Bill C-11 is already a complete disaster, but an amendment passed in the senate makes it even worse.
There is no question that Bill C-11 is a complete disaster. It effectively abolishes free speech on the internet and turns speech into a privilege granted by the CRTC thanks, in part, to the redefinition of speech by describing it as a broadcast. This thanks to the many ways Bill C-11 scopes in user generated content. Between the enormously problematic free speech concerns as well as the looming international trade issues that seems destined to plague this bill, the message is clear from the government: internet innovation is not welcome in this country and the government will regulate it to death any way it can.
Currently, Bill C-11 is undergoing clause-by-clause review where Senators take what they heard throughout the senate hearings and look at fixes to the bill. Nowhere in the hearings did anyone bring up any sort of need to bring in age verification in the bill, however, it was mentioned by Senator Julie Miville-Duchene during the hearing with Peter Menzies where she asked if Bill C-11 regulated pornographic material. The answer was that the legislation does not differentiate between the types of content, only that content is regulated by the CRTC. This reminded people of the joke “is that porn Canadian enough?”
Unfortunately, it was, in retrospect, a warning that the Senator was going to take matters into her own hands and work in her own pet project about age verification. As it turns out, the Senator sponsored and successfully passed an age verification provision into the legislation – something that this bill is decidedly not about and something no one throughout the entire hearings asked for. Yet, here we are. From Michael Geist:
The Senate committee studying Bill C-11 has ramped up the hours devoted to clause-by-clause review with amendments related to user generated content currently up for debate. However, earlier today, just prior to addressing the user content issue, the committee shockingly adopted an amendment that adds age verification for online undertakings to the Broadcasting Act. The amendment comes as a policy objective, meaning that it will fall to the CRTC to determine how to implement it. The implications are enormous since broadly defined the policy would require every online service that transmits or retransmits programs over the Internet (broadly defined to include all audio and audiovisual content) to establish age verification requirements to prevent child access to programs with explicit sexual activity. If the CRTC implements, the policy will surely be challenged as unconstitutional.
The amendment was proposed by Senator Julie Miville-Duchêne, who is also the sponsor of S-210, which envisions similar age verification requirements. The amendment states:
“(r.1) online undertakings shall implement methods such as age-verification methods to prevent children from accessing programs on the Internet that are devoted to depicting, for a sexual purpose, explicit sexual activity;”
This is a stunning addition to Bill C-11 that makes a bad bill dramatically worse. Further, it is discouraging that some of the same senators that have insisted on the risks to freedom of expression that arise from regulating user content in the bill would support implementing age verification for access that could easily extend to commonly used sites and services. If this survives further approvals (including the House of Commons), I don’t see how it survives a constitutional challenge.
Indeed, this raises two significant problems.
For one, it would require a massive expansion on what data is collected by platforms and websites which is a serious privacy risk. Large websites and platforms like Facebook already collect a significant amount of data about its users – many often sell it to third party data brokers and advertising firms. A long running criticism is the fact that platforms and web services already collect far too much data. This amendment encourages even more of it.
For another, implementation of anything even remotely effective is going to be pretty much impossible. No technology exists today that verifies the age of every user on the planet to any degree of reasonable accuracy. As a result, smaller websites such as ours have no hope in implementing an effective system so, as a result, a website such as us could incur a penalty of some sort just for the mere fact that the website exists.
The legislation itself is already unconstitutional because of the massive implications to freedom of expression. Geist rightfully notes that this amendment would add another reason why the legislation is unconstitutional. The implications may not matter to Senator Miville-Duchene now, but it will matter when, at minimum, her amendment is struck down in court, adding even more headaches to this legislation.
Drew Wilson on Twitter: @icecube85 and Facebook.
