How the Liberals War on the Free and Open Internet Might Play Out

The Liberals are on a quest to crush the free and open Internet. We speculate on how that might play out.

The other day, we commented on what we probably won’t see in the next government. A lot of it revolves around changes in how carriers operate, but privacy reform did make it into the list as well. So, while we are discussing what we probably won’t see, we decided to go over what we probably will see in the next government.

As we’ve been generally saying from the very beginning, the Liberals are very likely going to win this election. Unless something really weird happens with the vote, we’re very likely headed into a Liberal minority government, proving that this election was generally a major waste of time. The only other outcome we can really consider is a Liberal majority, but that is very far out. Probably the only interesting thing that even happened in the election is the PPC pulling votes away from the Conservatives and the Conservatives actually being worried about this.

So, as you know, the Liberals have been pushing their three pronged war on the free and open Internet. In fact, they are open in this war in their platform by saying that they will execute this plan within 100 days of taking office(part 1, part 2). The three prongs are speech regulation (as seen with bill C-10), online harms, and link taxes.

While all three prongs are promised to be carried out within 100 days, chances are, they are not going to be put together in one big package. This is because, while all three are tech policy issues, tackle very different things. Still, we can speculate on what order that will probably take. This is based on where these laws were in the legislative process before the election was called.

Speech Regulation

The first prong will probably be the speech regulation law. Before the election was called, Bill C-10 made it all the way to the Senate before dying on the order paper. That is definitely a moment where creators and innovators breathed a sigh of relief because their speech won’t be taken away quite as quickly. Still, the election really only bought time and little else.

As demonstrated throughout the process, the Liberals were shoulder to the wheel doing everything they could to crack down on free speech online. Feedback, concerns, common sense, petitions, and even the threat of litigation did nothing to dissuade the Liberals from going full steam ahead on this. With a bill generally already formed, chances are, the bill will get re-introduced as early as possible to get the process started. With the NDP, Bloc, and the Green Party already supporting this, it will probably get pushed through the legislative process very quickly.

While the path to the senate is mostly clear, it isn’t completely clear. There is still the potential for Conservatives to delay the legislation throughout. What’s more is that there is the question of what will happen in the Senate. The Senate, of course, rightly expressed concern about the legislation and ultimately sent the bill on for further study. So, what is likely going to happen is that this will happen again, but we honestly do not know for sure. How long the Senate study will take is definitely up in the air – and is admittedly an area that we are a little more fuzzy on.

Still, this election will probably sap what little appetite there was for an election for a while, so we can no longer really rely on another election to delay things further. Time can be bought, but it’s not an unlimited supply. Where things might really hit the fan is after the bill receives royal assent. The chances of an individual or organization suing the government to put a stop to this madness is pretty much a sure thing. This is ultimately where the possibilities open up wide. Can the law be enforced while litigation takes place or will the litigants be successful in getting an injunction? We don’t really know. Still, the path for this legislation is likely going to be somewhere along the above lines.

Online Harms

The second prong on the war on the free and open Internet is the online harms proposal. Billed as a way of going after racism, terrorism, and other kinds of content, this proposal, as it stands now, could very easily lead to the death of Canadian innovation online. As we pointed out, the proposal asks websites to quantify something that is subjective and prone to change or face fines of $10 million or more. It ultimately puts every website, big or small, into the same basket of “everyone is a large platform”. The proposal has been condemned internationally by well known individuals and organizations as the worst idea in the world.

Unlike Bill C-10, this proposal didn’t make it into legislative form. Instead, the government put together this proposal and asked Canadians to weigh in in what is widely considered a fake consultation. Despite the “consultation by notice”, we responded anyway to help prove that there is opposition to this as well.

As a result, we are likely going to see this take legislative form next. A bill still has to be generated before being tabled. It might be quickly written up, but it’s not as easy as CTRL+C, CTRL+V like what will probably happen with Bill C-10. So, it’ll probably take a little time to get tabled. From there, the battle to stop further damage on the Internet can begin.

Link Taxes

The final prong is link taxes. Built out of a web of lies about how the Internet works, this idea was pushed by heavy lobbying by big publishing in an effort to try and freeload off of a different industry. Essentially, they demand that linking and offering snippets (which is generally protected by Fair Dealing) be turned into a form of copyright infringement. As a result, anything that is aggregated needs to be subject to license fees. Such a way of thinking about referencing material is unprecedented in any discipline, but is the thinking that is actively being pushed by big publishing anyway.

The thing is, while it was pushed by the Liberals, it never even made it into a proposal form. Therefore, out of the three prongs to crack down on the Internet, this was the least developed of the three. So, chances are, this will come to fruition at a later time.

Link taxes have to effects. First, it further puts the squeeze on smaller players. Second, it also cements the position of big tech. When Google started, it was just a couple of servers sitting in a garage. Now, if you wanted to create your own search engine, you have to ink multi-million dollar deals with big publishers, thereby raising the barrier for entry.

The Possible Effect of a Majority

If the Liberals score a majority government, well, God help us all who support a free and open Internet. Generally, it means fewer barriers for the Liberals to crack down on the free and open Internet. There are still ways that this can be slowed down, but those options are actually fewer as a result. Really, this is something we hope doesn’t happen this time around, let’s put it that way.

All of this is a pretty dire situation for the free and open Internet. Ultimately, all of this is the trajectory we are on at this stage. The question Canadians need to ask is, “were we ever going to have a say in all of this?” Ultimately, the answer to that is “no”. You never had a chance to voice these concerns throughout the election, the “consultation” with online harms won’t be considered as anything other than a political shim to get their online harms proposal passed, and the calls for reason will generally get ignored. We’ve seen ministers go full space cadet and dodge questions altogether before and that will probably only continue if we see them face questions at all.

What will it take to divert Canada away from the innovation clear is going to be something pretty dramatic at this stage. At that point, we are relying on unexpected surprises to take Canada off its really bad course. Probably something to hope for, but not something that can be relied upon. Enjoy the relative calm now because we’ll soon have to buckle up for a really rough ride soon.

Drew Wilson on Twitter: @icecube85 and Facebook.

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