The government plans to release its final policy direction on Bill C-11 today just days ahead of the start of a weeks-long series of hearings at the CRTC on the Online Streaming Act (I am scheduled to appear in early December). Ahead of the release, Canadian Heritage Minister Pascale St-Onge tries to re-write history, urging fast enactment of the legislation and blaming the Conservatives for the delays. Yet here is the reality: Bill C-10, the predecessor to Bill C-11, would have become law back in 2021 had the government not opened the door to regulating user content. Instead, the bill rightly became a source of concern, leading to years of legislative delays that virtually guarantees that nothing will take effect until 2025 at the earliest.
The debate over Bill C-11 was notable for the continuous gaslighting from then Heritage Minister Pablo Rodriguez, who when he wasn’t lying to committee on what he knew about funding an anti-semite, was misleading committee and the broader public about the implications of Bill C-11. St-Onge continues that approach with her comments about the Bill C-11 policy direction. First, the claims of crisis are absurd. The legislation is focused primarily on film and TV production, which has been experiencing record investment in Canada. The attempt to conflate challenges in the news sector, which have made worse by the government’s Bill C-18, is really an attempt to mislead.
Second, the Bill C-11 process was never going to be fast specifically because the government left so much to regulatory processes and CRTC hearings. Despite numerous efforts to include greater specificity in the bill, the government rejected most amendments, leaving it to the CRTC to figure things out. I wrote about the CRTC approach here, noting that there are at least nine consultations planned. The upcoming series of hearings are only the first tranche of many more issues that require resolution. In other words, it was the government’s own choices that ensured there would be no fast implementation to Bill C-11.
Third, while St-Onge says that the concerns regarding regulating user content were misinformation, the policy direction confirms that the opposite is true. For months, the government insisted that regulating user content was out, yet the need for a policy direction on the matter proves that the law as written includes user content. In fact, the government rejected a Senate amendment that would have addressed the concern. Today’s final policy direction again demonstrates that the issue was real and it was largely the sustained criticism that pressured the government into a policy direction limiting the application of its own law. No amount of gaslighting will change the reality that the Bill C-11 process will be a lengthy one as a result of the government’s legislative choices and the concerns about over-broad regulation will linger throughout.
One has to wonder if the reluctance to enshrine some of the clarifications in the law is that this would allow the government to tailor the law by way of regulation and directives from the Governor in Council to the CRTC without having to go through that pesky process of putting it in front of Parliament, sort of like what they tried to do with the budget back in the fall of 2020.
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This is what happens when stupid people believe they are the smartest people in the room. It looks like they’ve used Trump as a role model on truthfulness.
Michael Geist’s latest post is misleading and pernicious in keeping with his entire record on Bill C-11 and its predecessor. The Conservatives were largely responsible for the delays in getting the Online Streaming Act through Parliament, aided and abetted by libertarians and Internet exceptionalists like himself. The “record investment in Canada” of which he speaks features run-away Hollywood production. As I pointed out in my comment on his deceptive blog of May 4, 2023, the most recent data on English-language Canadian content television production (2021-22) shows a decline of -5.2%, relative to pre-pandemic 2019-20. In light of the recent downsizing and layoffs by Bell Media, Corus and Groupe TVA, the implications of this trend for Canadian creators are of crisis proportions.
The numerous efforts by the Conservatives to include greater specificity in the bill ran counter to the history of broadcasting legislation in Canada where considerable discretion has been left to the independent regulator – the CRTC. (This appears to be changing with today’s disappointing policy direction to the CRTC.) As with any new legislation, it will take time to put its various elements into effect and two years sounds about right. Unfortunately, the delays in the House of Commons retarded the process by over two years…
From the beginning, it has been clear that user content is out of regulatory purview for almost all intents and purposes, with potential exceptions for corporate entities disguised as “users” who are generating significant revenues (now defined by the Commission as $10 million or more) …
Those pesky Conservatives and libertarians insisting on examining the bill rather than taking the government at their word. Doing exactly what they are supposed to do. The horror of it all.
The Conservatives and libertarians did more than “examine” the bill, they pretended that it threatened “free expression”, insisted on putting minute details and thresholds into the legislation, and adopted sabotage tactics when they didn’t get their way. The details and thresholds were appropriately left out of Bill C-11 to be addressed by the CRTC in keeping with the tradition of the 1968 (Pearson) and 1991 (Mulroney) Broadcasting Acts. Parliamentarians do not have the information necessary to micro-manage broadcasting and ultimately left this to the Commission. According to Abella and Karakatsanis, “As an archetype of an expert administrative body, the CRTC’s specialized expertise is well-settled. Extensive statutory powers have been granted to this regulatory body, and an exceptionally specialized mandate requires the CRTC to consider and balance complex public interest considerations in regulating an entire industry.” (Bell Canada v. Canada (Attorney General), 2019 SCC 66)
And I thought Bill c10 didn’t become law because some genius called an election.
By “The CRTC’s specialized expertise” do you mean the expertise that has destroyed the independent ISP market, resulted in little cell phone competition, implemented a policy that restricts IPTV competition by requiring IPTV customers to also get their internet from the IPTV provider, resulted in high prices, and produced mainly bad to mediocre Cancon. It’s hard to believe non-experts could do worse.
Ask former Supreme Court Judge Rosalie Abella what “the CRTC’s specializes expertise” means. She’s the one who made the statement… All of your complaints concerning ISP service relate to the Telecommunications Act, not broadcasting.
I would almost agree with you, however the tendencies to Cabinet policy direction to such bodies here in Canada makes your point moot. The CTRC (and other government regulatory bodies as well as entities such as Elections Canada) have to operate within the law (or at least are supposed to). The complaints were that limits of what the law applies to were not being specified in the law but rather exist at the whim of the government of the day, and as such can effect a change to the limits without passing said changes by Parliament.
Why do you think that the Liberals attempted to modify the Firearms Act a few months ago to explicitly put in place prohibitions on certain types of firearms that existed ONLY in regulations put in place in 2020 (an amendment to Bill C-21). This included creation of a couple of new categories of firearms that are prohibited that aren’t in the Act (the proposed modifications would have made it more difficult for subsequent governments to remove these categories from the prohibited list).
The issue about C-11 is that it is a very similar setup. So while there may not be an immediate impact on “freedom of speech” (such as we have in Canada right now) the bill as it was written left open a big door for the government to drive through to potentially impact freedom of speech. If the government had no intention of the CRTC setting the regulations in a manner which went against the limits proposed by the opposition, why did they fight so hard against the opposition amendments?
As far as “sabotage tactics” is concerned… Frankly, both the opposition and the government are guilty of doing that at various times; I still remember the day that the PM decided that some non-monetary opposition initiated bill would be a confidence motion, meaning 1) that if it passed it would be considered a vote of non-confidence and 2) forcing the NDP to vote with the Liberals as a result of the supply agreement.
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They would have had an easier time of getting the public on board if they had of done even the slightest amount of work in answering simple questions about how it would impact certain kinds of content.
Instead, it was a whole lot of ‘no the Conservatives are gaslighting you, but we won’t tell you how this will impact Britbox/Crunchyroll/Youtube/Twitter/etcetera, just trust us.’
Unfortunately, the ‘just trust us bro’ style of rhetoric is probably what we’re going to be getting during the Online Safety fight, too.
Nobody knew in detail how Bill C-11 would affect the web giants, not even the CRTC. As I said, historically, considerable discretion has been left to the independent regulator who makes the necessary decisions in regard to details and thresholds after holding extensive public hearings. Parliamentarians set the broad parameters of broadcasting policy; they are not equipped to make detailed decision related to broadcasting regulation (or any other complex issue). That is the responsibility of the independent regulatory agency, the CRTC.
If only they were independent. They are appointed by the government and report to Parliament through the Minister of Canadian Heritage. In theory they operate at arm’s length, but they can, and do, receive direction from Cabinet with respect to policy and government priorities. And that is where the lack of specificity in C-11 is a problem. The refusal to incorporate limits in the text of the law means that a government can issue valid direction that is contrary to the government’s stated goals.
If this bill had been proposed by Stephen Harper and they refused to incorporate the requested changes can you say with a straight face that you would have accepted it as is and argued that said amendments weren’t necessary?
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The members of the CRTC are appointed by government, but not a few governments have been surprised by the subsequent actions of the members they have appointed. They can only be removed for due cause. I don’t think the fact that the Commission reports to Parliament through Canadian Heritage is of any particular consequence. The Commission’s source of revenues is independent of the government and Parliament. The Commission is subject to policy directions of a general nature, but these cannot reach beyond the confines of the Broadcasting Act. Such directions cannot be contrary to the dictates of the Act – only limiting on them. I do not like the tone of the most recent policy direction, but hopefully the Commission will find ways to interpret it in ways that retain the basic objectives of the Online Streaming Act…
“The Commission is subject to policy directions of a general nature, but these cannot reach beyond the confines of the Broadcasting Act”. And that is exactly the issue here. The government says that they aren’t after certain impacts, and then turns around and refuses to implement them in the text of the Act. Makes people question their commitment to not implementing those controls. The opposition is wanting the government to back up their words with actions.
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