It was such a great idea, the Internet. A borderless, bodiless refuge for freedom of expression, beyond the reach of censorship; a place of infinite capacity and zero cost, where anyone who wanted to express themselves could, in any medium, at any scale; where a book, song or movie could be distributed with equal ease, to one person or billions; where the artists had the world as their audience, and the audience could choose from all the creators in the world. Who wouldn’t want such a thing?
Governments, who are they? The Trudeau government, in particular, seems to see the Internet not as an opportunity, a chance to bring down the huge army of regulators that has hitherto overseen the Canadian media, but as a challenge. Far from getting carried away, he is determined to do more; and the more the flaws of this approach have become apparent, the more his determination seems to have grown.
Three bills were introduced, announced or promised during the last Parliament, all with the aim of regulate the internet. We would have subjected the Internet to more or less the same rules, particularly with regard to Canadian content, that currently govern conventional television and radio. A second would have forced search and social media platforms to pay news outlets for the links they and their users post to them. A third would have given the state new powers to remove online content deemed harmful, beyond that already at its disposal. All three have been the subject of some controversy.
It therefore seemed possible to hope that with the intercession of the last election, the government would have seized the opportunity to rethink them. Alas, this did not turn out to be the case. All three are back, and while the government claims to have made tweaks here and there, they are unchanged in all essential respects. Each on their own would represent a jaw-dropping regulatory grab, an unprecedented expansion of the state’s role as arbiter of what Canadians might see or say online. Taken together, they represent vast overbreadth, with great potential harm to freedom of expression and a healthy media environment.
The attempt to apply the Cancon rules to audio and visual content on the Internet is contained in Bill C-11, the successor to Bill C-10 from the last Parliament. Much of the controversy surrounding this bill has centered on the relatively narrow question of whether it would apply to user-generated content, that is, audio and video clips that users share on social media sites. Critics had good reason to fear this, after a clause exempting such content was removed in committee. And while the government claims to have reinstated the exception in the current bill, the bill contains, as communications law professor Michael Geist notes, an exception to the exception: user-generated content. is not subject to regulation, unless the CRTC so decides.
It is the Canadian Radio-television and Telecommunications Commission, now in its 54th year of regulating everything that circulates on Canadian “radio-television”, to which the bill would grant wide latitude to regulate, well, the Internet: not only the major audio and visual broadcasting services like Spotify or Netflix, but a number of other services, from podcasts to audiobooks to news channels, and not just those based in Canada, but all over the world. This is surely the biggest concern. That the users of these services are subject to regulation in their capacity as viewers of content – and insofar as the services are forced to give greater prominence to certain content, its users can hardly be spared – they are certainly submitted as consumers.
The bill would preserve everything that is the most absurd thing about Cancon – notably, the impossibility of defining it with any consistency – without anything that could have justified it in the past. In the pre-internet, pre-satellite, pre-cable world, where there were only a few radio or television stations, all broadcasting live and financing their activities through the sale of advertising, there was a role of regulation. Advertisers wanted the widest possible audience, and the widest audience might not be interested in certain types of content, including Canadian content.
But where users can pay directly for content, this no longer applies: all types of tastes can be provided, as is the case in most other markets. And when a show’s potential audience is no longer confined by national borders, arguments that foreign producers have an insurmountable advantage in the Canadian market due to economies of scale also fall apart. : The world is our market, as much as it is theirs.
If Canadians want to watch Canadian content, in short, nothing prevents them from doing so, and no special measures are necessary to compel/encourage them to do so. The idea, in particular, that Canadians need government help to “discover” Canadian content online is frankly bizarre. Is it difficult to type “Canada” in the search bar?
If C-11 is superfluous, impractical, and likely illegal under international trade law, Bill C-18, the Online News Act, is just a banana. The premise that the newspaper industry’s troubles can be traced to search and social media platforms like Google or Facebook “stealing” their content is totally false. The platforms do not take our content. They refer to it: a title, sometimes a short extract of text, nothing more. When users click on the links, they are redirected to our sites, where they read our content. In fact, a lot of the traffic to our sites comes from social media links, which is why we go to great lengths to encourage readers to post them – indeed, we post such links ourselves, hundreds of times. per day.
So the idea that FaceGoogle should be forced to pay us for the valuable service they provide us for free has things exactly upside down: if anything, we should pay them. The bill merely purports to provide for negotiations on the issue, but who cares whom: not only does it allow the entire industry to bargain collectively, as if it were a union, but, in case the two parties could not agree, provides for the imposition of a settlement. By who? By the CRTC! As if it wasn’t busy enough regulating the global Internet, the CRTC would also be tasked with looking after the information sector. Should we imagine that he would be an impartial arbiter?
This elaborate sham is meant to apply a veneer of due process to what is in effect no more than a simple revenue grab. The real rationale for forcing Facebook and Google to insure the Canadian newspaper industry is very simple. It’s the same one to force Netflix to guarantee the Canadian film industry, as in Bill C-11: because that’s where the money is.
FaceGoogle took nothing from the newspaper industry. They simply gave advertisers a better product. Rather than adapt and improve, however, the industry cried out to the government, first for direct subsidies (a horrible idea, about which I have written on other occasions), now for indirect subsidies, to be extracted from their competitors. The implications in both cases – for the independence of the press, for fair competition, for the future of an industry whose will to save itself can only be compromised by the availability of government aid – are the same.
The Online Harms Bill, still in the works, stems from at least one valid underlying concern. The harms that social media has enabled or aggravated, from misinformation to invasion of privacy, child pornography and beyond, are real and well documented. But it is far from clear that new legislation is needed to address this. Legitimate exceptions to freedom of expression – fraud, defamation, incitement to violence, etc. – are already covered by current legislation.
There is no doubt that social media raises new problems and may require new remedies. But in this case, the remedy – direct state regulation of content – promises to be worse than the disease.
In fact, as originally drafted, the bill would have gone even further. Not only would it again make online speech the subject of complaints to the Canadian Human Rights Commission – a provision rightly abolished a decade ago – and not only would it provide for the removal of the offensive material from the Internet, but it would have allowed the material to be removed before it even appeared.
As an accompanying backgrounder explains, anyone who “reasonably fears they may be the target” of “hate propaganda” could ask a judge for a “peace bond” to prevent its publication. Yes, the attorney general of the province in question should endorse the request, and yes, the judge should agree, but still: gag? For material that hasn’t been shown to be hateful, maybe it doesn’t even exist?
Perhaps this particular provision will not survive the current round of consultations. But as with other bills, it is not the most extreme provisions of the bill that call it bad law. The set is extreme.
Add them all together, and the picture that emerges is bleak, for freedom of expression and independent media. Far from the free and open internet we were promised, government would be online everywhere, involved in everything, ruling everyone – subsidies and regulations; applied to platforms, providers and users; with respect to video, audio and text; accompanied by both criminal and civil penalties.
Worse, the whole illiberal enterprise, controversial as it may have been the first time around, went almost unnoticed upon his return. There is a war. The Liberals and the NDP signed an agreement. The Conservatives have embarked on a leadership race. Is anyone going to seriously oppose this – will the Tories pledge to repeal the lot if elected – or will this all slide while we’re distracted by other things?
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