Bill C-11 didn’t exactly receive royal assent as expected last week, so let’s talk about some of the next steps for this bill.
Last week, the anticipation was that Bill C-11 would receive Royal Assent, the final step in the legislative process. That… didn’t happen as we are here on Monday still seeing this step not taken. The lingering grumbling is the fact that Bill C-11 might not regulate user generated content. At minimum, SOCAN was furious about this, demanding that the amendment that fixed Section 4.2 be removed completely.
The call itself left little doubt that the whole purpose of Bill C-11, at least in the minds of some of its supporters, was to regulate user generated content. Not only that, but the games they played was to try and not say this out loud and, instead, beak off endlessly about how this is about, vaguely, “flexibility” while saying that this doesn’t address how the internet could evolve in the future for reasons that only makes sense to them.
Indeed, the difficulty for the Heritage Ministry is to try and come up with a convincing excuse to remove the fix without admitting that the whole point of this legislation was about regulating user generated content this whole time. Obviously, no answer will be found and the real choice that is on the table is to either concede this point or to fully admit that user generated content regulation is the point and set up a rather curious battle with the Canadian senate on this point.
One of the fears is that the Heritage Ministry will somehow find language in the text to circumvent the Section 4.2 fix and carry on with regulating user generated content. Those fears appear to be allayed when Heritage Minister, Pablo Rodriguez, vowed to remove amendments that changes the bill. This suggest that a clever workaround may not be found and that Section 4.2 is mission critical for the regulation of user generated content. Otherwise, why make such a big deal about this in the first place? Indeed, the fact that Bill C-11 isn’t law by now would certainly add evidence to this perspective.
One thing that is worth pointing out is the fact that even if Bill C-11 does achieve Royal Assent, the story isn’t necessarily over. What is largely over is the public’s ability to affect any further changes, leaving it largely in the hands of the wealthy and powerful.
The next step is for the government to send the Canadian regulator, the CRTC, instruction on how to enforce this legislation. The directive continues to be withheld from both lawmakers and the public even to this day. This aspect has been an incredibly frustrating aspect of the debate because so much of the governments position revolves around the “just trust us” talking point. This has hampered debate in that the government refused to show how they intend on enforcing this bill. Regardless, this directive will have to be released at some point.
Further, the CRTC has to prepare the seemingly impossible task of hiring and creating the infrastructure to begin regulating the internet. The whole concept in and of itself is a fools errand, but it would then be a task that the regulator would seek to undertake anyway. There is no question that the regulator won’t be able to effectively enforce the legislation on the internet. The real question is how badly this will get enforced.
Another question is what position the CRTC is currently in. While setting up a system will undoubtedly be a monumental task, evidence suggests that they are not exactly still sitting in the starting blocks on this front. Back in May of 2021, documents suggest that the CRTC was already preparing to enforce this legislation – back when this bill was still called Bill C-10. What will probably never be clear is just how much work went into preparing to enforce this bill at this point. Still, it will no doubt take time to, at minimum, hire staff and train them on what they can and cannot do.
This leads us to how this legislation interacts with the rest of Canada. By all reasonable accounts, this is destined to end in litigation. Inevitably, there will be litigation at the national level. Who it comes from and how many is really the only thing that is up in the air. There’s plenty of sources that such litigation will come from. This includes civil litigation from individuals worried about what it means for personal choice. Another possible source would be from creators who worry that they are being unfairly targeted (whether from digital first creators or creators whose products are found on Netflix, Amazon Prime, and other premium services). Finally, there is the most obvious source: the platforms themselves who feel that such a law is unreasonable and impacts their right to freedom of expression among other things (yes, it’s entirely possible to see funky arguments like that).
A major elephant in the room is the international level. The very obvious risk is seemingly the inevitable trade retaliation over this bill. Supporters of Bill C-11 may brush off these threats as no big deal because they have a good feeling about this, the threats are very real and the case against bill C-11 is very strong. How this impacts the bills enforcement is, of course, unclear, however, the potential trade war this bill could spark is a potentially explosive one.
Because of all of this, when the bill receives royal assent, the internet is not exactly going to change overnight in Canada. Some supporters might point to a lack of change within the first few weeks and treat it as proof that critics are wrong, but critics like us know better than to fall for such spin. Anyone who has any experience with the legal system alone will be all too happy to tell you that court challenges like that takes years to work its way through the system. Heck, a court resolution in under 12 months would be considered incredibly quick. By one estimate, a comparatively simple criminal court case can take as long as 30 months. Another estimate suggests that a class action lawsuit can take 1 – 3 years.
There is no question that, thanks to the complexity of challenging a law like this, that you can expect a rather large amount of time to pass before you can even start to expect some kind of resolution. It’s not unreasonable to suspect that such challenges could easily hit the upper estimates. As for international disputes (something that this law seemingly invites), even I can’t really find much in the way of estimates. It’s probably understandable given the complexity increases from there because you are talking about international trade agreements, the laws of both countries, and whatever else goes into such a scenario. If it ever gets to this, even I would be treating that as a rather interesting learning opportunity about how such things work.
Because of all of this, no, the legislation receiving Royal Assent won’t mean that this is the end of the story, let alone the entire internet changing overnight. We are going to be in for a rather long and protracted battle no matter what. This is even with Bill C-11 receiving Royal Assent with the Section 4.2 amendment making it through. After all, Section 4.2 in its current Senate form doesn’t resolve every controversial aspect of the bill. All Royal Assent means that we are entering the next stage of the fight to put a stop to this bill.
Drew Wilson on Twitter: @icecube85 and Facebook.
