Bill C-11 took a major step forward late last week as the government cut off debate yet again and forced a vote on an amended bill that rejected the Senate’s fix to concerns about user content regulation. The vote has sparked heated debates on social media, including mistaken insistence by some that the bill does not affect user content (it clearly does) or that it will censor what Canadians can say online (it will not). The reality is that Bill C-11 has important freedom of expression implications not because it will limit people’s ability to speak, but because government regulation may affect their ability to be heard. Given those implications – and the government’s inability to cite a credible justification for rejecting an amendment to address the problem by excluding user content from potential regulation – I believe the Senate should send the bill back to the House once more by restoring the amendment.

I recognize that some Senators are reluctant to repeatedly reject legislation passed by the House of Commons. As Senator Paula Simons stated on my Law Bytes podcast, some believe that the Senate pings, but it does not pong. There is good reason to respect the democratic principle that the elected house ultimately prevails. Indeed, I think there are many problems with the bill, including the likelihood that it will reduce consumer choice, increased costs, and have limited impact on the overall state of film and television production in Canada. However, those are policy choices on which people can disagree and which would not rise to the level of a repeat Senate decision to send a bill back to the House. That said, respect for democratic principles within the legislation is reason to call for more sober second thought. No democratic principle is more important than freedom of expression and Bill C-11 fails in this regard. Any bill that requires a government policy direction to provide guidance on regulating user expression has left too much uncertainty on the most fundamental of freedoms. The solution proposed by the Senate fixed this problem. The government rejected it without offering a credible explanation. Canadians – and the Senate – deserve better.

It is hard to believe this needs saying, but Bill C-11 definitively opens the door to CRTC regulation of user content. The government denials amount to trafficking in misinformation because the legislation speaks for itself. While Section 4.1 notionally excludes user content, Section 4.1 (2) creates an exception to the exception. That exception to the exception – in effect a rule that does allow for regulation of content uploaded to a social media service – says that the Act applies to programs as prescribed by regulations that may be created by the CRTC. The bill continues with Section 4.2, which gives the CRTC the instructions for creating those regulations. In particular, it says the CRTC can create regulations that treat content uploaded to social media services as programs by considering three factors:

• whether the program that is uploaded to a social media service directly or indirectly generates revenue
• if the program has been broadcast by a broadcast undertaking that is either licensed or registered with the CRTC
• if the program has been assigned a unique identifier under an international standards system

This scopes in a wide range of user content. TikTok videos with music or thousands of Youtube videos can be said to generate indirect revenue, the definition of broadcast undertakings now include online undertakings that may register with the CRTC, and unique identifiers can be found in all kinds of content. The government may have intended to cover certain sound recordings, but its poorly drafted provision goes much further.

With user content within scope, the CRTC is then empowered to establish regulations over that content:

The Commission may, in furtherance of its objects, make orders imposing conditions on the carrying on of broadcasting undertakings that the Commission considers appropriate for the implementation of the broadcasting policy set out in subsection 3(1), including conditions respecting:

(e)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 French language original programs; 

While most of the discussion around this provision focuses on the “discoverability of Canadian programs”, which may require algorithmic changes in response to CRTC demands to promote poorly defined Canadian content, the provision is actually far broader. It allows the CRTC to establish rules on “the presentation of programs and programming services” of which discoverability is but one example. The presentation of programs (programs covers all audio-visual content) could include warning labels for some content or other regulatory measures.

This approach understandably left the Senate concerned, particularly after the scope of regulatory powers was repeatedly confirmed by the then-chair of the CRTC and Canadian creators identified potential harms from the approach. The result was an amendment crafted by two Trudeau-appointed independent Senators: Miville-Dechêne and Simons. Their amendment re-worked Section 4.2:

(2) In making regulations under subsection (1), the Commission shall consider the following matters:

(a) the extent to which a program contains a sound recording that has been assigned a unique identifier under an international standards system;

(b) the fact that the program has been uploaded to an online undertaking that provides a social media service by the owner or the exclusive licensee of the copyright in the sound recording, or an agent of the owner

(c) the fact that the program or a significant part of it has been broadcast by a broadcasting undertaking that

(i) is required to be carried on under a licence, or

(ii) is required to be registered with the Commission but does not provide a social media service.

The goal of the amendment was to narrow the CRTC’s regulatory power to sound recordings uploaded to user content platforms and scope out other forms of user content, consistent with the government’s oft-repeated use case that a song that appears on both Youtube and Spotify should be treated in the same manner. Further, Simons pre-empted claims that the amendment created “loopholes” by convincingly demonstrating its “surgical” approach. The full Senate agreed and overwhelmingly passed the amended bill.

Yet once the amended bill returned to the House for approval, on the issue of user content regulation, Canadian Heritage Minister Pablo Rodriguez offered a flat rejection of an amendment narrowly tailored to meet his stated objectives:

respectfully disagrees with amendment 3 because this would affect the Governor in Council’s ability to publicly consult on, and issue, a policy direction to the CRTC to appropriately scope the regulation of social media services with respect to their distribution of commercial programs, as well as prevent the broadcasting system from adapting to technological changes over time;

The rationale behind the rejection removed any pretense of the government’s true Bill C-11 intent: it wants the power to direct the CRTC on user content today and the power to exert further regulation tomorrow. Regulatory power over user content today is confirmed by a bill that covers user TikToks, many Youtube videos, podcasts, and other content and future regulation is plainly framed as “adapting to technological changes”. The debate that followed wasn’t much better with government MPs returning to the false “loophole” claim or factually inaccurate assertions that the bill does not regulate user content.

So now Bill C-11 is back at the Senate. The lobbying to move on and just pass the flawed bill will be relentless. But the Senate should stand strong and send the bill back to the House with its amendment one more time. The bill as currently drafted raises freedom of expression concerns. The Senate knows this and fixed it. Senator Simons has suggested that the Senate could not approve a plainly unconstitutional bill. It should similarly decline to pass a bill that may abridge expression rights by potentially limiting the ability for some Canadians to have their voices heard online. The right approach is to send the bill back and require the House to reconsider its amendment by either passing it or offering a credible, constitutionally-sound explanation for declining to do so.