months denying what was evident to anyone who took the time to read it (including the former chair of the CRTC, independent Senators, experts, and digital creators), namely that user content is subject to potential regulation in Bill C-11. There was no bottom to these false denials: indigenous creators were disrespected, opponents investigated, critics ignored, and debate repeatedly cut off with time allocation motions.
Once the bill arrived at the Senate, the bill was the subject of extensive hearings with many of the voices excluded at the embarrassing House Heritage committee review given a chance to voice their concerns. Rodriguez appeared before the Senate committee, but the Senators weren’t buying what he was selling. The committee picked actual evidence over vacuous spin and approved a compromise provision that addressed the government’s stated objectives and scoped out user content. The full Senate overwhelmingly approved the compromise.
While there was some hope that the government would accept it, Rodriguez made it clear to Kapelos that he never had any intent of accepting any compromises. His words? “There are amendments that have zero impact on the bill and other that may have some and we will not accept them.” Sure enough, the government did not accept the amendment, even though it was unable to provide a credible reason for the rejection. Once the bill was back at the Senate, Senator Marc Gold gave a lengthy speech on the reason for rejection, but got the law wrong and proved yet again that there is no sound policy reason for rejecting the compromise.
While there was no shortage of hyperbole throughout Bill C-11’s journey, the lingering question is why was the government so determined to retain user content regulation in the bill? When Bill C-10 was introduced, it was excluded. The decision to amend the bill by removing an exception on user content late in that bill’s process literally sparked years of opposition and concern. Many of the traditional Canadian Heritage stakeholders didn’t care about the issue at all. In fact, if you were to ask whether they would have preferred passing a bill without user content in 2021 or waiting until 2023 to get a bill with it in, my guess is they would unanimously take passing the bill two years ago over a delayed, contentious process that offers practically no additional benefits to the sector by including user content regulation. That leaves either the prospect that the government wants to retain the power to regulate user content (a real possibility) or that, egged on by a handful of largely Quebec-based culture groups, it was unwilling to admit that it had made a legislative mistake. If so, given the choice between Quebec-based lobby groups and admitting error or the myriad of opponents, the government preferred the appearance of being compromised over compromise.
So what now? Canadian Heritage Minister Pablo Rodriguez will undoubtedly reappear with the bill’s passage and his department will line up supportive comments from lobby groups to offer praise to the government for passing Bill C-11. The legislation will head to its next phase including a policy direction consultation that will seek to clean up at least some of the uncertainty in the bill (that Bill C-11 was subject to so much scrutiny yet still leaves so much unanswered is hard to explain), followed by years of CRTC hearings and appeals. Sometime in the future – best guess would be 2025 or 2026 – digital creators will have been forced to make multiple trips to Gatineau to urge a hands-off regulatory approach and the industry will find that the bill generates far less than it expected. Further, those modest benefits will be accompanied by revised Canadian content policies that will leave some doubting whether the trade-off was worth it. At that point, I expect the groups to look to the government to develop a compromise policy. There are no guarantees it will come.