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Despite the almost spiritual significance Internet cat videos apparently have for Canadians, fears that legislation known as Bill C-10 might snuff out Fluffy’s chance for viral stardom seem seriously misdirected.
As Heritage Minister Steven Guilbeault has insisted, Ottawa has no immediate intention of suppressing Facebook postings of your favourite feline dancing backward on two legs while yowling the theme song from Cats. Guilbeault was forced this week into the embarrassing logical impossibility of proving that negative because the House of Commons Heritage Committee removed a particular clause from C-10 last month.
The clause in question specified that nothing in the Bill would impose State control on the user-generated content of individual Canadians. The Minister insisted removal of the clause changed nothing in that regard, sparking a flash furore of demands as to why, if nothing had changed, C-10 was changed. The result, in classic Canadian fashion, was to shuffle the whole thing off for Charter of Rights review.
So, user-generated cat videos remain safe – at least for now. But numerous sharp-eyed experts say what is lost in the yowling is this: if C-10 passes as written, ultimately what is or isn’t posted or said on the Internet will only take place with permission of the State.
As such, those experts say, the whole Bill, not just the cat videos part, constitutes a forbidding assault on freedom of expression. It does so by handing Ottawa bureaucrats control of the medium whose very nature ensures our ability to keep free expression unfettered.
Convivium warned back in February 2020 about the kind of thinking that ultimately produced C-10. The thinking was made manifest in the report of the Broadcasting and Telecommunications Legislative Review Panel. It expressed the need to bring the Internet directly, legislatively, under State control. As we have reported several times over the past year, it matters little whether or not such control is initially exercised with best intentions.
Indeed, focusing the debate on government intentions is itself a misdirection. Its outcome will be regulation of communication where no such bureaucratic micromanagement has ever been imagined, conceived or desired by the vast democratic majority of Canadians who use it.
In other words, its critic say, it is about practical power politics involving the restriction of Canadian freedom. C-10 transfers your control over Internet communication to a group of federal government bureaucrats. Its own summary preamble could not make that clearer. The legislation will “add online undertakings — undertakings for the transmission or retransmission of programs over the Internet — as a distinct class of broadcasting undertakings….”
The Internet that you freely log onto now for everything from, well, sacred cat videos to checking how badly the Toronto Maple Leafs lost last night to serious intellectual research, will become controlled and regulated broadcasting. You might not lose your cat videos, but your podcast could be considered a broadcast. A State agency will ultimately be able to make decisions for you about what you can and cannot say. You will no longer be the CEO of your SEO. Federal bureaucrats will have the power, should they choose to exercise it, over your content.
In Canada, the Internet will be governed by the federal Broadcasting Act. The whole purpose of Bill C-10 is to amend that Act (and several others) in order to place the Internet within the control of the Canadian Radio-television and Telecommunications Commission (CRTC). The change is no mere shuffling of bureaucratic chairs. It’s bringing bureaucrats to the table where their priorities and values codified in State-enforced regulation will inevitably displace what were once your free choices.
The threat is no philosophical abstraction. It is historic and it is deeply invasive. As former CRTC vice-chair Peter Menzies told Convivium.ca 10 months before C-10 was even introduced in the Commons: “What’s being proposed is as if the government suddenly began regulating what you can say on your phone, how often, and to whom.”
Len St-Aubin, a former director-general of telecommunications policy at Industry Canada and one of the developers of the 1991 Broadcasting Act, has an equally ominous comparison.
“(B)roadcasting regulation made sense in the context of a limited number of radio and TV channels broadcasting one-way to Canadians. Imposing it on the Internet makes as much sense as imposing it on newspapers, magazines, book publishing, cinemas, theatres and bookstores. Canadians would not tolerate that, and we should not tolerate Bill C-10,” St-Aubin wrote recently on the website CARTT.ca.
His reference to “broadcasting regulation” reflects the CRTC’s historic role as a fair-play referee for the finite number of airwaves – the AM and FM radio and TV spectrum – available to Canadian stations when the federal bureaucracy was born in 1976. The role was expanded to include policing of bitterly contested Canadian content regulations. They were justified, in that era of nationalist fervor, by the perceived necessity to counter the tsunami of American media offerings crossing the undefended border.
The project was ultimately one of protecting public access to the limited amount of public electromagnetic property – the very opposite of the infinitely expandable Internet. Think of the old meme joke about the guy who got to the end of the Internet and finally discovered someone was wrong. People are free to be wrong on the Internet every second of every day precisely because there is no end to the Internet. Others always have the right to Internet reply.
In the old days of finite bandwidth and rented public airwave communication, that wasn’t the case. The State played a legitimate marshalling role in applying shared principles of common access. But to read Bill C-10 today is to be plunged into the cold, sobering eyebath of just how radically the CRTC has transmogrified from that original function.
It now has the power to impose fines of up to $15 million on Broadcasting Act violators. It enjoys a frightening entitlement to lay a new complaint every day that wrongdoers fail to pay their penalties. All this from its dominion across the Ottawa River from Parliament Hill, in a hermetically sealed world whose arcane vocabulary and coded hand signal “public” hearings seem lifted from the Masonic Lodge book of murmurs and muttering.
If C-10’s imminent threat has nothing to do with immediately menacing the nation’s cat videos, then, it has everything to do with using a curling iron to straighten a dog’s crooked tail. It is the painfully wrong tool for the wrong job in an undertaking that is entirely unjustified and unnecessary in the first place.
On the logistical level alone, as Peter Menzies put it in a March 16 Convivium.ca article: “(Heritage Minister) Guilbeault, an environmental activist thrust into a role for which his resume doesn’t particularly recommend him, is triggering a process that anyone remotely familiar with the workings of the CRTC knows will take the better part of the decade to resolve and for no particular net gain other than control. I’ve stopped laughing.”
For Len St-Aubin, placing the Internet under the already swollen jurisdiction of the federal radio, television and telecommunications regulator is an inexplicable travesty of law-making.
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“Empowering the CRTC to require social media to monitor, control, and remove user-uploaded content is a direct attack on freedom of expression. In all other media Canadians are free to speak without oversight or censorship, subject only to whatever consequences may follow if their speech breaks generally applicable laws. The government has provided zero rationale as to why this sane approach to governing speech in a free and democratic society should not also apply online,” St-Aubin writes.
A chorus of voices – Menzies, St-Aubin and Ottawa legal scholar Michael Geist among them – also makes the point in objecting to C-10 that rationales offered so far for C-10 are, to put it gently, zany. Canada has 50 years of experience governing hate speech. It has solid Supreme Court decisions that set clear-as-possible limits around what is, and is not, hateful expression in whatever form it is published.
The same is true, they point out, of the Heritage Minister’s mantra that the intention is to make Internet giants such as YouTube, Netflix, Facebook et all pay their “fair share” in taxes and creative industry strong-arming. Canada already has a Competition Act which, as the name implies, can be used to prevent monopolies from inhibiting marketplace competition. That Act is as accessible to the country’s creative class as it is to the nation’s widget startups.
So why the need for compound legislation with Bill C-10? Why not let the police and the courts police and judge hate speech, and give the anti-trust experts appropriate tools to combat monopoly and ensure competition? At least a partial answer to that came in Convivium’s report last year when Timothy Denton, a specialist in technology law and a CRTC commissioner from 2008 to 20013, warned about the impulse of corporate monoliths to sacrifice principled freedom by kow-towing to regulation if it protects the bottom line.
“When the bottom line is dollars, it’s very rare companies will say to a government, ‘thank you very much, please get lost.’ There is immense cowardice within business in relation to government regulation. The only way these things are ever stopped is by people waking up to what is being proposed – and opposing it. This thing is happening now in real time and it has to be fought. I will only feel safe when it is dead and buried,” Denton said.
Far from being dead and buried in the past year, the monster Denton saw being unleashed gained a life of its own and spawned Bill C-10. In a blog post Thursday, University of Ottawa law professor Michael Geist said the good news is that Canadians appear to have finally woken up to what is being proposed, even if they’re not entirely clear about what the real threat is.
“The backlash undoubtedly caught the government by surprise, particularly since the policy change garnered little discussion at committee,” Geist wrote on Unpublished Ottawa. “As the public concern mounted, Guilbeault retreated to his standard talking points about how the opposition parties were unwilling to stand up to the web giants. The arguments fell flat, however, since the new rules were directly targeting users’ content, not the Internet companies. Further, the public reaction pointed to a government increasingly out-of-step with the public, which may support increased Internet regulation, but not at any cost.”
Geist, who holds the U of O’s Canada Research Chair in Internet and E-commerce Law, warned we are a long way from safety yet. So did Peter Menzies, the former CRTC vice-chair, and former CRTC Chairman Konrad von Finckenstein, who argued in the Globe and Mail this week that C-10 is too deeply flawed to fixed by fiddling, and ultimately must be withdrawn in its current form.
Whatever that final configuration might be, Michael Geist warns even worse may be yet to come. Minister Guilbeault has promised to move against ill-defined “online harms” and to force social media companies to pay for news a la the Australian model. Geist does see some hope that the kerfuffle that has erupted around C-10 will provide a sharp reminder to the Heritage Minister and the federal government that there’s a cost to interfering with Canadians’ Internet freedom.
“When looking at the shift in the government’s approach, I recently lamented that it has become the most anti-Internet government in Canadian history. That may have once been a badge of honour for Guilbeault, but after the Bill C-10 backlash and the public re-assertion of the importance of free speech online, there may be a significant political cost to being at odds with the views of millions of Canadian Internet users,” he writes.
Cue the video of Fluffy yowling Memories walking backwards.
Convivium publishes texts that do not necessarily reflect the views held by Cardus, the Convivium team, or its editors. In the spirit of discussion, dialogue, and debate, we ask readers to bear in mind that publication does not equal endorsement. Thanks for reading. Join the conversation!