April 29, 2021
After more than 25 years of Canadian governments pursuing a hands-off approach to the online world, the government of Justin Trudeau is now pushing Bill C-10, a law that would see Canadians subjected to the most regulated internet in the free world.
Although pitched as a way to expand Canadian content provisions to the online sphere, the powers of Bill C-10 have expanded considerably in committee, including a provision introduced last week that could conceivably allow the federal government to order the deletion of any Facebook, YouTube, Instagram or Twitter upload made by a Canadian. In comments this week, NDP leader Jagmeet Singh indicated his party was open to providing the votes needed to pass C-10, seeing the bill as a means to combat online hate.
The current state of the Canadian internet is far from a wild west: even an anonymous post can get you sued or imprisoned if it’s defamatory, infringes on copyright, violates Canadian hate speech laws or transmits illegal content such as child pornography. But Bill C-10 proposes to subject whole realms of the Canadian online world to content oversight from broadcast regulators, including podcasts, online videos and even the website on which you are currently reading this story.
Former CRTC commissioner Peter Menzies said in an interview that Bill C-10 “doesn’t just infringe on free expression, it constitutes a full-blown assault upon it and, through it, the foundations of democracy.”
Below, a look at what is fast becoming one of the most comprehensive peacetime attempts to redefine free expression in Canada.
Ottawa would be empowered to police social media
The draft text of Bill C-10 specifically included a clause exempting social media. While the government was looking to regulate the internet, it didn’t want to bother with anything “uploaded to an online undertaking that provides a social media service by a user of the service.”
Indeed, Heritage Minister Steven Guilbeault has repeatedly framed C-10 as a way to regulate streaming services such as Netflix and Crave while leaving social media alone. He told the House of Commons just last month that “we’re not particularly interested in … when my great-uncle posts pictures of his cats.” But in a House of Commons Heritage committee meeting Friday the social media clause was deleted. When confronted on the change, Guilbeault said that it was always their plan to regulate “online platforms that act as broadcasters.”
What the deletion means is that every single Canadian who posts to Instagram, Facebook, TikTok, Twitter or YouTube could be treated like a broadcaster subject to CRTC oversight and sanction. The users themselves may not necessarily be subject to direct CRTC regulation, but social media providers would have to answer to every post on their platforms as if it were a TV show or radio program.
This might be a good time to mention that members of the current Liberal cabinet have openly flirted with empowering the federal government to control social media. In a September Tweet, Infrastructure Minister Catherine McKenna said that if social media companies “can’t regulate yourselves, governments will.” Guilbeault, the prime champion of Bill C-10, has spoken openly of a federal regulator that could order takedowns of any social media post that it deems to be hateful or propagandistic.
I think there’s a lot that we can do, but the social media companies themselves need to step up. We don’t have to regulate everything but if you can’t regulate yourselves, governments will. @s_guilbeault https://t.co/O7PvYsWPH1
— Catherine McKenna 🇨🇦 (@cathmckenna) September 22, 2020
Indeed, C-10 has been cheered by proponents specifically for its powers to silence online voices. “Now’s the time to finally finish (Ontario Proud founder) Jeff Ballingall, Ontario Proud, Canada Proud the rest of their ilk,” reads a recent pro-C-10 tweet from the anti-conservative Twitter account The Diefenbaker Project.
News, video games and even apps could be subject to new levels of government control
When he introduced Bill C-10 in November, Guilbeault assured the House of Commons that “user-generated content, news content and video games would not be subject to the new regulations. Guilbeault’s 180-degree turn on social media is covered above, but even a cursory read of the legislation reveals that news and video games are absolutely within C-10’s scope.
Bill C-10 essentially pledges to regulate online content as a “program.” And according to the original Broadcasting Act, a “program” is “sounds or visual images, or a combination of sounds and visual images, that are intended to inform, enlighten or entertain.” You’re off the hook if your content consists “predominantly of alphanumeric text,” but if your website has sounds and visual images you will henceforth be a “program” according to Bill C-10.
Basically, if your Canadian website isn’t a text-only GeoCities blog from 1996, Bill C-10 thinks it’s a program deserving of CRTC regulation. This covers news sites, podcasts, blogs, the websites of political parties or activist groups and even foreign websites that might be seen in Canada. In a Monday meeting of the Canadian Heritage committee, smartphone apps were also thrown under the Bill C-10 rubric, although the complete text has not been released to the public.
It’s not censorship, per se, but it’s close
Passage of Bill C-10 would not subject Canadian content creators to a top-down China-style censorship regime. After all, few would argue that a censorship regime applies to Canadian cable news or radio, both of which are subject to CRTC regulation. Guilbeault has asserted that Bill C-10 is only intended to regulate the actions of “web giants,” and that may indeed be his intention.
But the ultimate effect of C-10 would be to plunge whole realms of independent media — from YouTubers to podcasters to bloggers — into an environment where they could face both a requirement for government registration as well as any number of CRTC content strictures drawn up without the need for additional legislation or oversight. As the bill’s official FAQ states, only after it becomes law will the CRTC decide “how it should implement the new powers afforded by the Bill.”
One of the most notable strictures faced by CRTC-regulated broadcasters is the requirement for a minimum of Canadian content on TV or radio. That’s why Patio Lanterns gets a disproportionate number of spins on FM radio and even Quebec porn channels are legally required to air at least 8.5 hours of Canadian erotica per day. Canadian broadcasters are also forbidden from airing “obscene, indecent or profane language.”
With the passage of Bill C-10, it would fall to regulators to decide which realms of the online world are subject to these Canadian content strictures, and even what those strictures might be.
For instance, a group called the Alliance for Equity in the Music Industry is currently petitioning the federal government to include provisions in Bill C-10 that would mandate Canadian creators to submit race-based data and be subject to review by a chief equity officer. While the group is seeking to have the provisions added directly to the text of the bill, it could just as easily be accomplished by a directive from the Minister of Canadian Heritage. The original 1970 introduction of Canadian Content regulations, for one, did not need new legislation, but was imposed by then-CRTC director Pierre Juneau.
The unintended consequences could be massive
Michael Geist, a University of Ottawa professor and the Canada Research Chair in Internet and E-Commerce Law, has been among one of the most persistent critics of Bill C-10, calling it “dangerous,” and “inexcusable.”
In a February blog post, Geist noted that aside from C-10’s infringements on free expression, it could spark blowback well beyond what is expected by its drafters. As an example, Geist cites the experience of Facebook in Australia. Earlier this year, Australia passed legislation requiring the social media giant to compensate news companies whenever a link was shared on its platform. In response, Facebook simply banned the sharing of news content by Australian users, restoring it only after Australian legislation was amended.
The penalties prescribed by Bill C-10 are substantial. For corporations, a first offence can yield penalties of up to $10 million, while subsequent offences could be up to $15 million apiece. If TikTok, Twitter, Facebook and YouTube are suddenly put in a situation where their millions of users must follow the same rules as a Canadian cable channel or radio station, it’s not unreasonable to assume they may just follow Facebook’s example and take the nuclear option. As Google, the owner of YouTube, told Postmedia in a statement, “we remain concerned about the unintended consequences, particularly with regards to the potential effects on Canadians’ expressive rights.”