Senate Hearings on Bill C-11 – A Look at the First Hearing

Hearings are under way in the Canadian Senate, discussing Bill C-11. We take you directly into the meeting.

Earlier this month, we reported how that the Canadian government has jumped the gun and commenced hearings before the first official sitting day of the Canadian senate. What was remarkable was how the senate literally had nothing but the Bill C-11 hearings. You’d almost think that Senators had no business other than discussing the possibility of censoring social media, but here we are.

Unlike the house of commons level, the meetings appear to be much less lopsided towards people supporting Bill C-11. While the numbers suggest that the witnesses were still outnumbering opponents (a situation that is definitely not reflected by the wider society), it wasn’t comically so to the point where only one person was brought in for the purpose of supporters getting their chance to berate and verbally abusive towards a critic. So, there was a chance that maybe the Senate will actually conduct a proper study in the legislation after all? We’d only know for sure once the hearings get under way.

Today, that did happen, so we are examining the first of two meetings that was scheduled today. A video recording is currently up, so we’ll be using that as our reference. Obviously, nothing will beat the actual recording or an actual transcript because summaries will invariably lose some nuances and tidbits along the way. Still, the aim here is to get a general sense of what was said during the meeting.

Opening Statement of the Privacy Commissioner

The Canadian privacy commissioner was represented with the representative of Philippe Dufresne. Dufresne opens with an interesting point that one of the impacts Bill C-11 has on privacy is how much information is going to be collected for the purpose of enforcing this legislation.

Indeed, if you are going to determine what is “Canadian” and what isn’t, a starting point is very easily going to be how platforms will determine what is Canadian and what is not. A critical element is going to be asking if the uploader is Canadian which would undoubtedly be a starting point to this. Determining if a user is Canadian or not would amount to personal information. So, a very valid question, how much personal information will be gathered, stored, and distributed by platforms for the purpose of complying with this legislation?

Dufresne commented that a full privacy assessment will need to be conducted with the CRTC (the regulator that would be tasked with enforcement of this legislation).

Dufresne also noted that the bill could allow the CRTC to identify an individual audience member with the information that is collected. He notes that it is essential that such information should be anonymized and that his office is ready to lend their expertise in this area. Dufresne commented that the Broadcasting Act could be amended to include privacy as a policy objective of the Act (Similar to the Telecommunications Act).

Before closing, Dufresne noted that European law allows for the turning off of recommendations to maintain the privacy for users who want it.

First Round of Questions With the Privacy Commissioner

When the questions start, Conservative Senator, Leo Housakos, opened up with how the government said that user generated content was not regulated, however, the CRTC contradicted that. So, the Senator asked about the privacy implications of this. Dufresne acknowledged this and noted that the CRTC could make available personal information as it regulates user generated content. All of this depends on how the CRTC intends on regulating the content.

Housakos asked that Section 4.1 (2) and 4.2 would allow the CRTC to scope in user generated content. He asked if the Commissioner would consider it appropriate that personal information would be collected for the purpose of enforcing the legislation. Dufresne answers that he notes that money generation is a factor for the CRTC in collecting information on users and that it was important for the commissioner to know how that information could be used to identify an individual. If so, it would be important to de-identify those individuals.

Julie Miville-Dechene asked if the commissioner was in favour of the European approach to allow users to toggle profiling and recommendations. Dufresne responded by saying that such an approach does help the protection of privacy. There are a number of approaches that could be taken and that is certainly one approach.

Julie Miville-Dechene asked about how if the CRTC is going to publish results that users would have to to give up details such as locale and nationality among other things. The information collected would be used for statistical gathering. Dufresne responded, saying that this is something that the CRTC would have to consider. Dufresne notes that they would like to look at the CRTC’s plans and make recommendations so that there would be the least implications for privacy.

Paula Simons commented about how entertainment has become something of a loss leader and that programming is just a way of obtaining and mining that personal data. Simons asked about what safeguards there are in Bill C-11 to protect users from the extraordinary amount of data being collected. Dufresne commented that it all depends on how the legislation is implemented and how it is interpreted.

Simons asked if the commissioner has draft language of the legislation or if it was a suggestion. Dufresne responded that he was pointing to the Telecommunications Act.

Simons asked that if the European approach were to be implemented in the bill whether or not it would undercut discoverability in the bill. Dufresne responded that this is the assessment that the government should consider.

Senator Pamela Wallin picked up on the point about toggling recommendations off and that this is certainly something that the Senators are going to be looking at. Dufresne said that such a model would be simpler. Wallin commented how the monitoring and the censoring and the recommending was noted as being handed over to the platforms themselves.

Wallin essentially asked about how privacy would be protected from the platforms perspective. Dufresne said that Bill C-11 governs what the CRTC can request and what it can obtain. He said that the platforms would be governed by the conditions set by the CRTC. He said that they would all be governed by PIPEDA (Canada’s current privacy law).

Wallin asked about how some Canadian producers will not want to be captured by the bill because of the difficulty that would ensue, so who would be in charge of making such an assessment and who does the producer appeal to if they disagree. Dufresne responded that the processes is set by the CRTC. He commented that individuals will be able to see the proposed provisions and to make representations.

There were questions about if an individual objected that if there is somewhere else to appeal to. The answer was essentially that there is not and that the individual would have to make representations to the CRTC. Wallin more or less summarized that this is the situation where the police are policing the police and whether the commissioner has a concern with that. Dufresne responded that there is a process that can be followed.

Senator Victor Oh asked about Smart TV’s and set top boxes collecting personal information. Dufresne responded that the recommendations were that such information be de-identified and that proper techniques are used. Brent Homan added that discussions are happening with the industry, but no privacy impact was assessed.

Senator Bernadette Clement asked about how people may not be aware of the privacy options they have. Dufresne talked about the importance of awareness and that education is basically important about this. Clement asked if the ability to toggle recommendation is something that exists today. Dufresne responded that there are discussions going on.

Donna Dasko had an exchange that touches on similar points.

Kim Pate asked if he is aware of any companies that are motivated by profit that are objecting to the proposed approaches of protecting people’s personal information. Homan responded that there are obligations by commercial undertakings to respect people’s privacy. When pressed, Homan responded that such an assessment has not been made, but there is an effort for a more holistic approach for Canadians.

Dennis Dawson asked about advertising. Dufresne responded that his focus is on the algorithms.

Second Round of Questions With the Privacy Commissioner

The second round discusses Canada’s current privacy reform, COPPA, and other laws being considered. The conversation weirdly steered into online pornography at one point. The relevance of the conversation about pornography to Bill C-11 is a bit of a mystery to me.

Senator Jim Quinn circled back to appeals processes. He asked about whether or not a tribunal process could be implemented instead of simply relying exclusively on the CRTC which has a lot of power in all of this. Dufresne simply commented that he would avail themselves with concerns about privacy concerns and that they are proposing privacy amendments. The chair then concluded that portion to have a short break.

General Thoughts About the Privacy Commissioner Segment

Obviously, privacy implications hasn’t really been touched on with our coverage. We felt that the speech implications superseded these issues and reported accordingly. Still, it was an interesting angle on the debate to have witnessed. So, an overall interesting debate to have witnessed to say the least.

Opening With Global Affairs

Darren Smith opened up by noting that the Senate called them up to talk about how Bill C-11 intersects with international trade. Tariq Qureshi commented that they are there to talk about the Charter Statement with regards to Bill C-11.

First Round of Questions With Global Affairs

Senator Leo Housakos started off with asking about the USMCA. His question is about how the government touted that the legislation would bring in $1 billion from largely US firms, whether there is a concern about retaliatory tariffs. He also asked about whether the witnesses heard any concerns from the US about concerns with the legislation. He finally asked about whether or not this legislation would put other sectors in the Canadian economy at risk.

Darren Smith responded to say that Bill C-11 is consistent with Canada’s international trade obligations. He said that Canada has a dialogue with the US. He confirmed that the US has spoken to Canada about the legislation, but simply said that their concerns are about the processes within the legislation. Smith then said that he doesn’t want to prejudge any retaliatory outcome with regards to whether other sectors would be at risk due to retaliatory tariffs. He said that retaliation won’t come to fruition.

Leo Housakos then noted the contact the ministers had with US officials where concerns were expressed over Bill C-11.

Darren Smith responded, saying that it’s just a signal that the American’s are paying attention. He said that discussions were “amicable” and that the US totally doesn’t represent a risk to Canada in that regard.

Senator Paula Simons followed up those questions about the Canada media fund being larger with Bill C-11. She noted concerns about the USMCA and asked about whether or not there would be added friction. The video then freezes for a period of time.

Darren Smith answered that he is confident that Bill C-11 is consistent with international trade obligations.

Senator Pamela Wallin commented that there is a huge trade issue. She asked if an analysis was done on other trade agreements like CETA and other agreements.

Darren Smith answered that his understanding is that he can’t compare Canada’s system to other jurisdictions in terms of the cultural impacts. He then says that as a general response, there are issues about streaming and that his department takes a wider view on things rather than looking into specifics.

Pamela Wallin notes that the legislation attempts to regulate content online which is a global operation. She asked if there was any other responses from other countries.

Darren Smith responded that other than inquiries about the objectives of the bill, there was only questions about the processes and that is the extent of it.

Pamela Wallin asked about whether there are red flags about freedom of speech in regards to the legislation.

Tariq Qureshi responded that he couldn’t get into the details and legal advice that was provided. He then says that the bill engages with the Charter and that the statement outlines the considerations supporting Charter values.

Pamela Wallin then asked if there is someone that could give a briefing on red flag areas or if a private law firm would have to be asked.

Tariq Qureshi responded that department officials can’t provide legal advice. He said that the Department of Canadian Heritage can explain how the bill works and its implications. He said that he understands that there are lawyers that work for department officials.

Pamela Wallin commented that Tariq Qureshi also works for them as well. She says that Senators need this information.

The moderator else commented that ‘God forbid that the Department of Justice provides legal advice to parliamentarians’. He said that it is their job to provide information. So, definitely some frustration about the response that was given there.

Senator Julie Miville-Dechene then circled back to the USMCA. She commented that the Senate has heard all sorts of things about the USMCA. She noted that there are two regimes to follow with both foreign and domestic productions. So, she asked if there was any concerns about reprisals over having a single approach. Also, what about foreign production companies providing Canadian content? Also, she asked about whether foreign enterprises would hit back on this issue.

Darren Smith responded that Canada is not in a position to determine how the US would react. He said that he wasn’t aware of any concern raised by this particular element of the bill. He then just said that the legislation is consistent with international trade agreements.

Senator Julie Miville-Dechene commented that they aren’t really getting right down to it, but she’ll have to make do with that answer. She then spoke to Tariq Qureshi and raised a hypothetical YouTube user who generates content that is harmful such as misogynistic or harmful to another community, whether the CRTC would be able to take action.

Tariq Qureshi responded that the legislation does not regulate the users of the platforms.

Senator Julie Miville-Dechene asked about a user related to a commercial undertaking earning sufficient revenues and whether the CRTC could take action.

Tariq Qureshi responded that the legislation would apply if the CRTC decides to regulate a category of content. He says that the entity to be regulated would be the platform. He said that the bill does not allow the CRTC to impose conditions or quotas.

Senator Julie Miville-Dechene then referenced the CRTC decision on the CBC regarding content judged to be unacceptable. She asked if the same thing could be done to YouTuber’s.

Tariq Qureshi responded that he can appreciate the CRTC decision, but the matter is before the courts and nothing more can be said about it. He said, however, that with regards to platforms like YouTube, the CRTC does not have the power to regulate content on YouTube.

Senator Julie Miville-Dechene asked even if it is content deemed offensive.

Tariq Qureshi responded that the aims of the department is that the material posted by a user is not regulated. He said that there are exceptions where the CRTC would regulate content that is covered by regulations, the CRTC doesn’t have the power to regulate content based on standards and quality of the content.

Senator Julie Miville-Dechene clarified whether the CRTC can create regulations on a platform with regard to offensive material that have appeared on YouTube. The answer was “no”.

Karen Sorensen then asked about the appeals process at the CRTC. She also offered an opportunity to add anything about a previous question.

Tariq Qureshi responded that the appeals process of a CRTC decision depends on the CRTC decision. He said that the usual process is through the Federal Court of Appeal. He then said that the Charter Statement does provide insight, but is not a legal opinion about whether the bill is consistent with the Charter.

Senator Pamela Wallin then asked that with respect to the Court of Appeal, how does someone who produces user generated content access that. Also, whether there is any kind of subsidy to allow them to pursue an appeal.

Tariq Qureshi responded that this is the case for every regulatory regime. If someone want’s to appeal, the courts are generally the mechanism.

Senator Bernadette Clement hand an exchange about official languages in the bill.

Senator Kim Pate asked about whether or not First Nations and other minority groups should have been consulted on the bill.

Tariq Qureshi referred back to the Charter Statement and said that the legislation is in line with the Canadian Charter. Raymond MacCallum chimed in and said that the Department is not aware of that information and can’t advise on the United Nations declaration with respect to this law.

Senator Donna Dasko comments that the government says that the legislation creates a level playing field, but the legislation does not create a level playing field. She says that there are tiers within it. So, she asks if this creates a problem for the bill in terms of the fact that there is not a level playing field at the end of the process. She asks if the door is open to legal challenges for those who may feel that the legislation does not create a level playing field. She also asked how this will play out if it revolves around the implementation.

Tariq Qureshi responded that it does depend on how it all plays out when it is implemented by the CRTC. He says that the bill provides tools for the CRTC to implement the bill. He says that the CRTC will take the tools given by the bill and that is where the rubber will hit the road.

Senator Donna Dasko then circled back and asked whether some of the players could have legal challenges to the process.

Tariq Qureshi responded that the bill is subject to Charter requirements and the Constitution. He says that it is always open to challenges.

The chair then adjourns the meeting after thanking the witnesses for coming.

Conclusions on the Global Affairs Segment

Overall, you could really tell that, as time went on, there was a certain level of frustration with the Senators and the Chair. Here you have someone from Global Affairs just constantly repeating over and over again that the bill is compliant with international obligations. When pressed on those issues, the default answer always seemed to eventually go back to that the legislation is compliant. Even when the department was asked about specific provisions in the USMCA or other agreements, answers were really short.

With respect to the Department of Justice, you really can’t help but get that “dog ate my homework” vibe. Both officials just seemed completely lost in all of this. They basically re-iterated that the legislation is compliant with the Charter and constantly referred to the Charter statement, yet saying that the Statement is not legal advice and that they are not there to provide legal advice. It was especially telling how things boiled over when the Chair basically had to remind the Department of Justice what their job actually is in the first place.

Charter Statement aside, when they were asked about other aspects of the bill, they tried to answer questions by vaguely mirroring the Senator’s observations and trying to conjure up a string of words that they think passes off as an answer. It was especially telling when Senators asked the Department about the implementation process and the answer was basically, ‘yup, that’s when things start happening’. If this was just some random person off the street, it would be one thing, but this is Canada’s top lawyers responding after being tasked with providing answers. It was a total disaster and I struggle to think of any answer that was even remotely helpful to the hearing.

I think the only value the Senators got out of this is the fact that both the Department of Justice and Global Affairs really don’t have a clue what is going on. They got their marching orders and talking points and were completely unable to really come up with answers for the Senators. They couldn’t tell you how the legislation is in line with international trade obligations. They couldn’t tell you why the legislation is compliant with the Canadian Charter. Only that it does both, smile, and hope that the Senators just stupidly nod in agreement. Like, what the heck was that?

If I was a Senator, at minimum, I would be looking for any kind of assurance and explanation that would elaborate on both departments positions on Bill C-11. Clearly, that was not obtained here, so clearly, that assurance has to come from somewhere else. Until there is that assurance that the legislation is Charter Compliant (spoiler alert: it’s not) and fulfills all international trade obligations (obviously it doesn’t), there is no reason to advance that bill until there is solid evidence that it does both.

In my personal opinion, the bill should be scrapped altogether. The lack of answers on the second portion really should hammer that point home. Probably the only thing helpful in this whole affair was the Privacy Commissioner because it opened up a lot of interesting dialogue in an area that is, understandably, a bit overlooked in all of this. The idea of toggling recommendations is certainly an interesting one and one that was wisely proposed from a privacy perspective.

So, an interesting committee meeting for a wide variety of reasons. We’ll try and cover other meetings as we get the chance to view them.

Drew Wilson on Twitter: @icecube85 and Facebook.

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