Government Plans on Regulating Speech and Apps Warns Expert

Does your speech online need regulation? The government apparently thinks so. It has a plan on regulating that and apps.

The Canadian Trudeau Liberal government has been moving away from protecting digital rights and innovation so much, that digital rights advocates have given up on them and declared the government “anti-Internet“. This is thanks to a pile of anti-Internet initiatives such as foot dragging on critical privacy reform legislation, link tax initiatives, and potentially warming up to Internet censorship among other things.

In the wake of this, the Canadian government simply doubled down during their budget reveal on this direction. This includes effectively walking away from connecting rural and indigenous communities to high speed Internet by shelving any initiative for another 6 years. Another item is pushing forward with slapping taxes on web giants immediately during the same budget.

Now, we are seeing fresh warnings about what some of the governments initiatives entail. While discussing Bill C-10, Canadian Heritage Minister, Steven Guilbeault, responded to concerns that the legislation would regulate al speech online. Guilbeault responded by saying that the legislation is only going after companies like Google and Facebook for acting like a broadcaster. As the legislation currently stands, it does carve out an exception for individual users who upload cat videos onto YouTube.

The problem is that a motion was tabled and adopted by the committee to scrap that exception. That would mean that the law would apply to everyone, not just large corporations. From Michael Geist:

Without this provision, anything uploaded by users – whether cat videos or kids dancing in the kitchen – would be treated by Canadian law as a “program” and subject to CRTC regulation. Government officials confirmed this today at the hearing with Owen Ripley stating:

Ms. Dabrusin has signalled the government intends to repeal, or suggest a repeal, of Section 4.1 altogether, meaning that there would no longer be any exclusion for social media services at all. For the benefit of the committee, in our previous sessions, the committee upheld the exclusion for users of social media companies. In other words, when you or I upload something to YouTube or some other sharing service, we will not be considered broadcasters for the purposes of the Act. The CRTC couldn’t call us before them and we couldn’t be subject to CRTC hearings.

But if the exclusion is removed – if 4.1 is struck down – the programming we upload to Youtube, that programming that we place on that service would be subject to regulation moving forward, but would be the responsibility of Youtube or whatever the sharing service is. The programming that is uploaded could be subject to discoverability requirements or certain obligations like that.

If the way forward to is maintain the exclusion for individual users but to strike down the exclusion for social media companies, that means that all the programming that is on those services would be subject to the Act regardless of whether it was put there by an affiliate or a mandatary of the company.

Read that again: “all the programming that is on those services would be subject to the Act.” Despite the warning, Parliamentary Secretary Julie Dabrusin put forward a motion to remove the exclusion, which gained the support of the committee.

This is a remarkable and dangerous step in an already bad piece of legislation. The government believes that it should regulate all user generated content, leaving it to regulator to determine on what terms and conditions will be attached the videos of millions of Canadians on sites like Youtube, Instagram, TikTok, and hundreds of other services. The Department of Justice’s own Charter analysis of the bill specifically cites the exclusion to argue that it does not unduly encroach on freedom of expression rights. Without the exclusion, Bill C-10 adopts the position that a regulator sets the rules for free speech online. As Emily Laidlaw tweeted, human rights apply online and offline.

As it turns out, it’s not just online speech in general that the government intends on cracking down on. It is also noted that the Canadian government is also moving forward with plans to regulate apps as well. From Michael Geist:

During today’s hearing, Liberal MP Marci Ien inadvertently let slip that the government will be introducing a motion to regulate apps. Speaking about the wrong amendment (which is presumably forthcoming at the next meeting), Ien stated:

Yes, a new clause, Mr. Chair, because we live in a new world and it is a digital one. This clause is adding apps. Right now, the CRTC can regulate conventional channels. This would make sure that apps are regulated as well. Things like Crave and other apps. This clause is also about discoverability and for more on that I’d like to go to the department for why that’s important.

The department gently responded that Ian was talking about the wrong amendment.

However, in letting it slip that the government now wants the CRTC to regulate apps, the scope of Bill C-10 expands even further by potentially covering hundreds of thousands of apps that include audio or video that might qualify under the definition of programs. The previous assurances that video games are off the table is apparently gone with plans to have the CRTC regulate practically anything digital including user generated content and apps.

At this stage, it is impossible to trust the government on almost any claim related to Bill C-10, which has been the subject of a barrage of misleading claims and now expansive regulatory plans to have the CRTC regulate all things digital. I repeat: Bill C-10 must be defeated.

Advocates have every reason to oppose these kind of ideas. It’s impractical to implement and enforce such laws unless large portions of the Internet are subject to extreme censorship. At best, you’d get some of the larger sites to comply while other sites would simply be unable to implement such measures. At that point, the question is, do those sites simply get censored while Canadian operations have their administration arrested? At minimum, this is not, nor never was, how the Internet works. Imposing content requirements on websites is a fools errand at best and would significantly hamstring innovation in Canada. Everyone from top to bottom stands to lose here.

Drew Wilson on Twitter: @icecube85 and Facebook.

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