Canadian Government Doubles Down on C-10 User Generated Content Crackdown

After promising that Bill C-10 won’t touch user generated content, the Canadian government’s promised amendment doubles down on it.

After being branded as an “anti-Internet” government, the Trudeau Liberal government appears to be embracing this title. Last month, the Canadian government amended Bill C-10 so that the legislation meant that it regulated user generated content and apps. Essentially, both needed both sides of the political spectrum represented and that both are required to have discoverable Canadian content.

Canadian content creators, along with the rest of Canada, immediately reacted to it, knowing full well that they could be the target of Canadian government censorship. Conservatives, for their part, turned it into political opportunism and began using it as a way to attack this otherwise relatively scandal free government. Bill C-10 ultimately represented a self-inflicted wound and the Conservatives pounced.

The Liberals, for their part, reacted by denying that this legislation targets user generated content. Unfortunately for them, a secret amendment proved that this bill does, in fact, target user generated content. The amendment strips the one section o the legislation explicitly spelling out that this bill does not target user generated content. With that section now gone, it left little doubt that user generated content is going to be targeted in the legislation.

As the heat kept turning up, Canadian Heritage Minister, Steven Guilbeault, decided to have an Interview on the CBC seemingly in an effort to explain that this legislation does not target user generated content. Unfortunately, the interview was a disaster. Guilbeault was seemingly unable to answer basic questions about the legislation and evaded the only question that was being asked during the entire interview. In response, critics called for Guilbeault to be fired.

While it is unsurprising that the Canadian Heritage Minister was seemingly clueless on this whole debate, what happened next did surprise. A motion to have a new constitutional review of the legislation was voted down. This came with an assist from the normally Internet friendly NDP. The NDP has a long decades plus track record of being defenders of the Internet and free speech. As a result, it was stunning to see that the NDP suddenly turn on Internet freedom and help the Liberals to shut down debate on the legislation.

The debate then moved to the house of commons where both the Heritage Minister and Prime Minister Justin Trudeau promised to put forward an amendment to make it “crystal clear” that the legislation does not go after user-generated content. The amendment apparently doubled down on the user generated content crackdown. From Michael Geist:

Last night at a somewhat strange Canadian Heritage committee meeting, Liberal MP Julie Dabrusin brought forward the promised amendment. Only rather than confirming that the content that people upload on social media won’t be considered as programming under the Broadcasting Act, it does precisely the opposite. First, the new amendment does not restore the Section 4.1 exception that had been touted as a safeguard against regulating user generated content. Second, not only does the regulation of user generated content remain in place, but the amendment confirms the CRTC regulatory powers, including a new power specifically designed for social media. In other words, rather than backing down in the face of public criticism, the government is doubling down on its Internet regulation plans.

The amendment (G-11.1) adds to the list of CRTC conditions that it can impose on Internet companies by stating:

9.1 (1) The Commission may, in furtherance of its objects, make orders imposing conditions on the carrying 30 on of broadcasting undertakings that the Commission considers appropriate for the implementation of the broadcasting policy set out in subsection 3(1), including conditions respecting:
(i.1) in relation to online undertakings that provide a social media service, the discoverability of Canadian creators of programs”;

The amendments establish some limitations on regulation that restrict what the CRTC can do with regard to user generated content, but the overall approach is indeed “crystal clear.” User generated content is subject to CRTC regulation under Bill C-10 with the result that the content of millions of Canadians’ feeds on TikTok, Instagram, and Youtube will now be CRTC approved as it establishes conditions to mandate discoverability of Canadian content.

Regulating user generated content in this way will make Canada an outlier with respect to Internet regulation. As I discussed in an earlier post, even the European Union, which has extensive regulations, ensures that video sharing platforms are not subject to regulatory requirements to prioritize some user generated content over others. There is good reason to not regulate user generated content in this manner, as it implicates freedom of expression and raises a host of questions about how companies will identify what constitutes Canadian content, whether Canadians will be required to surrender more personal information to big tech companies as part of the new rules, and what requirements will be established for individual feeds.

In fact, Canadian Heritage officials removed any doubt about the implications of the amendment, telling MPs:

The amendment, what it would do, is in Section 9.1 of the bill, it would add an additional order making power for the CRTC that with respect to online undertakings that provide a social media service, that order making power would only be with respect to a social media service. It would give the CRTC the ability to make orders with respect to the discoverability of Canadian creators’ program.

While the Heritage Minister has no problem saying that it is false to say that Bill C-10 would regulate user generated content, at this point, what more proof do you need that the legislation actually does regulate user generated content? The Canadian government not only put laser sights on user generated content, but also threw in some flood lamps on it as well and repeated “kill kill kill” on megaphones in the process with the latest amendment. At this stage, the denials are both comical and an insult.

One question this does raise is whether or not this legislation is even constitutional. If this legislation does manage to pass (and Canadians are hoping that it doesn’t at this point), would a legal challenge be forthcoming? If so, then would that challenge question the constitutional status of the legislation? If it does, then hopefully it can be smacked down by the courts. In the interim, it’ll create a huge amount of uncertainty by Canadian content creators online. They have to find themselves asking if police will bust down their door because they are streaming a game that was not made in Canada. It shouldn’t be necessary that creators have to face that, but now there is that risk that there will be a period of time clouded by uncertainty. That would be tragic to say the least.

Drew Wilson on Twitter: @icecube85 and Facebook.

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