The government released its long-promised draft policy direction on Bill C-11 to the CRTC yesterday. The policy direction is open for public comment until July 25, 2023, after which the government will release a final version that gives the CRTC guidance on its expectations for how the bill will be interpreted. While Canadian Heritage was at pains to emphasize that the draft direction includes instructions that the “CRTC is directed not to impose regulatory requirements on online undertakings in respect of programs of social media creators, including podcasts”, the draft directive confirms that the government misled the public for months on the scope of Bill C-11 and highlights the problem with the CRTC’s rushed effort to establish regulations before the draft policy directive is final. I plan to file a submission by the deadline, but in the meantime offer several thoughts.
First, after assuring Canadians for months that the bill did not regulate user content or that algorithmic regulations were excluded, the draft policy direction confirms that this was false. Indeed, the inclusion of a direction on regulating user content is only needed because it is captured by the bill. While the draft direction is a good first step to address the myriad of concerns, why was this language not included in the bill? Why wasn’t the Senate fix that achieved much the same thing not accepted? Some of the reason may well be to keep the door open to future regulatory actions since policy directions do not have the same status as legislation. Indeed, unlike legislation which can take decades to amend, policy directions come and go, governments change, and CRTC commissioner grants varying degrees of deference to policy directions.
The algorithmic regulation issue provides another example of misleading claims. After denying for months that algorithmic regulation was captured by the bill, the draft directive states “the Commission is directed to prioritize outcome-based regulations and conditions that minimize the need for broadcasting undertakings to make changes to their computer algorithms that impact the presentation of programs.” Minimizing changes to algorithms is obviously not the same as no algorithmic regulation. The inclusion of algorithms within the scope of delivering on Bill C-11’s discoverability regulations was always obvious, yet officials implausibly insisted it fell outside of the bill.
Second, many of the policies are still wide open. For example, Canadian content rules are likely to emerge as one of the most contentious issues of the bill, but the draft direction does little more than highlight competing policy objectives and require the CRTC to consider them. In establishing regulations, the draft directive identifies ten additional policy objectives and says they must be considered. On this front, this is less guidance than simply reiterating existing broadcast policy.
Further, some of the draft directive is dependent upon the CRTC consultation process, highlighting the risk of moving ahead with the Commission process before the direction is final. For example, consider again the exclusion of user content. As noted above, the specific language is “CRTC is directed not to impose regulatory requirements on online undertakings in respect of programs of social media creators, including podcasts”. A key definition is who qualifies as a “social media creator”, since it is their content that is brought into the exclusion. Social media creators are defined in the draft direction as “a person who creates programs that are primarily intended for online distribution as user-uploaded programs through social media services.” So what is a social media service? We don’t know because there is no definition for social media service in Bill C-11. Instead, the CRTC is currently consulting on the issue.
This highlights the need for a consistent resolution of policy questions, starting first with a final policy direction (which should have given guidance on social media services) and then followed by the implementation questions that come from the CRTC. The Commission has made an absolute mess of the Bill C-11 process right out of the gate, creating mounting doubts about its independence and competence to deal with the myriad of issues in a manner that is fair to all stakeholders. The release of the draft policy direction only heighten those doubts, while confirming the inaccuracy of the governments claims regarding the scope of Bill C-11.