CRTC Chair, Ian Scott, Tries His Hand At Spreading Misleading Comments on Bill C-11

With so many others failing at fooling Canadian’s on what Bill C-11 does, Ian Scott of the CRTC takes a crack at it.

The claims by Bill C-11 supporters have been increasingly comical in how bad those claims are. In recent days, we saw the president of the Canadian Broadcasters Association (CBA) claim that Bill C-11 doesn’t regulate user generated content. A quick reading of Section 4.1(2) quickly debunks that claim. From there, the Liberals tried to claim that Bill C-11 doesn’t allow the CRTC to sift through content, deciding what is and is not Canadian content. Section 4.2 easily debunks that claim. A cartoon repeated some of these claims which, of course, didn’t make the claims any more true.

From there, the claims by supporters grew increasingly desperate and ridiculous. A pair of claims suggested that Bill C-11 would end workplace harassment and that it would allow creators to have access to audience data. There is no reference that we found in the legislation that addresses either one of these issues and we wonder who is being denied access to their audience data in the first place. After that, Heritage Minister, Pablo Rodriguez really went out on a limb and suggested that Bill C-11 will save the careers of musicians. The reality is that SOCAN has seen nothing but record breaking growth in the realm of royalties collected for musicians. We do note that the claim that artists were only receiving $67 on average was made, though this was a repeat of the claims made in 2019:

Ugh this is so dishonest and not helpful. First and at the outset, I hope these Musicians make more money, but there is nothing in #C11 that will do that. Second below you will find that SOCAN said the exact same thing for 2019…$67

The article in reference is to Digital Music Canada which says this:

SOCAN members — including songwriters, composers, producers, publishers, and other composition rights owners — received an average of $67 (Canadian dollars) for domestic digital royalties in 2019, according to the organization.

Those comments did raise valid questions on why artists haven’t been getting more under SOCAN when royalties collected were going up.

So, after all of that, one by one, the claims kept going down in flames – none of which successfully addressed the original criticisms of the bill in the first place.

Now, we are learning that Ian Scott, chairperson of the CRTC (Canadian Radio-television and Telecommunications Commission), is now taking a crack at this. Why not? All other attempts led to complete and utter failure, so why not let him take a chance at defending this legislation he so badly wants.

This is all according to a speech which was apparently dated April 1st, so, this was pretty badly timed to begin with. The text of the speech was posted online for everyone to read. Where things start being problematic is this:

All this brings us to today, and Bill C-11. As you probably know, the Bill was introduced in the House of Commons in February. It is currently at the second reading stage.

We at the CRTC are supportive of the overall approach taken by the Bill.

This is a regulator we are talking about here. They are supposed to be impartial. Yet, the chairperson is part of the cheer-leading section for this legislation. From there, Scott says this:

In our view, it proposes three important things.

First, it clarifies the CRTC’s jurisdiction regarding online broadcasters. Second, it gives us a more flexible approach to regulation in several important respects. And third, it modernizes the CRTC’s enforcement powers.

All these changes combined would give us the flexibility, the speed and the tools to respond to changing industry trends.

In short, this is basically an admission that the CRTC is going to get new regulatory powers to regulate the content you see on the Internet. This aspect is kind of obvious. It’s unnerving how much power the CRTC will have, but at least this was admitted to. This was said after that:

So, to circle back to the message I promised to deliver at the outset of my remarks, how would the new Bill change the way we at the CRTC work?

Some have warned that the Bill, in its current form, leaves too much up to the CRTC to figure out. For instance, how do we define an online broadcaster? Or content that makes a meaningful contribution to Canadian culture? Or how should services such as Spotify or Netflix support Canadian French-language content and artists?

The danger with being too specific in the legislation is that it becomes a static document once it receives Royal Assent. As we have seen, it can take several decades before Parliament has an opportunity to review legislation, and in the meantime circumstances on the ground can shift significantly.

A regulator, on the other hand, can move quickly to update its regulatory policies. All it requires is the launch of a public proceeding, the gathering of views and evidence, and the time to deliberate and draft a decision.

This, of course, is a problem. You are basically leaving everything to the CRTC. So, essentially, you are giving the regulator a sort of blank check over said content on the Internet. The Internet itself has become wildly popular today because there are so few restrictions today. There is no one person signing off on whether content is good enough to be uploaded, users (and creators alike) upload content and just sees what happens and how the audience would react. Given how much the CRTC has demanded more power to control the Internet, it is, at minimum, a sign that the CRTC should not be granted such power in the first place.

We then get this nugget from the speech:

Some have also said that Bill C-11 would give the CRTC the authority to regulate user-generated content on social media. That someone who uploads an original song on YouTube or a video on TikTok could be subject to registration, contribution or discoverability requirements.

That’s just not true.

As it’s drafted at the moment, the Bill draws a distinction between the users of social media, and the platforms themselves. It’s clear to us that the Bill’s intent is to exclude individual users from regulation.

There’s two claims here. One is wrong and one is misleading. First, the legislation is actually explicit when it says that it does regulate user generated content. Here’s, once again, the text of the bill that does easily debunk the claim that the legislation doesn’t regulate user generated content:

Application — certain programs
(2) Despite subsection (1), this Act applies in respect of a program that is uploaded as described in that subsection if the program
(a) is uploaded to the social media service by the provider of the service or the provider’s affiliate, or by the agent or mandatary of either of them; or
(b) is prescribed by regulations made under sec­tion 4.‍2.

Non-application — social media service
(3) This Act does not apply in respect of online undertakings whose broadcasting consists only of programs in respect of which this Act does not apply under this section.
For greater certainty
(4) For greater certainty, this section does not exclude the application of this Act in respect of a program that, except for the fact that it is not uploaded as described in subsection (1), is the same as a program in respect of which this Act does not apply under this section.
Regulations — programs to which this Act applies
4.2 (1) For the purposes of paragraph 4.‍1(2)‍(b), the Commission may make regulations prescribing programs in respect of which this Act applies.

So, what would you believe? The CRTC chairperson making claims about Bill C-11 or the actual text of Bill C-11? Not hard to decide which to believe, here.

With the false claim out of the way, there is the misleading claim. The misleading claim is “to exclude individual users from regulation”. Once again, that is not what is at issue here. The users are not being regulated, but the content – their speech – is what is being regulated. It’s precisely why this legislation is unconstitutional in the first place because the legislation suppresses content made by Canadians not deemed “Canadian enough”.

Why make this claim? It was a premeditated misleading claim baked into the legislation as far back as Bill C-10. Essentially, both bills have a provision that says the person doing the uploading won’t be regulated. This is seemingly an effort to try and confuse Canadian’s. By rebutting criticisms about how this bill regulates content by saying it doesn’t regulate the users, the intention is to try and suggest that these issues are one and the same when they are a world of difference. What’s more is that the comment that it doesn’t regulate the users is true. So, this was an intentional effort to confuse Canadian’s when the core issue is still the same: Bill C-11 regulates user generated content.

From there, the defence gets pretty bad and contradictory:

Even our powers to regulate social media platforms would be limited by Bill C-11. However, they would include requiring that these platforms support the development of Canadian programs, make content discoverable, or accessible to persons with disabilities.

You can’t help but laugh at that one. First, the claim “they would include requiring that these platforms support the development of Canadian programs”. So, who decides what is Canadian content? The CRTC. This according to Section 4.2:

4.‍2 (1) For the purposes of paragraph 4.‍1(2)‍(b), the Commission may make regulations prescribing programs in respect of which this Act applies.

“The Commission” is the CRTC.

So, the web that is weaved begins to start stretching and breaking. If the CRTC is charged with deciding what is and is not Canadian, how does the CRTC take a hands off approach to user generated content when they want the platforms to promote Canadian content? The simple fact is, you are either regulating content or you’re not. If you are not regulating content, then this legislation should be shelved. If you are regulating content, then the claim that the CRTC is not regulating content simply does not hold. How do you promote Canadian content without identifying what is and is not Canadian content? Nothing about these claims are making any sense any more.

The speech itself, of course, gets even better (and by that, we mean even worse):

We understand that Canadian digital-first creators are innovators who have leveraged their creativity and the freedom of the Internet to garner audiences and followers, many of whom are located outside of Canada. It is not our intention to do anything that would harm, restrict or impede their ability to create and share their content.

We’re getting pretty far into the territory of word salad here. So, at that point, the question then becomes, “how to you make these regulations without harming, restricting, or impeding Canadian’s content anyway? Literally the only way you do this is by saying that literally anyone and everyone that claims they are Canadian, or is somehow related to Canada, should be given a thumbs up for who can be identified as Canadian. This alone opens the system for widespread abuse. Any Canadian that is denied access to the promotion of their content on the platforms means that the system automatically fails at that point. That individual can sue for violations of the Canadian Charter. It is unlikely that this is the intention of the CRTC, though.

We then get this:

The CRTC must exercise its powers under the rule of law and in a manner that is consistent with the Canadian Charter of Rights and Freedoms. Users of online and social media services expect freedom of expression, and they will continue to enjoy this under the new Broadcasting Act.

Put another way, the CRTC issues about 250 broadcasting decisions annually. Not a single one has ever been successfully challenged on the basis that it somehow infringed Canadians’ freedom of expression.

So, in other words, the CRTC, by making this statement, is admitting that they have absolutely no idea what they are getting themselves in to. They might think that 250 broadcasting decisions a year is a lot. Look at any statistics that shows how much content is uploaded to YouTube. An example might be found on Statista which says this:

As of February 2020, more than 500 hours of video were uploaded to YouTube every minute. This equates to approximately 30,000 hours of newly uploaded content per hour.

The obvious question is, “are you seriously suggesting that you are going to oversee that much content getting uploaded every second with the manpower you have?” Even if you employ 100,000 people dedicated just to deciding what is and is not Canadian content, you are just going to get a backlog so large, it would make the Canada Revenue Agency scream in horror. The CRTC is simply ill equipped to handle the volume of content on just that one platform. That doesn’t even get into how many other platforms are out there and how many people are going to inevitably cry foul over something they uploaded. Screwed doesn’t even begin to describe the situation the CRTC is about to find themselves in.

Scott then goes on to say this:

That brings me to another point that some are raising about the new powers granted to us under Bill C-11. People are asking whether we have the expertise needed to regulate online streaming in Canada.

Here’s how I’d respond to that question.

The CRTC has a long history and a strong track record of implementing effective policies and adapting its approaches over time to meet the evolving needs of Canadians and of the broadcasting system. We’ve been doing it for more than 50 years. And we will continue to do so under the new Broadcasting Act regardless of the platform, and only when regulation materially contributes to the objectives of the Act.

Try not to laugh too hard when the CRTC is trying to tout its track record. For many years, the Canadian wireless and Internet sectors have been controlled by four large players: Telus, Rogers, Shaw, and Bell. It’s a monopoly controlled by four players that had Canadian consumers paying the price. That price includes higher bills (a situation so bad, that is sparked CBC specials describing just how bad some have it), worse quality of service, and less consumer choice. It’s a situation that has a universal response: something needs to be done about the sorry state of affairs.

After Stephen Harper of the Conservative party became Prime Minister, he set out to solve this issue through ideological means. His government set up a wireless spectrum auction with the hopes that new players would join in and compete in the wireless and Internet sector. Since this is all based off of ideology, you can pretty much guess where this is headed. All the big players gobbled up the spectrum and nothing changed for Canadians.

In successive elections, which includes the 2019 and the 2021 elections, a big theme on the technology side of things was what to do with the disastrous state of affairs in the Internet and wireless sector. How do we increase competition? After all, Wind Mobile made an attempt and was forced to jump through so many hoops, investors backed out and the company was forced to sell to Shaw after. Sadly, elected officials generally stop talking about these important issues after the ballots are cast.

As a result, the situation keeps deteriorating. Studies have shown that Canadians pay some of the highest cell phone rates in the world. What’s more is the lack of access could also be holding the Canadian economy back. What does the CRTC say about all of this? They did their Baghdad Bob impression and said that everything is fine and working as it should.

When Rogers announced that they were going to buy Shaw, reducing competition even further in Canada, everyone concluded that this was a bad deal for Canadians. Yet, the CRTC couldn’t rubber stamp the deal fast enough.

This isn’t even getting in to the CRTC Bell beer scandal. Don’t even get me started on the move overturn the decision to keep cell phone rates lower because we all know what a disaster that was.

All this leads to one conclusion: the CRTC has failed Canadians. In fact, if the CRTC’s mission was to fail Canadians on purpose, they are doing a very good job of that. It takes effort to fail this hard, yet the CRTC have a proven track record of excellence when it comes to failing Canadian’s. Yet, Scott is sitting there trying to tout the track record of the CRTC when a cursory look shows just how bad that track record truly is.

With all that said, we should point out how Scott could have approached these remarks that would have been better. He could have addressed Section 4.1(2) and Section 4.2. Another thing is that he could have addressed how content is and is not selected as Canadian (possibly indicating to what kind of process we are looking at). Instead, what we got was someone repeating the same debunked claims in a different voice and hoping that this makes all the difference. It didn’t and never had a chance to. The only thing that was accomplished was to prove that the CRTC is far from an impartial regulator.

The comments made by Scott were so bad, it had some wondering if this was an April fools joke:

This is reads like a Bill C-11 April Fool’s joke: CRTC Chair Ian Scott, who claims independence and an approach guided by evidence, instead parrots government talking points on a bill that governs the regulator.

Michael Geist is right, the comments we saw from this speech is a complete disaster. If the CRTC wanted to alley (perfectly justifiable) fears of Bill C-11, that speech did nothing to move those goals forward. If the CRTC wanted to add fuel to the Bill C-11 fire, well, mission accomplished.

Drew Wilson on Twitter: @icecube85 and Facebook.

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