The Canadian Radio-television and Telecommunications Commission issued a notable decision last month involving the creation of an annual digital media survey that likely provides an advance preview of how it will address Bill C-11 if it becomes law. That is a cause for concern, since the Commission apparently sees few limitations in its powers despite obvious doubts that it is operating within the boundaries of existing law. Those powers, which will be increased should Bill C-11 be enacted, lead to its position that any broadcasting from anywhere in the world is subject to its jurisdiction so long as there is a Canadian nexus to the activities. There is no requirement that the service be located in Canada in order to qualify and little practical guidance on what constitutes a Canadian nexus.
News
CRTC Calls for Increased Powers To Take a More “Interventionist” Approach on Internet Content
Last month, I appeared before the Senate Standing Committee on Legal and Constitutional Affairs to discuss Bill S-210, a bill that aims to limit minors’ access to pornography sites by implementing age verification and website blocking requirements. I warned that face recognition technologies, which are often used for age verification, raise serious privacy risks and that website blocking would have negative consequences for freedom of expression. Further, I emphasized how incredibly broadly the bill is drafted. While the Senators were focused on some well-known pornography sites, widely used sites and services such as Twitter or Reddit are also captured by the bill, raising the possibility of age verification to send a tweet or read a Reddit post.
The committee’s study of the bill continued yesterday with an appearance by Scott Hutton, the CRTC’s Chief of Consumer, Research and Communications. While Hutton emphasized there were no easy answers and that net neutrality principles would likely preclude action with respect to content regulation under the Telecommunications Act, his responses to some Senators reinforce concerns that should Bill C-11 pass, the Commission will be in the Internet content regulation business through the Broadcasting Act. Indeed, while Canadian Heritage Minister Pablo Rodriguez and the CRTC have sought to downplay concerns that the CRTC would seek to regulate online content, Hutton told the committee the Commission needs more power in order to adopt a more interventionist approach:
The Urgent Need for Privacy Reform: My Appearance Before the Standing Committee on Access to Information, Privacy and Ethics
The House of Commons Standing Committee on Access to Information, Privacy and Ethics spent much of February conducting a study on the collection and use of mobility data by the Government of Canada. The study stems from reports that the Public Health Agency of Canada worked with Telus and BlueDot, an AI firm, to identify COVID-19 trends based on mobility data. I appeared before the committee earlier this week, making the case that this is a a genuine privacy quandary where the activities were arguably legal, the notice met the low legal standard, Telus is widely viewed as seeking to go beyond the strict statutory requirements, and the project itself had the potential for public health benefits. Yet despite these factors, something does not sit right with many Canadians. I believe that something are outdated privacy laws that are no longer fit for purpose. My opening statement is posted below.
Bill C-11’s Foundational Faults, Part Two: The Regulate-It-All Approach of Treating All Audio-Visual Content as a “Program”
My first post in a series on foundational faults in Bill C-11 focused on the virtually limitless reach of the CRTC’s jurisdictional power over audio-visual services. The starting point in the bill is that all audio-visual services anywhere in the world with some Canadian users or subscribers are subject to the Canadian jurisdiction and it will fall to the Commission to establish thresholds exempting some services from regulation. However, even with some exemptions, the Canadian approach will require registration and data disclosures, likely leading many services to block Canada altogether, reducing choice and increasing consumer cost.
The expansive approach in Bill C-11 isn’t limited to its jurisdictional reach, however. Not only does the law have few limits with respect to which services are regulated, it is similarly over-broad with respect to what is regulated, featuring definitions that loop all audio-visual content into the law by treating all audio-visual content as a “program” subject to potential regulation.
Lobby Harder: Canadian Heritage Minister Pablo Rodriguez Issues Industry Call to Action to Support Bill C-11
Canadian Heritage Minister Pablo Rodriguez appeared at the CMPA’s Prime Time conference last week, calling on the film, TV and broadcast sectors to become even more vocal in defending his Bill C-11. The bill, which has been the top lobbying priority of the sector for years, opens the door to regulating user generated content and asserts jurisdiction over all audio-visual services worldwide. There are several elements worth noting in the question-and-answer session with Rodriguez, not the least of which is the insistence on inaccurately claiming the new bill addresses concerns with regulating user generated content. When asked about the issue, Rodriguez responded:
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