The Standing Committee on Canadian Heritage yesterday held a special hearing with experts to discuss Bill C-10 and concerns about the freedom of expression implications of regulating user generated content. I was pleased to appear before the committee and took questions from MPs from four of the five parties (only the Liberals did not ask me any questions). I have two posts on the appearance: this post features my opening statement and a second post links to a special edition of the Law Bytes podcast with the audio of my appearance.
The full text is posted below. There are at least three points emphasizing. First, no other country in the world uses broadcast regulation in this way, making Canada a true global outlier. Second, there is no evidence of a discoverability problem for user generated content. Third, the issue of excluding Youtube from the scope of the bill is open to considerable debate and was not even raised by CIMA in its written submission to the committee.
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The government’s defence of Bill C-10, the Broadcasting Act reform bill, took another hit over the weekend with what might have been the worst interview yet by Canadian Heritage Minister Steven Guilbeault (and that includes the CBC interview ten days ago that people are still talking about). In the span of eight minutes, Guilbeault managed to cite the wrong section in the bill, indicate that social media users with a large number of followers would be regulated, and justify the regulation by assuring that it would come from the CRTC, rather than the government directly.
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This past week Bill C-10, Internet free speech, and the government’s digital policy agenda went mainstream as a lead topic in government, the media, and among many Canadians. This week’s Law Bytes podcast departs from the standard format as I explain why the bill has suddenly become a hot topic, how the government has been inconsistent and at times incoherent in its attempts to justify the bill, and why the concerns regarding freedom of speech and CRTC over-regulation are absolutely justified.
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The uproar over Bill C-10 has rightly focused on the government’s decision to remove safeguards for user generated content from the bill. Despite insistence from Canadian Heritage Minister Steven Guilbeault that users will not be regulated and Prime Minister Justin Trudeau that users will not be required to make Cancon contributions, the reality is that the removal of Section 4.1 from the bill means that all user generated content is treated as a “program” under the Act and therefore subject to regulation by the CRTC.
That regulation is extensive and can include “discoverability” requirements that would allow the regulator to mandate that platforms prioritize some users’ content over others. Section 9.1(1)(b) of the bill states:
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
(b) the presentation of programs for selection by the public, including the discoverability of Canadian programs;
Since the government is now treating user generated content as a program under the Act, this effectively reads that the CRTC can establish conditions respecting the presentation of user generated content for selection by the public, including the discoverability of user generated content.
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Appeared in Macleans on May 3, 2021 as The Real Consequences of Steven Guibeault’s Battle with the Web Giants
My new Macleans op-ed notes that government legislation tends to attract a wide range of responses. Some bills grab the spotlight and become sources of heated debate for months, while others fly under the radar screen with few Canadians taking notice. Until recently, Bill C-10, the government’s Broadcasting Act reform bill, fell into the latter category. Introduced last November as part of Canadian Heritage Minister Steven Guilbeault’s mission to “make web giants pay”, the bill was steadily and stealthily working its way through the Parliamentary process with only a few days of “clause by clause” review left before a final reading and vote in the House of Commons.
Yet last week, the bill was thrust onto the front page of newspapers across the country with the public seizing on an unexpected change that opened the door to government regulation of the Internet content posted by millions of Canadians. The change involved the removal of a clause that exempted from regulation user generated content on social media services such as TikTok, Youtube, and Facebook. The government had maintained that it had no interest in regulating user generated content, but the policy reversal meant that millions of video, podcasts, and the other audiovisual content on those popular services would be treated as “programs” under Canadian law and subject to some of the same rules as those previously reserved for programming on conventional broadcast services.
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