Reports are surfacing that an election will be called on Sunday. This means that Bill C-10 will die if the reports are true.
Bill C-10 has been the bane of Canadian internet creators existence. As everyone knows, the bill essentially subjects user generated content to heavy regulation. The net effect is that legacy corporations will, by law, be promoted all the while pushing actual user generated content down into the sidelines. All throughout the year, it’s been the subject of general overall outrage.
Of course, since this is a proposed law, it is also influenced by general political news. That is very likely going to come into play if recent reports are anything to go by. According to the CBC, Prime Minister Justin Trudeau is going to the governor general on Sunday and ask to dissolve government:
Voters can expect to head to the polls for a federal election on Sept. 20.
Prime Minister Justin Trudeau is planning to visit Rideau Hall on Sunday to ask that Parliament be dissolved, said sources with knowledge of his plans who spoke to CBC News on the condition they not be named.
The sources said the prime minister is then expected to announce a 36-day campaign — the minimum campaign length permitted by law — meaning voting day would be Monday, Sept. 20.
News of the pending election call has been reported already by Reuters and La Presse.
Dissolution of Parliament is not automatic and Gov. Gen. Mary Simon could say no — although that would be a rare move out of line with parliamentary tradition.
Obviously, the idea that Canada is going to go into an election this year is probably one of Canada’s worst kept secrets. All the heads of the major political parties have been out essentially campaigning already. Trudeau has been announcing big spending promises for months as if he was on the campaign trail. While he spun it as the government getting things done, his comments were pretty much impossible to believe especially with parliament already on Summer break. So, unsurprisingly, no one believed him when he essentially denied that he was on a major political campaign.
This latest news pretty much all but confirms what everyone knows. Canada is going into an election. We are seeing firm dates on when it’s going to be called and how long the election is going to be. The only thing that is really missing is an official announcement that the writ has been dropped.
Now, the election does have some pretty big implications on digital rights. Some are good, but even more is bad.
Starting off with the good news is that Bill C-10 is going to die. From the very beginning, it was already a bad bill. This year, we saw it go from bad to potentially catastrophic with the heavy regulation on user generated content. So, the push has been on for months to see this die on the order paper. While freedom of expression was beaten to an inch of its life in Canada, the stalling out in the senate means that the legislation seemed to be all but dead. As such, freedom of expression is going to survive this round.
The other bits of good news is that Canada’s notorious link tax proposal and the internationally condemned online harms proposal. As we know, the online harms proposal is not yet legislation, but the “consultation” process behind the scenes is a clear effort to hit the ground running when the next government is formed. After all, for the Liberal party, the fewer delays on their war on the Internet, the better. Still, it means that there is at least an additional 30 days to wait things out for sure. So, a delay is a delay.
The short 30 day election period is an indication that the Liberals are wanting to capture a majority, thereby eliminating as much resistance as possible. So, this leads us to the bad news in all of this.
First, Bill C-10 is, of course, destined to be re-tabled as amended. Little work is likely going to be done. As a result, it’s all about fast-tracking this legislation. So, really, the only thing that is going to happen is the minister just waiting for the first chance to table this terrible bill.
The second problem is that the online harms legislation will very likely follow suit. The consultation is happening during the election which obfuscates the process at least until the process is over. This will encourage people not to partake as they are focused on the election. Luckily, we got our response in already and, despite it being unlikely that responses will get treated with anything more than a grain of salt if those responses disagrees with the government position, it is strongly encouraged you get your responses in as well if you are a Canadian or someone who has ties to Canada. So, chances are, the online harms bill will follow at some point later on.
The third problem is the forthcoming notorious link tax. While support among big publishers has been increasingly divided, the Liberals have been all in on pushing for this link tax legislation. The only good news is that, of the three prongs to directly attack the Internet, the link tax seems to be the least developed. Still, there is a very real possibility that this will rear its ugly head at some point during the next session. Whether that comes in the form of a full fledged bill or something else, we don’t really know at this stage.
The final problem is the polls. All indications suggest that there is a very real chance that the Liberals will get handed a majority government. If not, then chances are, it will be another minority government. A Liberal majority government is, of course, a digital rights advocates worst case scenario at this point. Not only are the Liberals going to push this three pronged approach to crack down on the Internet, but a majority will also mean that resistance will be limited in stopping this madness.
So, assuming the worst case scenario (as it is a very real possibility at this stage), then what? There are, of course, still ways of fighting this. There is the hope that large tech companies will pull a rabbit out of a hat and stymie this through heavy lobbying. Another front to fighting this is through Canadian’s engaging in mass letter writing. Whether it is through local news outlets or the parliamentarians, getting the word out about what the Liberals are up to is critical. Make this war on the Internet as politically unsavoury as possible.
Failing all of this, there is still hope that freedom of expression online will survive. That is through litigation. Let’s just say that those likely to litigate the government are well aware of what is going on. All of this has to become law first, but once that happens, litigation paperwork can be filed to try and declare these laws for what they are: blatantly unconstitutional. The government suppressing speech is a violation of the constitution. Fining someone $10 million dollars for not quite removing a comment fast enough is also very likely unconstitutional. We could go on and on about how these proposals are blatantly unconstitutional, but the point is, lawyers can have a field day poking holes in these laws. Chances are, they will be ripe for litigation.
While the the last resort mentioned here is probably the most likely to succeed assuming a majority government, there is a big caveat here: litigation takes time. It is not out of the question that while litigation happens that a judge decides that the government can continue enforcing the laws in the mean time. That is a legal possibility. Not one we would like to see, but it’s not impossible either. So, that opens the door to the government basically bringing the hammer down on the Internet in the mean time. The damage that we could see in that scenario is likely almost unimaginable.
Let’s say, for instance, it takes a year for legal proceedings to go through. We’re not going to lie, in the legal world, that is moving litigation forward at a pretty good speed. It’s not unheard of that litigation would take 5 years, for instance. In that year, the government can very easily start swinging the hammer at the Internet. Who knows how many websites could take the fall in the mean time. If you are an entrepreneur hoping to start a website up, are you really willing to risk it in such an environment? Are you willing to risk a $10 million fine because you decided to take a few days off to go fishing and a comment posted unbeknownst to you got you in hot water? That’s enough to make me have second thoughts.
If litigation is the way things go here, the best case scenario is that an injunction of some sort against such a law is granted. At that point, you really are just hoping that a final judgment be rendered that says that yes, the law is unconstitutional and, therefore, should be struck. That wouldn’t stop the government from pushing through the law again. Furthermore, what if the final judgment doesn’t go the way digital rights advocates would hope? Does that mean that the government can start punishing sites retroactively? If not, will they just build a list in the mean time and hit every website they don’t like all at once? We don’t really know.
The point is, even under a good case scenario, there is still a pile of uncertainty if this all boils down to litigation in the end. It’s why that, even if it’s unlikely, it’s better to stop these laws dead in their tracks before people have to resort to litigation. The thing is, it’s going to, unfortunately, be an extremely uphill battle as far as we can tell at this point in time.
So, what can Canada do right now? Politicians are inevitably going to do their town halls. That is probably one of the earliest great opportunities to hammer these important questions. After that, it’s all about denying the Liberal party a majority government. This is the most immediate things that those who believe in freedom of expression can do at this stage. The odds are long. There are going to be setbacks. Furthermore, there is probably going to be disappointment. Still, that is the nearest thing that is available in fighting all of this if you believe in digital rights.
At any rate, everyone is waiting for the writ to be dropped. That will probably happen on Sunday. From there, game plans can be formed from there.
Drew Wilson on Twitter: @icecube85 and Facebook.
