Experts Agree: Bill C-11 is Terrible and Needs to Be Scrapped in Current Form

Bill C-11 has been tabled. Experts have been looking it over and early reviews elsewhere seem to be all negative.

Yesterday, we published an analysis of Bill C-11 – Canada’s Online Streaming Act. The short of that analysis is that it is a terrible threat to free speech and likely unconstitutional. Looking around today, we see that experts are agreeing with our overall assessment of the legislation (that it’s bad).

Michael Geist, for instance, is saying that the legislation is not ready for prime time:

So how does Bill C-11 address the issue? As a start, the section 4.1 exception for treating user content as programs subject to potential regulation has been restored. When combined with the return of section 2.1 exempting users from being treated as broadcasters, the government is now claiming that it “listened, especially to the concerns around social media, and we’ve fixed it.” But dig a little deeper and it turns out that the bill is not quite as advertised. While Section 4.1 was restored, the government has added 4.1 (2), which creates an exception to the exception. That exception to the exception – in effect a rule that does allow for regulation of content uploaded to a social media service – says that the Act applies to programs as prescribed by regulations that may be created by the CRTC.

The bill continues with a new Section 4.2, which gives the CRTC the instructions for creating those regulations. The result is a legislative pretzel, where the government twists itself around trying to regulate certain content. In particular, it says the CRTC can create regulations that treat content uploaded to social media services as programs by considering three factors:

  • whether the program that is uploaded to a social media service directly or indirectly generates revenue
  • if the program has been broadcast by a broadcast undertaking that is either licensed or registered with the CRTC
  • if the program has been assigned a unique identifier under an international standards system

Views on the scope of this regulatory approach may vary, but it is undeniable that: (1) regulating content uploaded to social media services through the discoverability requirement is still very much alive for some user generated content; (2) the regulations extend far beyond just music on Youtube; (3) some of the safeguards in Bill C-10 have been removed; and (4) the CRTC is left more powerful than ever with respect to Internet regulation.

Second, in addition to the continued regulation of some Internet content as programs under CRTC rules, the remarkable scope of the bill also remains unchanged. Readers may recall an internal government memo that identified a wide range of targets for Bill C-10 regulation. In fact, the memo noted that bill could cover podcast apps such as Stitcher and Pocket Casts, audiobook services such as Audible, home workout apps, adult websites, sports streaming services such as MLB.TV and DAZN, niche video services such as Britbox, and even news sites such as the BBC and CPAC. The potential scope for regulation is virtually limitless since any audio-visual service anywhere with Canadian subscribers or users is caught by the rules. Bill C-11 maintains the same approach with no specific thresholds or guidance. In other words, the entire audio-visual world is fair game and it will be up to the CRTC to decide whether to exempt some services from regulation.

Third, the uncertainty found in Bill C-10 is also largely unchanged. Bill C-11 tries to include some criteria for defining key provisions such as the user-generated content exception and what constitutes a Canadian creator, but ultimately there’s still no easy way to identify Canadian creators when it comes to user generated content, podcasts, or other similar content. Some key terms such as ‘social media’ are widely used in the bill but not defined at all. Simply put, no one knows how these companies will comply, much less how users will be identified as Canadian for the purposes of the law. The benefits themselves are also uncertain since the CRTC is left to determine many of the requirements in processes that may take years to complete.

There was an opportunity to use the re-introduction of the bill to fully exclude user generated content (no other country in the world regulates content this way), limit the scope of the bill to a manageable size, and create more certainty and guidance for the CRTC. Instead, the government has left the prospect of treating Internet content as programs subject to regulation in place, envisioned the entire globe as subject to Canadian broadcast jurisdiction, increased the power of the regulator, and done little to answer many of the previously unanswered questions. The bill is not ready for prime time and still requires extensive review and further reform to get it right.

Geist isn’t alone in viewing Bill C-11 in a negative light. Dwayne Winseck is calling for Bill C-11 to be killed off:

It is also worth noting that, like its predecessor, the bill sweeps a whole new category of media into its ambit: music services. Sure, radio broadcasting is where broadcasting regulation started back in the 1920s and 1930s, but stand-alone music services, record companies and music stores were never covered. This bill would change that.

Second, while the Bill, to its credit, as we saw earlier, explicitly excludes people who use social media from its reach, the Act redefines all forms of expression/content/speech that people upload and make available over an online streaming service or social media platform as a “program”. So, while individual social media users will not be directly regulated (but see below), their expressions, pictures, messages, life history, etc. will now be defined as a broadcasting program and in some cases regulated as such (see DCH, 2022, p. 11). In other words, while individual users (speakers) are out, it appears that the content of their expressions are within the reach of the Broadcasting Reform Act while whether or not they will be specifically regulated by the CRTC will turn on a number of criteria set out in the bill.

The problems in this respect are two-fold: first, this exercise in redefining a wide range of human expression in the confined box of “broadcasting programs” threatens to smuggle in through the backdoor what the bill explicitly says is being excluded: expressions/content that people upload to a social media service. The slippage in the technical briefing notes handed out yesterday, and Minister Rodriguez’s comments in the media between a clear and emphatic emphasis on how social media users will be excluded from the bill—and the CRTC’s—reach without a consistent and similar emphasis on how their expressions/speech/content, and the re-labelling of such as “programs, will be treated further muddies the waters on this issue.

Philosophically, recasting the entire range of human expression and activity now conducted online through the digital platforms as “programs” seems technocratic. Doing so, wittingly or unwittingly, strips the questions of speech and expression of the normative values that flow out of the long-standing discourse over freedom of expression and democracy. Moreover, and in simple terms, it is unclear what purposes redefining speech and expression in this stunted, technocratic way will ultimately serve. It is worth noting that such efforts to confine the full range of expression into the cramped confines connoted by the concept of a “broadcasting progam” is new and seems wrong on the face of it.

In other words, while individual users (speakers) are not covered by the proposed law, it appears that the content of their expressions—redefined as programs—are within the reach of the Broadcasting Reform Act but whether or not they will be specifically regulated by the CRTC will turn on three specific criteria set out in the bill. In fact, the new version of Broadcasting Act reform bill strives to limit the potentially far sweeping reach of this new definition by being explicit that only programs—that is, all kinds of expression uploaded to a platform—that meet the following three criteria will fall under the reach of the CRTC:

  1. generate revenue;
  2. are broadcast or made available on more than one service that is either licensed by or registered with the CRTC;
  3. have some kind of an international service identifier tied to it, such as ISO number (sec 4.2(2).

To sum up, the Liberal government had an opportunity to go back to the drawing board & really get this opening plan in its emerging Internet services regulation right. It had/has a huge opportunity to align this agenda with what a new generation of public interest, Internet regulation fit for a democracy should look like. It made some baby steps in this direction, as we saw above, but it did not engage in thorough-going overhaul that is needed. As a result, C-11 stands as another missed opportunity.

Ultimately, we are starting to see battle lines emerge. Experts and Internet advocates have already started opposing the legislation in its current form. There is a general consensus that this bill does little to support the online creator community.

In fact, one can very easily take these assertions to another level. This is by saying that the legislation tilts the Internet into the favour of legacy corporate interests. After all, legacy broadcasters have all the money in the world to comply with the heavy regulations as it is. Moving online would be a trivial move for them. At the same time, Canadian creators native to the online environment will have to worry about whether their content earns money or falls under certain regulations. For most, they won’t be able to satisfy whatever the Canadian regulators have in store for them and, as such, will see their content wiped from recommended pages across their respective platforms and replaced by content by legacy producers.

At this point, the door to a lawsuit questioning the legislation’s constitutionality is very much open here. By promoting some kinds of content, you also have to suppress other kinds of content. This content can very easily be content produced by Canadian’s. As such, it can be construed as suppression of their speech – which falls well into the legal definitions of government censorship. Speech doesn’t actually have to be completely removed for it to be considered censorship in the first place.

What’s more is that the government has long been intending this legislation to move forward. No doubt they are less than thrilled with their own election getting in the way of this bill being passed. As such, they are more motivated than ever to see this bill passed quickly. The upside here is that more and more are seeing the bill for what it is – and ugly and unconstitutional mess that should be thrown into the trash.

Drew Wilson on Twitter: @icecube85 and Facebook.

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