Heritage Minister, Steven Guilbeault, Demands MPs Ram Through Bill C-10

Steven Guilbeault, the Minister of Canadian Heritage, demanded MPs quickly pass Bill C-10 after the Justice Department rubber stamped it.

You could almost be forgiven if you thought that Canadian Heritage, Steven Guilbeault, was actively trying to kill Bill C-10’s chances of a smooth passage. After all, the guy did just about everything to undermine it even though he is so adamant on passing it. Bill C-10, as you know, would regulate user generated content, elevating simple cat videos to a similar level to that of Canada’s major traditional broadcasters. In turn, it would require Canadian content to be discoverable within that content to a certain percentage.

Already, Bill C-10 was in focus by a number of people for attempting to apply CRTC regulation surrounding Canadian content on traditional airwaves to the larger websites and platforms like Facebook and YouTube. Radio and Television, of course, is broadcast to a captive audience in given geographical areas. So, it made sense to require a certain percentage of Canadian content to those broadcasts given that, before the Internet, it would be next to impossible to discover Canadian content otherwise. Taking that requirement and applying it to the Internet, which is a global community that frequently knows no borders already made little sense to begin with.

So, you have legislation that already doesn’t make that much sense to begin with and throw in an amendment that strips away the one provision that exempts ordinary every day users. Understandably, the result is that you stir up the hornets nest that is the modern Internet – the same Internet that is fully capable of wrecking careers and personal sanity if you decide to piss off the collective voices who call it a secondary home.

Now, the easy and obvious solution is to admit that, maybe, just maybe, it was a mistake to delete that exemption. Sure, you’d have people annoyed, but the controversy would soon die down and things might resume back to normal rumblings. Naturally, the minister chose not to do so and took it upon himself to make things a whole lot worse. The Minister appeared in a CBC interview where he was unable to answer a single question about the interview. By that, we mean that a single question was asked of the Minister throughout the interview and he was unable to answer it.

Naturally, this prompted questions on whether the Minister even knows what is in his own bill and whether he even understood it to begin with. With so much changed in the legislation, there were also calls to have the Minister of Justice to re-evaluate the legislation now that user generated content is also a target for the legislation. In response, the Liberals, shut the debate down. That move, stunningly, was backed by the NDP who effectively saw a 15 year streak of being defenders of the Internet come to an end in the process.

Facing increasing heat, Prime Minister Justin Trudeau had to step in and bail out the Heritage Minister by saying that an amendment would be forthcoming to make it “crystal clear” user generated content is not going to be regulated by the government. That amendment turned out to alter the bill in such a way to make it “crystal clear” that the legislation does regulate user generated content. Obviously, the perception then became that the Liberals have decided to employ a strategy of say one thing then do another. Generally, some people would call this a definition of “lying”.

The easy answer here is to re-evaluate the amendment, make an adjustment, and put in a line that says that this legislation does not apply to user generated content. Yeah, the government would rightfully take a number of lumps in the process, but hey, there would be a chance to turn this controversy around. Obviously, the party chose not to employ a correct solution here. Instead, the Minister chose to appear in another interview, this time with CTV. In it, he admitted that user generated content would be regulated. Not only did that destroy any doubt about what the legislation did, but also embarrassed his boss, the Prime Minister, in the process.

Shortly after, the Minister released a statement saying that he was unclear and that user generated content would not be regulated. Obviously, what’s in the legislation matters more than what the Minister says it does. The legislation, to date, has remained unchanged and user generated content will be regulated. Still, it seems that supporters of free speech got what appeared to be a win after getting a second Charter review of the legislation.

The very next day, the justice Department issued a response. It’s quite the quick turnaround to say the least. In it, the Department said that the legislation does not regulate user generated content. Instead, it regulates user generated content, but don’t worry, it’s limited. Also, the CRTC would totally respect the Charter anyway, so we trust them when they say that they pinky swear it won’t regulate user generated content. Experts were unconvinced by this incoherent statement that seemingly rubber stamps the legislation without really going over it in the first place. From Michael Geist:

In other words, there is no analysis or discussion about how the regulation of programs intersects with the Charter. There is similarly no discussion about whether this might constitute a violation that could be justified, no discussion on the implications of de-prioritizing speech, and no discussion of the implementation issues that would outsource regulation to tech companies not subject to Charter limits and could require Canadians to disclose personal, location-based information in order to comply with the new requirements.

Instead, the government emphasizes that users are not regulated as broadcasters and the CRTC is required to rule in a manner consistent with the Charter. Neither provide constitutional comfort. As Professor Emily Laidlaw argues:

The government does not propose to regulate users directly. But it does propose to regulate the platforms that then must regulate users. Indirectly, UGC is regulated. It’s actually worse, because the state does not set any rules on how the platforms do this that is proportionate and minimally impairing.

As for the CRTC discussion, that isn’t a Charter analysis, it’s a “trust us” declaration that seemingly guarantees the bill will be subject to a Charter challenge, leading to years of delays in implementation as the courts consider the issue.

The updated Charter analysis is ultimately a bust with little actual analysis. Given its vulnerability, Lametti’s no-show at the committee shouldn’t come as a surprise. As a long-time law professor, he has graded enough exams to recognize a failing analysis when he sees it.

Regardless, non-analysis analysis in hand, the Minister appears to be declaring this a victory and demanding that MPs pass the legislation “quickly”. From the CBC:

Heritage Minister Steven Guilbeault today urged MPs to “quickly” pass the Liberal government’s controversial broadcasting bill despite claims that it could infringe upon the free speech rights of social media users.

In an appearance before the House of Commons heritage committee, Guilbeault said Bill C-10 is meant to target foreign streaming companies and social media sites, not individuals.

“Our broadcasters, our production sector and the culture sector as a whole are counting on this new legislative tool to continue to flourish on digital platforms,” Guilbeault told the committee in French.

“The bill is about restoring a balance that the arrival of the web giants has skewed very seriously in their own favour at the expense of local people and businesses.”

Embedded with that article is a video featuring the Minister taking questions from the NDP. The NDP member raised the question about the Minister’s plan to respond to Canadians concerned about freedom of expression being under threat. The Minister then responded by quickly grasping at his notes and showing a document saying how many organizations and people support the legislation. Understandably, the NDP member was perplexed by this response. She asked that if that was his plan. The Minister responded by saying that she asked a really complex question with many parts involved. He then quickly shuffled some papers around and then cited the Charter Analysis by the Justice Department as some sort of proof that the regulation does not infringe on free speech. The NDP member tried to ask again about what could be done to alley fears, but she never got an answer.

Instead, the Minister went on a bizarre tangent about how people who support network neutrality are people who don’t like any kind of regulation at all. It’s spit-take worthy it’s so insane. It basically requires you to take everything that is known about network neutrality and throw it out the window. Then, it requires you to believe that network neutrality is not regulating anything at all and that it’s supporters are against all regulation all the time.

If anything, that weird rant proves that the Minister doesn’t even know what network neutrality even is. Network neutrality is the principal that ISPs must treat packets flowing through their networks equally. There is no preferential treatment of certain packets and there is no throttling or blocking of those packets either. That concept is only possible these days with government intervention. Network neutrality, by its very nature, is government regulation. What’s more, it’s necessary given that ISPs have long wanted to introduce fast lanes to all the products and services they sell while throttling and slowing down competing service. In short, it prevents anti-competitive behaviour by the carriers.

The fact that this needed to be explained just highlights the depths of the Minister’s cluelessness in all of this. Yet, in the midst of all of these mindless rantings, senselessness, and projection, he really honestly feels like he is on the winning side in this debate. By flashing that Charter non-analysis analysis, you almost get the impression that he has vanquished all his foes and all that is left is getting MPs to vote “yes”. It really is exhausting trying to follow all of these logical leaps alone.

Probably the only thing he does seem to understand is that the clock is ticking on this legislation. The sooner he gets this obviously unconstitutional law passed, the more likely he is to not run out on the clock. This is very likely why he wants this law “quickly” passed by MPs. Non of this changes the fact that, ever since the amendment was put in place to strip the user generated content exemption last month, the legislation really hasn’t changed all that much. It still is a new regulation on user generated content and it’s still quite likely unconstitutional. With no resolution on the debate, one can only expect more heated debate about this legislation in the future.

Drew Wilson on Twitter: @icecube85 and Facebook.

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