Senate Hearings on Bill C-11 – A Look at Hearing 12 (First Segment)

Our special coverage of the Bill C-11 Senate hearings is continuing. This covers the first segment of hearing 12.

The hearings are continuing at the Canadian Senate. They are studying Bill C-11. Indeed, the numbers are definitely getting higher and the pace isn’t slowing down.

For those who are curious, here is the coverage of the previous 10 hearings:

Hearing 1 – Privacy Commissioner and Global Affairs/Justice Department
Hearing 2 – Digital rights organizations and lobby groups (1)
Hearing 3 – Lobby groups (2) and platforms (1)
Hearing 4 – Lobby groups (3) and lobby groups (4)
Hearing 5 – Lobby groups (5) and lobby groups (6)
Hearing 6 – Music Canada / platforms (2) and lobby groups (7)
Hearing 7 – Scholars/researchers (1) and digital first creators (1)
Hearing 8 – Digital first creators (2) / lobby groups (8)
Hearing 9 – Digital first creator (3) / lobby group (9) / platform (3) / Lobby group (10)
Hearing 10 – Record Label / Lobby Groups (11) and Scholars/Researchers (2)

For the 11th hearing, the first segment featured CIPPIC and several experts and scholars. With the exception of one witness, the comments echoed not just the concerns that Section 4 swept in user generated content, but also raised concerns about the ability of this legislation surviving in its current without a court challenge.

Meanwhile, the second segment of hearing 11 featured more lobbyists. While there was a surprisingly dramatic moment with one witness throwing a digital first creator under the bus, there wasn’t a whole lot that really stood out as particularly ground breaking about that hearing.

So, we are continuing with hearing 12. As usual, the video that we are following can be found here. Nothing will beat an official transcript or the actual video in terms of thoroughness. Still, we are happy to provide out own detailed summary and analysis. So, with that, let’s jump into this part of the hearing.

Opening Statements

Peter Menzies opened with his statement. He noted that the development of the internet has caused a good deal of disruption to a number of enterprises while, at the same time, allowing a great many number to flourish. That is the story of progress, that is the story of change. This isn’t the first time it has happened and it won’t be the last. In the case of Canada’s movie production and television, it has created an unprecedented period of prosperity. Roughly 80% growth in a decade. Not only that, but tens of thousands of Canadian’s can make a living via YouTube and other online platforms which gives them unfettered access to a global audience.

Bill C-11, he points out, puts that prosperity at risk. At a time when Canada needs forward looking legislation that will equip it to succeed in the 21st century, Bill C-11 looks backwards towards something called the Broadcasting Act and managed by something called the CRTC. At a time when Canada needs to inspire innovation and adaptation as creative industries flourish, Bill C-11 seeks to stop the infinite opportunities of the internet into an act designed for a world of limited resources and scarce opportunity.

In doing so, he continues, it is creating uncertainty and uncertainty depresses investment and less investment means fewer jobs and opportunities for Canadians. Bill C-11 seems to be inspired by a desire to assist those whose business models are having difficulty adjusting to the internet age. That’s an understandable desire, but to the extent that this overly broad legislation will assist those groups, it will do so at the expense of those who have adapted and succeeded.

As time is brief, he says, he will focus on three points. The first is that he urges Senators to amend C-11 so that it is absolutely clear that under no circumstances will the CRTC have jurisdiction over user generated content either directly or through platforms that depend upon it.

He says that he can’t say he’s read every submission, but as near as he could tell, only the Quebec music industry strongly favours it. If the government wishes to provide support for Francophone music producers, it needs to look for less invasive ways to do it. He thinks it would do the majority of citizens and creators a favour by rejecting this bill and asking the government to work on a 21st century approach to communications. However, with respect, he doesn’t think the Senate is going to do that.

What the Senate could do, he explains, and this is his second point, is further amend this bill so that it only applies to streaming companies with annual Canadian revenue of $150 million or more. Not only will this simplify the original intention of the legislation to get money from web giants, it will minimize the volume of lengthy CRTC processes involved, lessen uncertainty, reduce risk of stalled or stranded investment, and allow speedier money flow for those who the government wishes to flow.

Significantly, he continues, it will allow creators whose goal is to operate freely in a market based entrepreneurial environment to continue their success and innovation. In other words, if government wants money from web giants, just go get money from web giants. If it wants to protect certain groups from change, go ahead and try, but not at the expense of those who are thriving through innovation and adaptation. Narrowing scope will also limit interference with Canadians freedom to choose what they watch and listen to through unnecessary discoverability provisions to within the walls of major streaming apps.

Lastly, he says, pay no heed to those who admit the (couldn’t hear a few words) that are best settled by the CRTC. They are not. Contentious matters will bog down in years of regulatory haggling, court actions, and cabinet appeals. Most recently, as we have seen, cabinet has ordered the CRTC to review its licensing decision for the CBC. Just to give some context, the last time the CRTC renewed the CBC license was 2013. Since 2018, the license was repeatedly renewed administratively until a hearing was held in January of 2021. It took the CRTC 18 months to post a decision. 16 groups then appealed that decision to cabinet. So now, the CBC is unlikely to get certainty on the conditions of its licensing until 2023, 10 years after it was last licensed. Ten years.

That, he explained, is for a CBC license when compared with what C-11 puts before the CRTC is a walk in the park. There are also issues regarding the inherent advantages enjoyed by those experienced in navigating the regulatory system and who speak the language of the CRTC over those who will be regulatory rookies. So, he urges the Senators to act now and for the sake of all involved. Narrow the scope of this legislation before it’s too late.

Robert Armstrong of Communications Médias Inc. then opened with his remarks. He says that he is representing his own personal view and not representing any particular organization that he consults with. He claims that C-11 mainly tries to integrate the web giants into the broadcasting system and to ensure that they contribute to Canadian culture. He calls this an important step to improve the quality of content to Canadian’s.

However, he adds, those internet users must be respected. The CRTC could use its discretionary power in certain exceptional cases regarding internet users. However, C-11 creates different measures for foreign undertakings vs Canadian undertakings. He then suggests certain simple changes. He goes on to talk about maximum usage of Canadian talent of domestic vs foreign undertakings.

After that, he says that the bill seeks to regulate online undertakings that are predominantly from the United States. He goes on to talk about orders in council and the transparency of the CRTC rulings and hearings. After that, he talked about appeals to cabinet.

After that, he recommends a change that compels platforms to negotiate with online creators and called for the rejection of Section 6. He spoke about licenses and public hearings as well as his recommendations to tweaks to the legislation.

Questioning the Witnesses

Senator Pamela Wallin asked to put on his hat as a former CRTC chair. She noted that Menzies talked about how the government is motivated by this bill to extracting big money from web giants, but Section 4 would allow them to extract money from smaller content creators. She asked if that troubles Menzies. Her second question is, as per a previous witness (That would actually be Vivek Krishnamurthy from the first segment of hearing 11), that almost all broadcasting regulation needs to be understood as a form of restriction on the right to free expression. Does Menzies agree?

Menzies responded that, with regards to the first question, the tricky part is, yes, this is what the ministers were saying right from the beginning that the intent was to make sure that the system gets money from web giants. There is a threat to the traditional system and we can debate that because there has been lots of private investment. Cable companies has been less able to contribute to traditional sources of revenue because of the success of streaming companies. So, his suggestion is that, if that’s the problem, just address the problem. There is no need to get into user generated content and all of these other areas and start dealing with small businesses or advancing businesses or people who are taking advantage of the beauty and wonder of internet and finding success. There is no need to shut that down.

He continues by saying that if you want to get money from the big companies and ensure that they contribute to these traditional funds, which has always been two thirds Anglophone and one third Francophone as per the current guidance to Canadian heritage. If it’s the traditional funds you are after and it’s the big web giants that you are concerned with, just focus on that. There is no need to get in to the rest of it.

Senator Wallin then reiterated the statement that almost all broadcasting regulation needs to be understood as a restriction of freedom of expression. Does Menzies agree?

Menzies responded that, yes, he does. One of the things that people look at with Bill C-11 is that they look at Bill C-11 itself and see no threat to freedom of speech within that. The difficulty is that C-11 is an amendment to the Broadcasting Act, and in the Broadcasting Act, the CRTC is told to ensure that the system is a good standard or high standard. That gives it lots of leeway. It used that in the N-Word decision recently over the (didn’t catch this part). It use it to justify its decision on RT. You may agree or disagree with those decisions. People can debate those, but at the same time, there’s no question that the CRTC is instructed, through the Broadcasting Act, to exert itself where it disapproves.

In terms of freedom of choice, he adds, our freedom of expression is not in just what we say, it’s in what we choose. It’s in what we hear as well as what we speak. Personally, he has never had any problem with discoverability. There is a search tool on Netflix. He types in “Canadian” and, there it is. So, he thinks he has to be really careful about that.

Senator Julie Miville-Dechene said that she wanted to steer Menzies into a different direction. She wanted to ask him about pornography. In his opinion, do major porn platforms get targeted by Bill C-11, or, more broadly, could they be targeted by the CRTC because we know that now, the industry is migrating online and, therefore, it exists and it is a game changer for child protection and protection of children, what Menzies tell Senators about that?

(Uh, has the senator been living under a rock for the last two decades plus? Porn online has existed since at least the 90s, probably earlier then that. Having said that, this is actually an angle that doesn’t get talked about much. Bill C-11 does cover these platforms and I seriously wonder how bad it is for the CRTC officer who draws the short straw at the regulator to make sure all the porn is “Canadian enough”. At the very least, I guess those government sponsored therapy services are destined to get a heck of a workout once they start enforcing the bill on those platforms.)

Menzies responded that he can tell Senators that for about 25 years, the CRTC has been licensing (brief pause) adult content, commonly known as pornography through cable companies and it has been available for a very long time. So, it is completely within the CRTCs jurisdiction. It actually started because satellite companies were providing it to people and it proved to be (pause) immensely popular. Then, cable companies got into it and they manage it so that the CRTC licenses it. It oversees it and, through Bill C-11, he can’t imagine that it would not be captured. He thinks it would actually be exceptional (he chuckles. Senator Miville-Dechene was also seen being at least mildly amused). He can’t imagine the CRTC saying, ‘OK, we are going to do all this, but we are going to leave online porn untouched’. They’ll get a lot of pressure from the cable companies who have lost a lot of money, he’s guessing, because of the fact that pornography is available online for free rather than having a cable subscription. So, yes.

Senator Miville-Dechene said that, given Menzies experience as a CRTC commissioner, would he therefore say that this could (didn’t catch that word) the CRTC’s purview to ensure that the porn websites verify age which is similar to what we see in cable distribution settings.

(An age verification rule is not a part of Bill C-11. Additionally, you really don’t want to open that can of worms given how big of a mess Bill C-11 already is.)

Menzies commented that he is not completely up to date with what they do with cable. It is up to each cable company to file their standards to the CRTC. He thinks that a lot of that access is done within the home. He’s not sure there is a verification of age that takes place. If that is the Senators wish, she would have to take that case to the CRTC in a hearing, make an application to have that done. Then, he would expect that would put the CRTC in a position of trying to say, ‘OK, if we are going to have to apply this rule to online pornography, should we not have the same rule for cable?’

Senator Miville-Dechene asked if it could be in the mandate of the CRTC to ask online platforms to do age verification or whatever method to prevent kids-

Menzies responded that Bill C-11 gives the CRTC authority over all audiovisual content on the internet. So, that would be an opportunity for the CRTC to take that and he’s pretty sure that, from his point of view, that the $150 million would capture online pornography because Canada probably has the globe’s leading online pornography companies. (I actually looked up MindGeek thinking, for some reason, that they were British, but apparently, they are Canadian located in Luxembourg. The more I know, I guess.)

Senator Leo Housakos noted that Menzies have said in the past that C-11, wit the powers that it gives the CRTC would put at risk 100,000 content producers in the country who are presently using YouTube. Menzies mentioned that it would put that 100,000 content producers at risk. He asked if Menzies could elaborate what exactly he means by that. Does he mean that there is a risk of them leaving Canada or are there some other kind of repercussions if this bill passes without amendment?

Menzies responded that he thinks there is a risk of them just getting captured in this regulatory maze. Years ago, he remembered watching a YouTube video of a couple of guys on the Yukon River just west of Dawson City. One guy had a fiddle and one guy had a guitar and they were singing their tunes. That YouTube video went to an indigenous community globally. He remembered looking at these two guys and saying, ‘imagine all the work they would have to do to go through a regulatory system to be able to tell their story and sing their song.’ From Dawson City. Way up there, a couple of (I couldn’t catch that word) guys be able to tell that story.

This, he explains, will intimidate that process. The CRTC has still to make the decision whether that’s commercial or whether that’s in or whether that’s out and that sort of stuff. Those guys don’t have a chance. They don’t have GR people. They don’t have regulatory affairs people. Those are the people he’s thinking about. They are the indigenous and underrepresented groups that have to go through this maze of bureaucracy that the CRTC involves funding and that sort of stuff. All these guys want to do is tell their story and play their music. So, that’s probably the best example he can give.

There are, he says, larger companies that are facing more of a threat, but that’s the broader picture that he is looking at.

Armstrong was asked if he would like to weigh in. Armstrong responded that there are many misconceptions about what Bill C-11 is doing. What it proposes. In this case, he doesn’t think it will have any affect on small players. He thinks the CRTC will have the good sense (LOL) to simply exempt all of the small players and by small players to be defined at a public hearing hopefully which the commission would hold. So, all the people that are producing less than $30 million in revenues, let’s take that as a potential threshold (doesn’t exist in the bill). It could be higher, it could be something else. They simply won’t be affected. It will simply pass over their heads. It will have no effect.

(This is pretty much wishful thinking that depends on some very unlikely circumstances.)

Senator Housakos then followed up by asking should this committee and should parliament leave the legislation up in the air when it comes to protecting small independent content producers or should we make amendments to ensure that the CRTC isn’t given an option on this issue. He thinks it’s the most Canadian, it’s important. He also attached another question. Does both witnesses believe it would be helpful if Senators attach regulatory directives to this piece of legislation before they pass it. That would give more rigid guidelines to the CRTC.

Armstrong responded that the answer is simply “no” and “no” (yeah, it’s no big deal until we actually address the problem. When we do, they suddenly have a problem with that. Fancy that.) He thinks that this kind of issue should be left to the discretion of the CRTC (yeah, out of the prying eyes of public scrutiny of course. It’s best that we destroy the lives of 100,000 Canadians under the veil of secrecy apparently). There is an attempt within Bill C-11 with paragraphs 4.1 and 4.2 to control, to some extent, and they are difficult to understand and confusing, but he thinks they are adequate (they are the opposite of that) and, if they are not adequate, then, as other witnesses have pointed out, simply remove everything and leave everything to the discretion of the CRTC.

He further says that he has confidence with the CRTC, which occasionally makes mistakes (occasionally?) as it may have done in the CBC decision on the N-word, but, in all of their regulatory bodies and institutions that make mistakes, uh, occasionally, he thinks the CRTC has, by and large, has exercised it’s discretion appropriately and adequately, let’s say.

(Wow, talk about a really not reassuring assurance there. That answer did not help your case there, dude. Can’t say I’m surprised, though, when the secret intention is to get rid of user generated content production within Canada altogether, though.)

Menzies responded that the problem with that is when you leave the door open, sooner or later, one aggrieved group or another will appear before the CRTC and ask for that to change. $30 million sounds reasonable. $150 million, we’re just arguing over price then. Sooner or later, that will occur. Somebody will come and ask the CRTC to exercise that jurisdiction because it works for them. The people he’s talking about will have no voice in front of the CRTC. So the CRTC will deal with the evidence in front of it. Those two guys in Dawson City won’t have a chance in terms of trying to represent and make their case before the CRTC. They probably won’t even know what is going on, and the next thing they know, they will not be able to upload to YouTube. So, exercise your discretion, draw a line as quick as you can.

Armstrong argued that hundreds of people will have the opportunity-

Menzies responded “no they won’t!” (time ran out)

(Nicely responded Menzies)

Senator Marty Klyne commented that it is very apparent that he is very concerned about the amount of power the bill purports to give to the CRTC. From what he gathers, Menzies is of the position that regulation of online companies is unnecessary (Don’t think that is actually his position). Many witnesses Senators have heard from have referenced that Canada is in a golden age in terms of investment and job opportunities (I think Senator Paula Simons raised this point too) in the media sector due in part to major online companies such as Netflix and Disney+. His question is if Menzies thinks that the level of investment will decrease if this legislation passes or are these companies producing content at such a rate that this legislation won’t have much of an impact at all.

Menzies responded by correcting Klyne in saying that it’s not like he doesn’t think that online companies shouldn’t be regulated at all. There are lots of areas in terms of algorithms, privacy, data collection, and that sort of stuff that a modern framework should deal with. If you are a company investing $800 million per year privately in Canada and then you are mandated to spend, he heard the guess being 30% in revenues or something like that, through funds, you run out of money. You got to take it from somewhere. You are either going to take it from unofficial unapproved funds and investment there and switch it to approved funds, it’s not like there’s going to be more money, you are just going to move money around.

Senator Paula Simons has the Broadcasting Act in front of here and she’s looking at Section 7. It’s where she runs into a problem. She read it out and the content of that section is completely unintelligible (which is her point). So, her question is, what does Section 7.7 actually do to the broadcasting Act in Section 7?

Armstrong responded that Section 7 (7) expands expands considerably the power of the government to give the nature of the direction which the government can give to the CRTC so it reduces significantly the power the CRTC has. In this sense, Bill C-11 reduces significantly, potentially, the powers the CRTC has and hands that power over to the government of Canada.

By the way, he adds, the directives that the CRTC, that the government now, according to the bill, the directives will no longer have to be presented to a committee of the House of Commons. They will be published and read out in the House of Commons, but it will not be presented to the Committee of the House of Commons.

Senator Simons asked if this politicizes the issue and deny people the right to appeal.

Armstrong stuttered and said that the denial to appeal is elsewhere in the bill. Yes, there is a denial of appeal in the direction of the CRTC. He then plugs an article he wrote and talked about what the bill does in this area.

Senator Simons commented that they’ve had one witness, Monica Auer (reference to the 7th hearing, first segment), who recommended deleting Section 7.7.

Armstrong responded that this is exactly what he said in his presentation.

Senator Simons commented that just when she thought she understood all the issues and pitfalls in this bill, she discovers something new and exciting to think about. (I think this is a rare appearance of sarcasm)

Senator Fabian Manning commented that as a former vice chair of the CRTC, Menzies knows about the capacity of the organization. Menzies has expressed concerns about those raised by earlier witnesses (too many to count at this point) stating that the challenge of implementing this bill will for the CRTC will be considerable. Manning is wondering what Menzies sees as the most serious shortcomings in that regard and if Bill C-11 is passed without amendment, how long will it take for the CRTC to build the capacity required to manage what new responsibilities it will have with the passage of Bill C-11.

(My guess is that it would require to the end of time and the financial resources of the entire planet because we are literally talking about an organization trying to regulate all audiovisual content on the freaking internet.)

Menzies responded that he thinks the CRTC is going to handle all of the duties through C-11. First of all, it needs a new chair which they are having difficulty finding (gee, I wonder why they need a new Chairperson). It’ll take that person, it depends the experience of that person. His own thoughts is that that person should just be a purely change management person who has to put in new structures and that sort of stuff. There is a lot of things involved like user generated content that are entirely new to the CRTC. They have to educate themselves and get themselves around. So, he would think that it would take them two and a half years not counting court appeals and court challenges to C-11 (there’s going to be a LOT of those) to come out with a decision that even dealt with scope in terms of what Amrstrong and himself has been talking about – whether it is #30 million or $150 million or something like that.

Definitions, he continues, they are looking at what actually is a commercial enterprise, that sort of stuff. Just the basic stuff, two and a half years (so, the tally so far is 5 years). During that period of time, everybody involved trying to invest in that system doesn’t know what the rules are. So, that’s a problem.

Senator Manning then turned to Armstrong to talk about Section 7. He also asked about whether or not Armstrong believes that it is imperative that the government share it’s policy direction sooner rather than later.

Armstrong spoke about the call for deleting Section 7.

Senator Donna Dasko noted that Menzies doesn’t like the bill. He would rather not go ahead with the bill if it were up to him. At the same time, Menzies thinks that the Senate will pass the bill. So, in that scenario where the Senate would pass the bill, should she understand that the only thing that Menzies would change in the bill would be to put a threshold in? She noted that that is how Menzies would deal with it is take out Section 4.2 and put in a threshold. So, is that the only change Menzies would make to the bill?

Menzies responded that no, she can assume that he had 5 minutes to pick two or three that he could focus on and those are the things that he focused on. He thinks that Armstrong has made some excellent points regarding the independence of the CRTC and it’s importance of being distant from the government. This goes back to the Railway Act over 120 years ago when the government created regulators so that government wasn’t making political decisions over who was using telegraph and who wasn’t. So, it’s extremely important that the CRTC be arms length and long arms length. The arms are pretty friggin short right now and they’ve been getting shorter all of the time and this bill makes the arms non-existent in terms of that.

For the CRTC to have credibility to the public, he added, and with the industry, it needs to know that people can’t play political games and run around them and go to Cabinet, no matter which party or who’s in power, and make their case and get an order in council telling the CRTC what to do. It creates a cloud over the CRTC’s head where they are second guessing themselves every time, trying to figure out, ‘OK, if we make this decision like what happened with the CBC, is somebody going to run to cabinet and come back and tell us we’re wrong’. You are going to be wrong sometimes.

Senator Dasko responded that, so, Menzies would go through the bill and start crossing stuff out – a whole bunch of things.

Menzies responded that if he could do everything all over again, we would have something like what was in the Broadcasting and Telecom legislative review panel where we would have a Canadian Communications Commission that was built around the understanding that the internet is now our central communications platform. However, he is kind of a loser with those sorts of arguments, so he is trying to focus on the things that you can do that will make this better and less dangerous.

Senator Dasko responded that, so Menzies main priority would be dealing with 4.2 and putting in a threshold.

Menzies responded that on Armstrongs point, that’s really important that the CRTC remain independent.

Senator Dasko turned to Armstrong and asked for clarifications with respect to 18 (1) and 9.1 (1) with respect to consultations.

Armstrong responded by talking about the consultations, licenses, and orders.

Senator Bernadette Clement noted that witnesses in the panel and elsewhere have commented that the CRTC processes are cumbersome and not necessarily accessible – not streamlined. Maybe that speaks to a lessening in public trust in these institutions, she doesn’t know. Then, should the public just trust the platforms to properly curate Canadian productions or Canadian content – especially since that Canadian’s don’t have much access to information on how those platforms work. She goes to the banner that says “Canadian content”, is that enough? Should we trust the streamers? We don’t necessarily trust the CRTC according to some witnesses. Should we trust the platforms?

Menzies responded that he doesn’t think it is a matter of whether you trust the CRTC or not. The people there are trying to do the best job that they can, but there are processes which involve broad consultation. One of the things that you’ll notice with the Broadcasting Act is that the word “consumer” doesn’t exist. This is an act that is designed to redistribute income gathered by cable companies to artistic groups in order to create Canadian content. None of it is market based. Now, you can have a big debate about that if you want, but it’s largely an industrial subsidy. It’s not about creating content that is going to be popular, it’s making sure that Canadians stay in the game in that sense. So, there is a long process involved and many stakeholders are involved and as Armstrong just said, if you show up, you are going to have more influence then if you don’t.

So, he continues, if you are from Montreal, you are a two hour drive away. If you are in Prince George, British Columbia, you are not going to show up and your voice is going to be less well heard. So, it’s really about being targeted is the point he is trying to make with Senators with C-11. Target. Decide what you want to do. If it’s the big streaming companies you want to have, that’s fine. Why should Canadians trust big streaming companies? There’s no reason for them to trust them any more than they trust CTV or CBC who are all making content decisions on their behalf, but they are making them based on what they believe people want to watch whereas the CRTC will be making decisions based on what they think people should watch. He thinks that is a big difference.

Senator Clement asked if we should assume that Canadian want to watch Canadian stuff.

Menzies responded that they always say they do.

Senator Clement cut him off and said that nobody is making that assumption.

Menzies responded that they will always say they do if you poll them. They want to have good Canadian stuff, but do they watch it? According to the broadcasters, no, they don’t. The broadcasters have worked for years to have Canadian content out of prime time. Canada is one of those weird countries where our broadcasters aren’t even really in charge of their programming. Whatever the Americans are doing to switch their programming around to their prime time shows, impacts our programming decisions for prime time. We are not a sovereign nation when it comes to programming our television in terms of that. So, that’s the way it’s been and he’s not sure that is going to change any time quickly unless you let Canadians free to serve Canadian audiences, but that’s tricky.

Senator Clement offered Armstrong the chance to comment as well.

Armstrong responded that only to add that we can trust web giants to pursue their own interests. He thinks we can certainly trust them to do that as most companies do. The difference between web giants and licensed Canadian broadcasters is that licensed Canadian broadcasters are obliged to offer certain kinds of Canadian content by the nature of their licenses. The intention of Bill C-11, the primary intention as far as he can see, is to bring the web giants into the (ambit?) of Canadian regulation in a very loose and flexible way. That is the intent so that they will not only pursue their own self interests.

Senator Jim Quinn commented that it was interesting to hear the different perspectives and that the witnesses have brought information forward that underscores with some of the earlier things that they’ve heard with regards to concerns regarding C-11 and also with respect to user generated content and the role of the CRTC. His question is, should we not bring clarity to the act? His understanding is that the big guys, the streamers, are in the act and the little guys, user generated content, are out of the act. Shouldn’t it be made clear in the act? Should there not be amendments to bring that aspect forward so that it is very very clear that there is no chance that a regulatory body do a different interpretation of what the government intends to do.

Armstrong responded that he thinks that is the intention of 4.1 and 4.2. 4.2 of Bill C-11 is to eliminate user generated content except in exceptional circumstances where the user generated content or the entity that is providing the user generated content or so-called user generated content is, in fact, behaving like a web giant (yet it didn’t go down that way. It does not differentiate from one form of content over another and it absolutely does not eliminate user generated content from the bill. It actually does the opposite of sweeping in user generated content into the bill). So, that was the intention of 4.2. He doesn’t think we are going to get anywhere trying to play more with that language (false). It is about as good as your going to get (for the establishment, maybe, because it wipes out the competition).

He continues that it’s very confusing, that he will admit and he thinks there are two options. One is to leave those two paragraphs in and accept that they’ll be- it’ll take about a year or two about how they will take effect (a non starter, so out of the question). The other possibility is to take the two of them out and leave the discretion to the CRTC (Section 4.1 is actually needed to make clear that user generated content is out. Neither choice is a good one, but those are the options he likes, so of course he’s going to float those bad ideas). The CRTC has had the potential since 1991 to regulate online services. Bill C-11 gives them nothing new in terms of the power to regulate (even supporters would disagree with that assessment, otherwise, they wouldn’t even care about this bill) except certain tools. It doesn’t change, materially, the definition of broadcasting. The CRTC could have entered into the regulation of online broadcasting years ago. It chose not to do so. It exempted online broadcasters and this bill attempts to prod them in that direction (a bill you just said does nothing new. Brilliant.)

He thinks that if they were given the opportunity, if 4.1 and 4.2 were not present in the bill, they certainly aren’t going to regulate user generated content in the usual sense of the word.

Senator Quinn responded that Armstrong does touch on one thing that a lot of people have noted in that 4.2 is confusing about direct or indirect revenue. So, if we don’t clarify that and leave it in, then the fear is that the CRTC will have powers within their authority to bring in rules that may, in fact, to cause user generated content providers to be touched by this.

Armstrong responded that the CRTC has no interest in doing that. In fact, paragraph 9 (4) of the existing Act tells them not to regulate where the regulation does not have a material affect or impact on the realization of the objectives of the act.

With that, the hearing concluded.

Concluding Thoughts

Personally, I found it rather telling Armstrong reacting to some of the suggestions of fixing the legislation. On the one hand, he was sitting there saying that Bill C-11 doesn’t touch user generated content and even goes so far as to say that Bill C-11 doesn’t change anything with the CRTC and the regulation of content. Yet, at the same time, when he was asked about the clarification of Section 4.2 to ensure that user generated content is out of the bill, he got all excited and viscerally objected to the notion.

The bottom line on that is that you can’t have it both ways. Either Section 4.2 doesn’t regulate user generated content and it’s no big deal to clarify the language, or 4.2 does regulate user generated content and clarifying the language is absolutely needed. You can’t sit there and say that Section 4.2 is no big deal, but strongly reject changing the language despite it being no big deal, nothing to see here. Anyone who takes up that position is simply lying about what’s going to happen if those sections are left in.

What was also kind of ridiculous is that the same C-11 supporting witness was arrogant enough to basically feel like he knows more about the CRTC than a former CRTC co-chair. Like, really? You’re seriously going to take your shilling that far. I just laughed at the audacity of it.

What is also interesting is that now you have two former CRTC top brass basically coming out against this legislation. Previously, we saw Tim Denton basically warning of the dangers of Bill C-11. Now, we have a former CRTC co-chair making the exact same warning. The current CRTC chair admitted that the bill regulates user generated content. This over top of the Canadian Privacy Commissioner making the same conclusions about what the bill does with respect to user generated content. This also over top of the text of the bill basically saying that the bill is going to regulate user generated content. I mean, how much more evidence could you possibly need? The evidence is overwhelming.

Also, to extend on what Menzies talked about in reference to the content creator who made music in Dawson City, one of the many fears is the message that this bill sends. The government is sending the message loud and clear that if you are a digital first creator making user generated content on any platform, then the government is going to ensure that you never make a living off of it. The government is actively wanting to discourage people from engaging in this activity and is wanting to send a CRTC attack dog to ensure that you never do.

It’s a brutal message that this sends and it will send a chill throughout the various communities. This both for people thinking about jumping into the content creation area of the internet and more established creators who are already wondering how to either avoid these regulations or possibly moving out of the country like they are some persecuted refugee.

The knock-on effect is that it also sends a message to anyone trying to innovate in Canada. It sends the message that innovation and small businesses are not welcome in this country. If you are not captured and regulated into the ground by this bill, then the other pieces of legislation will fix that. There is no way around it, the message this is sending is terrible.

Finally, the defence of this legislation is extremely bad. It largely sticks to generalities and assumptions which has always been the Achilles heel for supporters. There is no viable defence of this legislation that I’ve see to date. Here we are, 12 whole hearings in, and no one can come up with a reasonable way to defend this legislation. At best, supporters are trying to misrepresent the facts and the criticisms. Whether it is claiming that critics don’t think Canadians want to see Canadian content or Section 4.2 doesn’t regulate user generated content or a host of any other bald-faced lies they come up with to justify their stances, not being truthful about the situation is simply not helping the supporters cause here. If there is a viable defence of this legislation, we have yet to see it up to this point.

Drew Wilson on Twitter: @icecube85 and Facebook.

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