Over the past several weeks, there have been several important privacy developments in Canada including troubling privacy practices at well-known organizations such as the CBC and Tim Hortons, a call from business organizations for privacy reform, the nomination of a new privacy commissioner with little privacy experience, and a decision by a Senate committee to effectively overrule the government on border privacy rules. These developments raise the puzzling question of why the federal government – led by Innovation, Science and Industry Minister François-Philippe Champagne, Public Safety Minister Marco Mendicino, and Canadian Heritage Minister Pablo Rodriguez – are so indifferent to privacy, at best treating it as a low priority issue and at worst proposing dangerous measures or seemingly hoping to cash in on weak privacy laws in order to fund other policy priorities.
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Digging Into the Government’s Online News Act Claims, Part One: Compensation For “Use” of News Content
With the Online Streaming Act having passed second reading in the House of Commons and headed for further study at the Standing Committee on Canadian Heritage, the government moved swiftly to second reading debate on Bill C-18, the Online News Act. I’ve already written several posts expressing concern about the overbreadth of the bill and its implications. The House of Commons debate is just getting underway with the opening defence of the bill delivered by Chris Bittle, the Parliamentary Secretary for Canadian Heritage, presenting a vision of minimal intervention based on fairness:
The compensation that tech giants would provide to Canadian media through Bill C-18 would represent a giant step in ensuring the viability of strong and independent journalism in Canada, which is essential to our democracy. That is what Bill C-18 would do. It is simple. Tech giants would fairly compensate Canadian journalists when they use their content. That is it: no more, no less. It is a market-based solution that involves minimal government intervention, and I think everyone in this place can agree on that.
The government is relying on two claims here: fair compensation for the use of journalist content and a market-based approach with minimal government intervention. While there might indeed be support for a bill that did that, the Bill C-18 reality is far different. The bill extends well beyond compensation for use, stretching the meaning of “use” far beyond a reasonable standard and creating a level of intervention that simply cannot be fairly described as minimalist. This post examines the notion of fair compensation for Canadian journalists when their content is used with a post on “minimal” intervention to follow.
Standing on a Shaky Foundation: What Lies Behind The Near-Impossible Challenge of Updating Canada’s Outdated Cancon Rules
Canadian Heritage Minister Pablo Rodriguez, who is hosting a culture summit this week in Ottawa, has said that he is open to modernizing the definition of Canadian content and that he is “open to all kinds of suggestions and ideas.” I’ve devoted many posts to the Cancon definition issue (even creating a Cancon quiz), noting that the current system is a poor proxy for “telling Canadian stories.” This system matters since the government’s Internet regulation policies are ostensibly designed to support Canadian content, but if the existing definitions don’t do that, they cannot reasonably be expected to achieve their objectives.
While I’m supportive of Rodriguez opening the door to reform, I have my doubts the government will make any significant changes to the current system. The challenge is that Cancon policy stands on a shaky foundation that is really three policies in one: an economic policy, a cultural policy, and an intellectual property policy. These three policies are often at odds with one another and used by politicians and lobby groups interchangeably to justify mandated contributions, content regulation, and foreign ownership restrictions. When the data doesn’t support one of the policies, they simply shift the discussion to one of the other policy objectives.
Not an Outlier: What the Government’s Online Harms Secrecy Debacle Says About Its Internet Regulation Plans
My post on the hundreds of submissions to the government’s online harms consultation has garnered significant attention, including a front page news story from the Globe and Mail (I was also pleased to appear on Evan Solomon’s show and the Dean Blundell podcast). The coverage has rightly focused on previously secret submissions such as those from Twitter likening the Canadian plan to China or North Korea and the National Council of Canadian Muslims, who warn that the legislation would have risked constituting “one of the most significant assaults on marginalized and racialized communities in years.” If you haven’t read it, please read my post summarizing some of the key findings or access the entire package that was obtained under the Access to Information Act.
The Rest of the Online Harms Consultation Story: Canadian Heritage Forced to Release Hundreds of Public Submissions Under Access to Information Law
For months, the results of the government’s online harms consultation was shrouded in secrecy as the Canadian Heritage refused to disclose the hundreds of submissions it received. I launched a page that featured publicly available submissions (links reposted below), including 25 submissions from organizations and companies as well as six individual expert submissions. I later followed up with two posts that provided further details on the publicly available submissions (here and here). Earlier this year, Canadian Heritage Minister Pablo Rodriguez released a “what we heard” report that again blocked making the actual submissions public, but provided a summary that left little doubt that the government’s plans were widely criticized and required a policy reset.
In the meantime, I filed an Access to Information Act request to compel disclosure by law of the consultation submissions. It took many months, but this week the department released the results. While some submissions may be excluded – third parties can object on certain grounds – I have obtained hundreds of additional submissions in a 1,162 page file. These can be obtained directly from Canadian Heritage by launching an informal access request at no cost with the department. The file to request is A-2021-00174 (or click here for the full file for the moment).
Recent Posts
The Law Bytes Podcast, Episode 269: Inside the Bill C-22 Committee Hearing for the Case Against Government’s Lawful Access Plans 
The Online Streaming Act Bill Comes Due: Why the CRTC’s Latest Ruling Guarantees Years of Trade and Legal Battles 
The Government Tries to Make the Case for Bill C-22: Why Its Own Use Cases Reveal Disproportionate Overreach 
Tech Exodus: Why Bill C-22’s Privacy and Security Risks Will Drive Digital Services Out of the Country 
The Lawful Access Two-Headed Surveillance Monster: How Bill C-22 Went Off the Rails
