Pablo Rodriguez Forges Ahead With Censorship Legislation (Bill C-11)

Canadian Heritage Minister, Pablo Rodriguez, is forging ahead with Bill C-11, Canada’s current social media censorship bill.

The censorship legislation is moving ahead with a highly motivated Pablo Rodriguez at the helm. Bill C-11 was introduced earlier this month and, based on our analysis, contains largely the same problems as Bill C-10 did previously. The transition from Bill C-10 to Bill C-11 effectively moved a few deck chairs while attempting to sink free speech online. Essentially, unless you are producing a simple slide show with no audio component, your content would fall into the regulatory crosshairs of the CRTC (Canadian Radio-television and Telecommunications Commission).

How does one’s content become subject to the CRTC? This is inherent because of a provision in the legislation. That provision says that if a unique ID is assigned to content, then it would be subject to heavy regulation. What kind of unique ID? Anything that is “under an international standards system”. A basic URL would fall under such a system. So, the moment your content is uploaded, then the CRTC is free to regulate it as they see fit.

Proponents, however few they are, insist that your cat video’s are safe from regulation, so there is no need to worry. However, this is easily debunked because when money changes hands somewhere along the line, then they get regulated. Think about the ads you see on YouTube, for instance. Whether it is in the video itself, off to the side, being made by the uploader or being made by YouTube, that alone ensures that CRTC can regulate that content.

So, the natural question is, what is the governments intention when it comes to actual regulation? Simply put, the Canadian government is trying to frame the entire Internet as just another cable TV channel. Obviously, cable TV and the Internet are two completely different technologies that can’t even be in the same class, but the government insists that they are legally one in the same. At issue for the government is supposedly trying to ensure Canadian content is seen and that Canadian produced content is more visible.

The problem with that is that Canadian content has always been visible. Canadian producers are able to jump into the ecosystems of YouTube, TikTok, Twitch, and other platforms and showcase their content without hindrance, so what’s the problem? Well, the Canadian government isn’t convinced that such content isn’t “Canadian enough” and wants to increase the standard for “Canadianess”. Essentially, they want YouTube videos be primarily about Canadian stuff, made by Canadians, produced by Canadians, and is translated into English, French, and a plethora of indigenous languages.

This is where the bill starts delving into what is the technical definition of censorship. For the Canadian government, anything that is deemed “not Canadian enough” will then get pushed down the recommended page. So, if you would otherwise have your content recommended to a potential viewer, then you might get bumped out in favour of government hand-picked “Canadian content”. Anything not “Canadian enough” will get relegated to back pages and pushed off recommendation lists as a result.

The next obvious question is, “who does this benefit?” Ultimately, it is legacy corporations who want their content promoted over everyone else. Large Canadian media companies would have their content promoted and highly visible to viewers (at least in Canada). They get the ad revenue and benefit, in theory, to a captive audience. This pushes competing content, Canadian or not, to the side lines in the process, interrupting and damaging the much more open content ecosystem.

Some supporters might chime in and say that the bill explicitly says that it does not force large platforms to implement specific algorithms. That is technically true, but highly misleading. The legislation doesn’t directly tell a platform like YouTube to “implement this algorithm”, however, the legislation does say, “do whatever you like with the algorithms so long as our hand-picked Canadian content wins out in your recommendations”.

You might be asking at this point whether something like this is constitutional. In our view, this legislation is highly unconstitutional and will inevitably make its way to the Supreme Court of Canada. The Canadian Charter of Rights and Freedoms explicitly addresses freedom of expression. The Charter notes:

2 Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

Subsequent legal analysis bolsters the argument that this legislation violates free speech. From the government of Canada:

3. Does the law or government action at issue, in purpose or effect, restrict freedom of expression?
(i) Purpose

Where the purpose of a government action is to restrict the content of expression, to control access to a certain message, or to limit the ability of a person who attempts to convey a message to express him or herself, that purpose will infringe section 2(b) (Irwin Toy Ltd., supra; Keegstra, supra).
(ii) Effect

Even if a purpose is compatible with section 2(b), an individual may be able to demonstrate that the effect of the government action infringes his or her section 2(b) right. In this situation, the individual must show that his or her expression advances one or more of the values underlying section 2(b), e.g., participation in social and political decision making, the search for truth and individual self-fulfillment (Irwin Toy Ltd., supra; Ramsden, supra). While more recent Supreme Court decisions still refer to this principle of showing the effect of government action, the Court does not appear to apply with a great deal of vigor the requirement that an individual show an advancement of values, tending instead to easily find a restriction of section 2(b).

If a court concludes that the government action, in either purpose or effect, infringes section 2(b), it will then consider whether the limit on free expression is justifiable under section 1.

1. Section 2(b) – A requirement for positive government action?

Freedom of expression usually only requires that the government refrain from interfering with the exercise of the right. ““The traditional view, in colloquial terms, is that the freedom of expression contained in section 2(b) prohibits gags, but does not compel the distribution of megaphones”” (Haig, supra at page 1035). In general, it is up to the government to determine which forms of expression are entitled to special support and where the government chooses to provide a platform for expression, it must do so in a manner consistent with the Charter, including section 15 (Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Siemens, supra at paragraph 43; NWAC v. Canada, [1994] 3 S.C.R. 627).

However, in certain limited circumstances, section 2(b) will require the government to extend an underinclusive means or platform for expression to a particular group or individuals (Baier v. Alberta, [2007] 2 S.C.R. 673). These circumstances will be determined pursuant to the factors set out in Dunmore v. Ontario, [2001] 3 S.C.R. 1016 and adapted to a 2(b) context in Baier (supra at paragraph 30):

1. that the claim is grounded in a fundamental freedom of expression rather than in access to a particular statutory regime;
2. that the claimant has demonstrated that exclusion from a statutory regime has the effect of a substantial interference with section 2(b) freedom of expression, or has the purpose of infringing freedom of expression protected by section 2(b); and
3. that the government is responsible for the inability to exercise freedom of expression

(emphasis mine)

One of the apparently confusing aspects about this is whether the legislation directly impedes the ability for users to upload content. That is actually not at issue as the legislation does not stop someone from uploading content in the first place. However, that actually matters little when asking whether or not this legislation is actually censorship. The government can’t actively limit said expression in the first place. What the government is doing in the legislation is limiting Canadian’s ability to express themselves by basically ordering private companies to diminish the reach of said content. It’s one thing for a private company to curate content, but it is quite another when a government interferes in this process.

If Canadian content is actively being pushed down a recommendation list at the behest of the government, that, in our view, qualifies as censorship and an infringement of the Canadian charter. The government had a hand in suppressing content simply because it doesn’t deem that content “Canadian enough” – even if it is produced by a Canadian, it might still be actively suppressed in the first place.

Of course, freedom of expression is an afterthought for the current government on this issue it seems. After (thankfully) failing to pass it before the last election, the Liberal government said that they would pass this along with other catastrophic pieces of legislation within 100 days. They are trying to stick with that deadline as best they can.

Rodriguez recently commented that the legislation was “hijacked” by critics while also saying that all the problems have been addressed. This didn’t sit well with critics for obvious reasons. From Michael Geist:

Canadian Heritage Minister Pablo Rodriguez appeared at the CMPA’s Prime Time conference last week, calling on the film, TV and broadcast sectors to become even more vocal in defending his Bill C-11. The bill, which has been the top lobbying priority of the sector for years, opens the door to regulating user generated content and asserts jurisdiction over all audio-visual services worldwide. There are several elements worth noting in the question-and-answer session with Rodriguez, not the least of which is the insistence on inaccurately claiming the new bill addresses concerns with regulating user generated content. When asked about the issue, Rodriguez responded:

There’s people that will always be opposed to it…there was some concerns about social media, that’s true. And you know what, we listened, we took note, and we fixed it.

It is disappointing that Rodriguez has quickly adopted the same tactics used by Guilbeault in suggesting that criticism is founded in a desire to avoid regulation and by doubling down on the easily refuted claim that he has fixed the concerns about user generated content regulation. The “we fixed it” claim seems based on the premise that Canadians will simply stop reading his bill after Section 4.1 and not continue to Section 4.2, which plainly creates an exception to the exception that opens the door to CRTC regulation of user generated content.

Yet it was his call for more vocal lobbying that is particularly disconcerting. Echoing similar comments from former Canadian Heritage Minister Sheila Copps earlier in the conference, Rodriguez had the following exchange:

Q. During the height of debate last year, the opposition and some commentators criticized the Broadcasting Act legislation as being too broad and giving too much power to the CRTC. I’m wondering what your thoughts are on that criticism?

Rodriguez: Well again, it came from a lot of people who don’t want the bill at all. The problem is the bill was hijacked and it became about freedom of speech when the bill has nothing – absolutely nothing – to do with freedom of speech. Instead of talking about contributions to our culture and our productions, actors, film and television industry, we start talking about cat videos. Cat videos. It was surreal. I was in Parliament and I was looking at my colleagues and Steven Guilbeault having to get up and answer questions about cat videos.

But, they were extremely well organized. And that’s where “us” – and I mean you guys – were not vocal enough. So this time, I need you, we need you, all of those that support the bill, we have to be more vocal. We need those voices to be heard.

Q. That sounds like a call to action.

Rodriguez: It is. It is. It is a big call to action.

The suggestion that somehow proponents of the bill were drowned out during the Bill C-10 process is laughable. Indeed, the Canadian Heritage committee studying the bill scarcely heard from anyone who wasn’t a vocal supporter. In the process, digital first creators, Internet platforms, and a myriad of independent voices were actively excluded from the bill’s review.

Further, the claim that the bill was “hijacked” is an insult to the many Canadians who reasonably expressed concerns about the government’s decision to amend its own bill by removing the exclusion for user generated content. Indeed, Rodriguez can’t have it both ways, claiming on the one hand that he has fixed the concerns and on the other dismiss the concerns as nothing more than criticism from people opposed to the bill altogether.

The Minister also, evidently, released an ad getting his industry pals to help him hawk his legislation. That ad also received criticism:

Hmm. Our quotes are missing. What this looks like though is the people who will win the lottery from the bill are happy with it. #shocked @mgeist
looks like they skipped you too.

The downside in all of this is the fact that the Bloc supports this censorship bill. So, it’s basically as good as passed regardless of whether the NDP flips over to opposing this or not. What’s more is that there’s way too much time on the clock to simply delay it until it dies on the order paper at this point in time. This really leaves only litigation and the Canadian courts to save the day. The only reason we can think of that these actions are being taken is to try and pretend that this was universally called for when the reality is that experts agree that this bill should be scrapped. Unless the bill gets a major re-write (it won’t), then nothing will really change that.

Drew Wilson on Twitter: @icecube85 and Facebook.

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