Another Gag Order is Introduced to Pass Bill C-10, Reflections on Analysis

The government has introduced a second gag order on debate. Also, we reflect on what we’ve learned in the analysis of Bill C-10.

At committee, the government successfully pushed through a “gag order” that shut down debate. After shutting down debate, secret amendments were put to a vote and passed. The tactic of trying to keep the legislation and the legislative process of this bill hidden in the veil of secrecy effectively meant for critics that supports know this is a bad bill and that any scrutiny is a threat to the legislation.

Now, we are learning that this tactic is now being repeated in the House of Commons – the next step in the process. From Michael Geist:

Fresh off imposing a five-hour gag order on committee debate on Bill C-10 and rushing through a secretive process in which dozens of amendments were passed without any debate, discussion or even disclosure of the amendments, the government is back for a gag order sequel. Yesterday, the Liberal government introduced another motion, this one designed to limit debate even further: one hour for debate at the report back stage and 75 minutes at third reading. In other words, less than 2 1/2 hours total for debate on the bill in the House of Commons. The motion was introduced before the updated Bill C-10 was even posted online, though it is now available.

So, the push for an additional rushed process means that the changes to the legislation at this stage will very likely be minimal. That basically means that the version we earlier analyzed is going to be very close to the final version. We are, of course, open to the idea of some minor tweaks to the legislation can be made, but we’re also not exactly holding our breath that this will make much of a difference of what the overall bill represents.

For us, there were certainly some surprises along the way in reading the text of the bill. The biggest surprise were found in these two related sections of the bill:

(i.1) in relation to online undertakings that provide a social media service, the discoverability of Canadian creators of programs;

(j) the provision to the Commission, by persons carrying on broadcasting undertakings, of any other information that the Commission considers necessary for the administration of this Act, including

(i) financial or commercial information,

(ii) information related to programming,

(iii) information related to expenditures made under section 11.1,

(iv) information related to audience measurement, other than information that could identify any individual audience member, and

(v) other information related to the provision of broadcasting services;

Exception — online undertaking
(3.1) Orders made under this section, other than orders made under paragraph (1)(e.2), (i.1) or (j), do not apply in respect of programs that are uploaded to an online undertaking that provides a social media service by a user of the service — if that user is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them — for transmission over the Internet and reception by other users of the service.

Again, while we expected some pretty gnarly stuff in the legislation, this caused our eyebrows to raise. While this is clearly draconian, it also offers a hint as to where the legislation is intended to take things.

Practically speaking, when it comes to assessing Canadian content, it’s, in no way, practical for the CRTC to assess every video and every podcast on the Internet. It’s literally impossible even with thousands of added employees paid to scour the Internet and assessing the “Canadianness” of ever piece of work out there. So, the idea of blacklisting what is not Canadian content is pretty much out the window on the outset.

So, knowing what we know about the legislation after our analysis, what does make sense here? Well, the opposite of a blacklisting filtering system is a whitelisting system. In this case, it’s possible to figure out who identifies themselves as a Canadian content creator, then start regulating their speech accordingly. While this does trim the workload being asked of the CRTC down by quite a bit, there are still mountains of content across many platforms. As such, it’s hard to see this as being practical even then.

So, rather than have the CRTC do the work, what seems like the most probably outcome is to have Canadian creators come crawling to the CRTC so they can beg and plead their case that they are, in fact, Canadian. As such, they can hope that they can make the case so as to not have their content suppressed by them. At that point, the CRTC can demand what we see above: information on the creators programming, financial information, audience measurements, and whatever “other information” means.

The question then becomes, can Canadian creators make the case for a specific video or does the whole channel have to be in compliance with whatever rules there are when it comes to what makes Canadian content “Canadian”? The legislation really doesn’t say, though it does seem to lean towards making sure that the whole channel is in compliance. Still, it’s possible that such flexibility can be made, though we don’t know how these laws will be enforced given that they have yet to receive royal assent.

Regardless, such arbitrary and burdensome rules do present a very real problem for creators in the end. Basically, it creates a system that heavily favour incumbent industries while forcing smaller operations to jump through loads of hoops that previously never existed. Currently, you post, say, a video on YouTube, then a global audience can either enjoy it or not. The power is in the hands of the audience. With this new legislation, you have a gauntlet of rules to follow just so that you might have a chance at reaching the same audience that was previously accessible. At the same time, incumbent organizations who have spent thousands or millions on a production can simply waltz in and get those coveted top spots or recommendations in the side bar. They had the budget and teams to produce such content that is already in compliance with the rules already set out in the Canadian Broadcasting Act.

At best, some of the top tier online producers might be able to jump through all of those hoops just to retain their positions on the site. However, the people who are up and coming won’t have the resources – and most likely won’t have the expertise to answer the who knows how many questions the CRTC demands about the channel and the content. At the end of the day, it stifles that organic viral nature of how things get popular or how producers grow their content.

For me, as mentioned in my letter to my own MP (who I have yet to hear back from by the way), the Wiki page has roughly 2,500 pages. It took me about two and a half years to research and compile this information. There were plans long before this debate even took place of featuring Canadian content, but only as part of how the Wiki organically grew. If we are now expected to make 750 of those pages totally Canadian to be in compliance with the CRTC (and yes, news sites are subject to regulation as per an internal government memo), then I would say that the regulators are on the moon as it would be impractical for me to magically push those out overnight. It was a miracle to produce this much content in the first place, and to expect more to be tailored to a specific rule set is not even physically possible for me to pull off.

Of course, this is just the Wiki. The main portion of the site has over 4,400 posts and pages. This is something I have been building up since January of 2013. The question I have to ask is, first of all, how do I track what is Canadian and what is not? The reality is that there just isn’t any way I can do this with any degree of accuracy. Some game reviews, for instance, might be produced in Canada while others are not. I’ve certainly reviewed a number of Canadian songs in the past, but to differentiate what is and isn’t Canadian in any practical way is not really possible. What’s more is whether I can figure out which news stories qualify as “Canadian” and what does not is similarly impractical. This is partly thanks to how many are actually international stories that speak about multiple countries in one story (i.e. stories about the TPP). Simply put, there is no practical way for me to sift through everything and come up with a viable argument for every individual article about what is and isn’t Canadian.

Now, practically speaking, I will very likely be far from alone in this problem. There are very likely YouTube producers and Twitch streamers that have hundreds or thousands of video uploaded. So, asking them to go back and figure out what is and isn’t Canadian would simply be impractical for many of them. Similarly, I look at the content I produce and the resources available to me and can easily conclude that there is no practical way I can comply. So, the alternative is to see the Canadian government, through the CRTC, demote my content which would limit my reach simply because I’m not Canadian enough.

The thing is that the legislation, as it currently stand, won’t actually cause the police to bust down my door and throw me in the slammer for not being Canadian enough. As this is mainly a project of passion, I don’t see myself stopping any time soon. So, even if this legislation became the law of the land, I won’t stop reporting on the news, reviewing music and video games, or documenting music from around the world. What I can foresee is a massive drop in a Canadian audience as Canadian users will be forced to sift through designated Canadian content instead of checking out content they actually want to see. Quite frankly, if I were thrown in prison anyway, I can see myself writing letters from my prison cell anyway. I’m going to keep writing.

What’s more is that there is still the very obvious legal question of whether such a law is constitutional. In fact, many experts have already pretty much banked on the government being on the receiving end of a lawsuit. As such, this legislation, even if passed, will probably be tied up in the courts for years. At the end of the day, this is the government suppressing the speech of Canadians – something that the Canadian Charter of Rights and Freedoms says is a big no no.

At the end of the day, I see Freezenet being suppressed by the Federal level government, but I will still be able to write the news anyway. We are hoping that a lawsuit will finally cut this bill down as a blatant violation of our free speech and journalistic rights since there aren’t currently enough politicians to stand up to this. Still, a lot of smaller producers in Canada are going to get screwed over by this and that, should it come to pass, will be tragic for this country.

Drew Wilson on Twitter: @icecube85 and Facebook.

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