Bill C-11 Closes in on the End-Game. Looking At the Problems Both Gone and Still Present

Bill C-11 has undergone a dizzying number of amendments at committee. We look at some aspects of the legislation now.

Currently, Bill C-11 is going through the final stages of the committee stages. It may be easy to forget that actually getting a committee hearing was something of a miracle. After a series of missteps by the Liberal party including pressuring the Senators to quickly rubberstamping the legislation, Senators became irritated. So, in response, the Canadian Senate recognized the absolute complexity of the legislation and sent it to committee for further study. This was definitely not what the Liberal Party wanted, but it was out of their hands at that point and they had no choice but to grin and bear with it.

The Senate hearings showed just how badly the hearings were in the first place. Whole lists of witnesses were brought forward and the Senate had to pick and choose which witnesses to hear from – though it was overwhelmingly lobbyists pushing for this legislation in the first place in the end. Still, all sides were actually heard from, showing what a committee hearing should have looked like at the House of Commons level. Politics was largely pushed aside and the substance of the bill became the focus of the hearings – something that never even came close to happening at the House of Commons level.

Another sign that the Senate hearings were needed was the constant theme of whole list of second round questions being drawn up, but never gotten to. In fact, in listening in on the hearings that I could listen to (all but one due to video being taken down), not one was adjourned early due to lack of questions. What’s more is that hearings also kept risking going over time – sometimes they did go over time as well.

After the Senate hearings, there was clause-by-clause review. Senators proposed and voted on amendments to the legislation. The changes both accepted and rejected are incredibly dizzying. One headline grabbing change was the last minute inclusion of age verification – a provision no one at the hearings asked for, but pushed by Senator Julie Miville-Dechene. Observers point out that this poorly conceived provision which got little discussion alone means that this bill is unlikely to survive constitutional muster. While that was a particularly bad change, not all changes were bad.

In addition to that, Section 4.2 was completely reworked to actually say what the government means with what kind of content they want to regulate. As a result, user generated content isn’t explicitly targeted in the bill any more. While this change fixes this legislation’s biggest problem, it is only one of many problems this legislation has. Still, the change means that user generated content survives in general. By extension, should the other two bills coming down the pipeline remain unchanged, it’s possible for Freezenet to survive on social media platforms like YouTube – incredibly relieving news that Freezenet may actually live after all.

So, where are we now with the legislation? University law professor, Michael Geist, offered a list of changes that made it and didn’t make it into the bill. While the changes are quite thorough, I would like to offer some highlights of the problems that still exist.

One major problem is the threat of possible trade sanctions from the US. The legislation does order large platforms to promote Canadian content. In addition, it also orders platforms to contribute to a funding that is more closely managed by the Canadian government. This risks violating CUSMA, Canada’s international trade obligations with the US and Mexico. Article 19.4 is an example of how Bill C-11 violates Canada’s international trade obligations and there may very well be other articles it violates. Compounding this, the US has warned Canada a second time that it has serious concerns with Bill C-11. So, not only is there a legal theory, but also the motivation from the United States to act on it.

Another related problem has to do with the funding. While there was an attempt to fix this legislation, the attempted fix was voted down. The funding mechanisms that exist today are designed to benefit establishment players as well as the well connected. The funding model has long been disconnected from the idea of producing content people actually want to consume. Bill C-11 will carry this legacy on because those who produce user generated content will be barred from accessing this funding. It is a massive mismatch that those who produce content are valuable enough to extract money from, but not valuable enough to receive that value afterwards. In short, it would be nice to support that comedy sketch on TikTok, but CTV execs need another solid gold Humvee to add to their garage, so that TikToker will just have to do with less.

Additionally, the consumer related problems still persist within the bill. When you use Netflix or a host of other platforms, the streaming services tailor their choices to your interests and tastes. The bill gives the CRTC power to override those consumer choices and pushes content that they decide you should watch over what you clearly want to watch. This has to do with algorithm manipulation. A fix was proposed to solve this problem, but it was defeated.

Further, there is a host of freedom of expression issues that still persist in the bill. These issues have been seemingly more isolated to the premium platforms, but they do persist. As a result of this and many other issues, the legislation is still very much open to a court challenge. So, it would be of zero surprise that when this bill is made into law (as it is seemingly destined to do at this stage), litigation would initiate to try and pare down some of these problems in the bill itself.

The overarching question mark is, of course, how the government reacts to the bill. The legislation still has to go through third reading and final approval of the bill before it is sent back to the House of Commons. So, there is still time where the government could simply not say anything about the changes. Still, the big question on many people’s minds is whether the government will accept the legislation now that user generate content regulation has been pulled from the bill.

Indeed, the government seemed to envision the power to put a gun to to the Internets head and growling like The Jackal from Far Cry 2 that they alone decide whose content lives and dies on the Internet and no one else. With the Section 4.2 amendment, this was greatly pared back.

There’s two possible outcomes with how the government will react. One possibility is that the government rejects that amendment and decides to pit the House of Commons against the Senate in a game of chicken to see how blinks first. At that point, there will be considerable political implications to that that goes far beyond just regulating speech on the Internet. It will push the country towards uncharted territory.

The other possibility is that the government capitulates and takes what victories they can get and call it a day. The government still gains enormous power over the internet, just not as much power as they and big broadcasting sought in the first place. Capitulating on user generated content would be a considerable capitulation to be sure given the history of the debate, but it would be one that Canadian’s can reasonably hope for. After all, scrapping the bill entirely (a much more ideal scenario) at this stage is comically unlikely now.

In all likelihood, the government is waiting to see the legislation in its final form before reacting. Until that point, the strategy, as hinted by Heritage Minister, Pablo Rodriguez during his Senate committee appearance, is to wait and see what the bill looks like rather than come out in front and decide what kinds of changes he likes and doesn’t like. Unless he changes his mind on this strategy, that is a strategy one can presume he is taking for the time being. So, a reaction is not something we’ll likely see today at the very least.

All in all, the changes up to this point in Bill C-11 is that new problems were added, the biggest problem was resolved, and many comparatively smaller problems still persist. Things stand to get incredibly bumpy from here on out with this legislation, but a lot of eyes are on the government to see what they are going to do next. The ball will eventually end up back in their court and how they react can determine the course the legislation goes in.

Drew Wilson on Twitter: @icecube85 and Facebook.

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