Bill C-11’s defenders have typically dismissed concerns about the bill and its implications for freedom of expression as misinformation. When pressed to address the actual substance in the bill, they either insist (wrongly) that the bill excludes user content or, alternatively, that even if it is in, the CRTC is bound by the Charter and requirements to safeguard freedom of expression. The claims about the exclusion of user content from the bill have been exceptionally weak as any reasonable reading of Section 4.2 leads to the conclusion that content is subject to potential CRTC regulation (for example, TikTok has concluded that all videos with music are caught). That regulation can include conditions on “the presentation of programs and programming services for selection by the public”, which means the CRTC can establish regulations on the presentation of content found on Internet platforms (the suggestion that it can’t or won’t watch millions of videos has always been a red herring since it doesn’t need to with a broadly-applicable regulation in place).
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The Freedom of Expression Wake Up Call: Why the CRTC’s Radio-Canada Ruling Eviscerates the Defence of Bill C-11
Just one week after Canadian Heritage and CRTC officials provided assurances to a Senate committee that the Commission’s regulatory powers over freedom of expression were constrained by the Charter of Rights and Freedoms, the CRTC yesterday released a ruling in which the majority ignored the Charter altogether in regulating content on Radio-Canada. The decision signals how Bill C-11 could be used to regulate Internet content the CRTC deems contrary to Broadcasting Act policy objectives. It also continues a disturbing trend of revelations that have come in the aftermath of Canadian Heritage Minister Pablo Rodriguez cutting off debate to rush the bill through the House of Commons: officials later admitting that the $1B claim of benefits is merely an “illustrative” estimate, CRTC Chair Ian Scott opening the door to indirect algorithmic regulation, and now the release of a decision on content regulation that dates back to November 2020.
The Missing Bill C-18 Charter Statement: Why Did the Justice Department Remove the Document Confirming the Online News Act Includes Payments for Internet Linking?
Last Tuesday, Justice Minister David Lametti tabled his department’s Charter statement for Bill C-18, the Online News Act. A link to the statement appeared briefly on the department’s website, but by the end of the week reference to the Bill C-18 Charter statement was removed from the Justice site altogether. As of this morning, there is still no reference to the statement, even though it is a public document having been tabled in the House of Commons. In fact, I have now obtained a copy of the Charter statement and posted it publicly here with an embed below. The department will presumably re-post the statement at some point and it would be useful to confirm that it remains unchanged and provide an explanation for the online removal (I asked and did not get a response). [UPDATE: Hours after this blog post went live, the government posted the Charter statement.]
CRTC Chair Ian Scott Confirms Bill C-11 Can Be Used To Pressure Internet Platforms to Manipulate Algorithms
The Senate Standing Committee on Transport and Communications held an exceptionally important hearing as part of its Bill C-11 pre-study (which is about to change into a Bill C-11 study) last night featuring Canadian Heritage officials and CRTC Chair Ian Scott. I will have a second post on the officials, who struggled to provide clear answers to basic questions on everything from how to identify what counts as Cancon for user content (Youtube’s Content ID was suggested) to the absence of thresholds for what is covered by the bill (there are no thresholds and the government wants the ability to also target small streamers). But the key moment of the day came in questioning Scott about the discoverability and the potential for algorithmic manipulation.
My Appearance Before the Senate Transport and Communications Committee on Bill C-11: The Senate Starts Review As Bill Receives House Approval
The Senate Standing Committee on Transport and Communications started its Bill C-11 pre-study yesterday just hours before the the bill passed third reading in the House of Commons. The bill quickly moved to first reading in the Senate, though at this stage it would appear that there will be just one more hearing involving departmental and CRTC officials before the summer recess. The House vote was widely expected as the government received support from the NDP on several occasions to limit debate. The Bloc and Green MP Elizabeth May also supported the bill, while it was opposed by the Conservatives and Green MP Mike Morrice.
I was pleased to appear before the Senate committee together with former CRTC Chair Konrad von Finckenstein as part of its first panel of the day. The questions and answers touched on a wide range of issues including discoverability and public support for the sector. My opening remarks are posted and embedded below: