There’s no getting around the fact that Bill C-11 is a censorship bill. However, it isn’t in a way that most people associate with censorship.
With Bill C-11 all but certainly going to get delayed through the Summer, many are breathing a sigh of relief that there will be a brief amount of time where there is no worry that their freedom of expression isn’t going to get taken away by the government in the short term. Updates are starting to slow down, so we can finally take a moment to catch our breath and start opening up on things finally.
One area of contention about Bill C-11 is whether or not the legislation is a censorship bill. We believe that it is, but there is more nuance to this thinking than what can be compressed into, say, a tweet.
When most people think of government censorship, what comes to mind? Those classic black bars on a document? More generally, the government removing speech in part or in its entirety. Because of this thinking, this may be the culprit as to why there is some confusion about calling this bill a censorship bill.
What Bill C-11 Does Not Do
To be clear, Bill C-11 does not actively remove speech. There is no provision that I am aware of that explicitly states that certain speech must be removed in Bill C-11. What’s more, the legislation does not stop someone from uploading content. Again, that is not what is in the bill.
Another thing that is not in the bill, as far as I am aware of, is provisions to remove speech based on topic. There is no provision in Bill C-11 stating that social media platforms are barred from allowing the uploading of, say, a religion based video for instance.
Both of these ideas are what we’ve seen largely floating around on Conservative party supporting social media circles. This is definitely an area that we are aware of where some critics of the legislation gets things wrong.
Why the Bill Is, In Fact, a Censorship Bill
While the aforementioned Conservative supporters did get this wrong, interestingly enough, the conclusion that this is a censorship bill is actually correct. In short, these supporters arrived at the correct conclusion for the wrong reasons.
While a traditional form of government censorship is the removal of speech by the government, this isn’t the only way censorship can occur. This is something that is recognized by Canadian courts.
Another form of censorship is suppression of speech. Let’s use an example of a poster. This poster has a personal opinion of yours. It can be political or pretty much anything. So, you want to post this poster in a public space. This space is not a privately owned space. However, the government does not like this speech. The government knows it cannot actively remove said speech, however, it has another method in mind. The government orders anyone posting those posters to be posted in a different space away from most people’s vision. It might be a not very well travelled road or an out of the way alleyway, for instance. The government is saying that they do respect freedom of speech, however, they don’t want the public to see said speech. That technically is a violation of freedom of expression because it is actively suppressing said speech.
There are, of course, different rules when it comes to speech on private property and certain other complexities involved that has less to do with free speech and more revolving around other laws, but from a strictly freedom of expression standpoint, this generally how freedom of expression cannot be actively suppressed by the government.
Now, this sort of thinking does, arguably, apply to Bill C-11. As we previously mentioned, the famed section of legislation that does regulate user generated content is, in fact, Section 4.1(2) and Section 2:
Non-application — programs on social media service
4.1 (1) This Act does not apply in respect of a program that is uploaded to an online undertaking that provides a social media service by a user of the service for transmission over the Internet and reception by other users of the service.
Application — certain programs
(2) Despite subsection (1), this Act applies in respect of a program that is uploaded as described in that subsection if the program
(a) is uploaded to the social media service by the provider of the service or the provider’s affiliate, or by the agent or mandatary of either of them; or
(b) is prescribed by regulations made under section 4.2.
Non-application — social media service
(3) This Act does not apply in respect of online undertakings whose broadcasting consists only of programs in respect of which this Act does not apply under this section.
For greater certainty
(4) For greater certainty, this section does not exclude the application of this Act in respect of a program that, except for the fact that it is not uploaded as described in subsection (1), is the same as a program in respect of which this Act does not apply under this section.
Regulations — programs to which this Act applies
4.2 (1) For the purposes of paragraph 4.1(2)(b), the Commission may make regulations prescribing programs in respect of which this Act applies, in a manner that is consistent with freedom of expression.
“The Commission”, as referenced in this excerpt, is the CRTC. It is the CRTC that gets to decide what is considered “Canadian enough” or not. There is no set policy for them to determine what is Canadian or not as it relates to Bill C-11. In fact, the messaging from the government is that this critical aspect of the law will only be defined after Bill C-11 passes. Otherwise, this is a secret to the public (unsurprisingly, not good enough for critics). However, there is currently rules set in regards to audiovisual works that currently exists today. This was highlighted by us back in March and that set of rules shows this:
What is the points system?
Very often, a book has only one author. Audio-visual productions, on the other hand, require a team of creative personnel to bring them to our screens to inform, enlighten or entertain us. Points are awarded for productions based on the key creative functions being performed by Canadians.
Key creative positions for live action productions*:
Director (2 pts.)
Screenwriter (2 pts.)
First and Second Lead Performers (performer or voice) (1 pt. each)
Production Designer (1 pt.)
Director of Photography (1 pt.)
Music Composer (1 pt.)
Picture Editor (1 pt.)
*note that other rules apply to animation productions
As we mentioned in the article while highlighting this, we concluded that the Freezenet vidcast and podcast don’t qualify under these rules simply because there isn’t enough personnel to satisfy enough of these requirements. This was after bending and warping as many rules as possible to give us the best chances of qualifying as being “Canadian enough”.
So, we can establish that Bill C-11 compels platforms to prioritize certain kinds of content over others. While there is no explicit order to implement a certain algorithm, the legislation does, in fact, require specific outcomes that those algorithms spit out.
Here’s the crux of the problem that makes this law unconstitutional: the rules for qualifying as Canadian currently risks (very easily, I might add) that Canadians creating content will get filtered out of this process. This is because the barrier for entry to qualify as “Canadian” is actually quite high – especially for an entry level digital first creator. Because of this, this opens the door that the Canadian government will compel a platform to de-prioritize said content.
Much like the poster example, that particular Canadian who has their content suppressed for not being “Canadian enough”, will find their speech ghettoized. Indeed, they can upload video content until their hearts content, however, it risks not seeing the light of day from the recommendation system simply because there are so few spaces to go around – even fewer when designated “Canadian content” (or “cancon”) has to be prioritized over that Canadian’s speech. As such, that Canadian’s speech is actively being suppressed by the Canadian government and, as a result, is having their constitutional rights to freedom of expression violated.
There is a little bit of the muddying of the waters here, of course. That revolves around the Canadian government compelling a private company to perform these actions. Apologists might try to make the case that it is the platform that is making these decisions at the end of the way as to what content gets promoted or not. However, this is a very weak defence here.
Going back to the poster example, it would be like the Canadian government hiring private security to make sure that any poster not in a designated location should be removed. The Canadian government would, in this scenario, tell that private security company that they can make up their own rules, policies, and procedures, but at the end of the day, as long as that poster is not found in that public space is the only outcome that this company could have. At the end of the day, it is the government that is compelling these actions rather than a private company. There are significant fines for platforms that do not sufficiently comply with these laws. It’s unconvincing that these platforms, in this case, are acting out of their own free will to choose whether or not they are promoting that YouTuber’s content.
How Bill C-11’s Implementation Could Dodge a Constitutional Challenge (Unlikely)
There is only one way we can see Bill C-11 evading the constitutional question of freedom of expression altogether. This revolves around the currently secret implementation process. It would be to instruct the CRTC to allow for the promotion of any content made by any Canadian citizen, duel national, or anyone else that is protected under the Canadian charter. If you can show that you are Canadian, then your content is automatically prioritized.
This instruction will resolve this issue of whether or not it violates the Canadian Charter. This is because no Canadians freedom of expression is actively being suppressed when they upload content onto these platforms in the first place.
Now, as you no doubt noted, I said in the title that this is unlikely that this will happen. Why is that? Everything about this debate says that this is exactly what the Canadian government is not even coming close to implementing. It’s as simple as asking why is the implementation process so secret?
In this case, the government doesn’t necessarily have to table their whole implementation plan. A statement somewhere along the lines of, “If you are a Canadian, then you will have your content promoted by the CRTC. That is what is going to be in the guidelines we give to the CRTC with which to carry out enforcing Bill C-11 once it becomes law.”
As you can imagine, it won’t solve all of the Canadian governments problems. However, what it will do is, for the first time in this whole debate, suck some of the oxygen out of the raging wildfires of criticism rightfully directed at the government in the first place.
Of course, this is not the approach the Canadian government has taken. Instead, it is repeating the same obvious lie that user generated content will be excluded from the bill, then doubling down by saying that anyone who says otherwise is just ‘spreading misinformation‘.
Further, so much about this debate is actually about the money. Legacy media corporations have been pushing for years for this legislation. Why? They are seeing people simply turning to the Internet as a creative outlet. Not a problem for them in and of itself. The problem for them is that these individuals are also gaining large audiences as a result. Because of these audiences, these creators are not only gaining revenue from ad revenue, but also through deals struck with sponsors and merchandising as well. Rather than find ways of competing, these legacy corporations think that those audiences shouldn’t be going to those creators. Instead, they feel entitled to those audiences because they have enjoyed that captive audience for decades and the Internet shouldn’t be changing that.
Those same legacy corporations regularly whine that they aren’t getting the same kind of ad revenue as “Big Tech” and how it is so unfair that those revenues are going to “Big Tech” in the first place. Why push the government to create these rules when every Canadian can benefit? What they are really calling for is protectionism to protect their business interests – not the interests of Canadians in general. So, they are more than likely pushing for rules that specifically benefit them and as few others as possible. Why bring up decreasing ad revenue otherwise?
Finally, the rules posted by the CRTC have not changed for decades now. The CRTC could really change these rules any time they want. The problem is, they just chose not to. Why? Canadian digital first creators is simply not something they are interested in focusing on. Had this legislation been about protecting everyone, why not add new rules for digital only content to explain what is certified Canadian or not? It would have eased some of the tensions surrounding this bill. Yet, up to this point, those steps were not taken. If the forthcoming rules are going to be so inclusive, why not add in some new rules to show good will? Because it’s not the intention.
All of these examples show why none of the signs point to making this legislation as compliant to the Canadian Charter as possible. Instead, these signs points to a highly protectionist agenda meant to serve large legacy media corporations. If this was about simply giving a permanent advantage to legacy media corporations, then it makes sense that the lobbying often involves “lost revenue” to “Big Tech”. It also makes sense if you think about why the government is so intent on keeping the implementation directives so secret. Further, it makes sense that the government is relying so heavily on the lie that user generated content is not going to be regulated. If the intention is to simply prop up legacy media corporations, every single move and situation currently in the debate makes perfect sense.
It is with these reasons that we can safely conclude that the government is not about to allow any Canadian to benefit from any of the promotional advantages that is going to be granted by the Canadian government.
As a result of this, this legislation is basically set up to be unconstitutional in our view.
Some critics might be hesitant in calling this legislation constitutionally questionable. However, if you read the bill and consider all that has happened, it’s hard to find a conclusion other than that this bill is about censorship and is constitutionally questionable. From the text of the bill to the behaviour of the Canadian government, this bill is censorship legislation because it will inevitably suppress Canadian’s speech.
The bill may not prevent uploading of material or suppress speech based on the perspective or opinion of the creator, but what it does do is perform equal opportunity suppression of expression. This is about propping up a legacy industry who looks at the success of the Internet and the native creators on it with envy. By virtue of being basically a competitor to these legacy corporations, then the goal is the suppression of your content. As a result, it is hard to think of this legislation as anything other than a censorship bill that is unconstitutional. As such, if (God forbid) this passes, then it really should go down in flames once it hits the Canadian court system.