Feds asking Canadians to take ‘leap of faith’ that Bill C-10 won’t hurt free speech: experts

Click to play video: 'O’Toole says new amendments to Bill C-10 ‘do not protect the freedom of expression’'
O’Toole says new amendments to Bill C-10 ‘do not protect the freedom of expression’
WATCH: O’Toole says new amendments to Bill C-10 ‘do not protect the freedom of expression’ – May 7, 2021

The government’s new wording for Bill C-10 is aimed at clarifying social media regulations and ensuring Canadians’ Instagram posts or YouTube videos won’t be subject to CRTC regulations — but until the CRTC drafts those rules, the impact of them won’t be clear, experts say.

The amendments come after both the NDP and the Conservatives have openly slammed the legislation which is intended to modernize the Broadcasting Act to reflect the fact that how Canadians consume things like news, music, and movies has changed.

But now, experts say the proposed law is full of murky details that won’t be ironed out until the CRTC drafts the specific regulations associated with the bill — and that in the meantime, the government is asking Canadians to trust them that the rules won’t go too far.

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“They’re asking for a leap of faith that this will be sorted when it hits the CRTC,” said Emily Laidlaw, Canada research chair in cybersecurity law at the University of Calgary.

The government says the new amendments would restrict the CRTC’s power, allowing them to regulate social media in just three different ways:

  • The CRTC will be able to ask a platform how much revenue they make.
  • The CRTC will also be able to ask for a certain percentage of those revenues to be funneled into Canadian cultural production funds.
  • Finally, it will be empowered to provide discoverability requirements for Canadian creators – meaning the CRTC can draft certain rules, like forcing a certain amount of Arkells, Celine Dion or other Canadian artists to pop up in your recommended videos.
Click to play video: 'O’Toole calls Liberal government’s Bill C-10 a ‘direct attack on free speech’'
O’Toole calls Liberal government’s Bill C-10 a ‘direct attack on free speech’

The exact shape that these new regulations take would be up to the CRTC, not the government — and they have yet to be determined.

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More broadly, the bill aims to modernize the Broadcasting Act to reflect the fact that Canadians consume things like music and movies differently nowadays — often using streaming services or social media.

And as Canadians’ consumption habits move online, ad money follows suit. Google and Facebook alone accounted for 80 per cent of online advertising revenue in 2019, according to a report from the Canadian Media Concentration Research.

By bringing platforms like YouTube and Facebook under the Act, these companies would have to fork over a chunk of their profits to the Canada Media Fund, which funds made-in-Canada programming. They would also be forced to make Canadian content more visible on their platforms.

The goal is to create an even playing field, where “foreign web giants can begin to contribute to Canadian culture, the same way Canadian broadcasters do,” Canadian Heritage Minister Steven Guilbeault said.

But while the proposed law suggests regulations for social media, one former CRTC vice-chair noted that the bill doesn’t ever define what “social media” is.

“How can you say that this will protect social media when you haven’t even defined what it is? And you’re leaving it up to the regulator, the CRTC, operated by nine government appointed people, all of whom I’m sure are fine people but are nevertheless not accountable in the same way that parliament is,” said Peter Menzies, a former CRTC vice-chair and past newspaper publisher.

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“It’s mind boggling.”

Laidlaw said the broad nature of the bill could have unintended consequences. For example, while the government might require a social media algorithm to make Canadian content more discoverable, it could have the inadvertent impact of elevating harmful content — provided it’s made in Canada.

“The reasons why this needs to be narrowly crafted is, a strict reading of this would be that any of that kind of hateful content would have to be discoverable,” Laidlaw explained.

Click to play video: 'Liberals propose new Canadian Broadcast Act rules for online streaming platforms'
Liberals propose new Canadian Broadcast Act rules for online streaming platforms

And while the recent amendments were aimed at clarifying the bill’s effect on social media, Laidlaw said that effort “hasn’t hit the mark at all.”

“It’s still all user-generated content on these social media sites,” she said.

“It’s still broad. It’s still the main things that they wanted before. It’s still discoverability rules. It is still imposing…financial contributions. So most of that is still there.”

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Menzies echoed the sentiment, calling the amendments “disappointing”

“The big thing that had been promised a week ago was that things would be made ‘crystal clear’ — that user generated content, and therefore speech, would not be regulated. The amendments introduced following that simply confirmed that user generated content, which is speech, will be subject to regulation,” Menzies said.

“So we’re right back where we started.”

He said that even with the changes, the bill still requires social media companies to comply with CRTC regulations. That means rather than leaving your content untouched, responsibility for regulating user-generated content — your cat videos and Instagram reels — will simply fall to the social media platforms.

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“They’re saying we’re not going to regulate you…but we’re going to get somebody else to do it for us,” Menzies said.

Meanwhile, after a week of heated debate, the Canadian Heritage committee has sent Bill C-10 for a second charter review.

In the time since the first charter review, the Liberals removed a section of the bill that had previously protected user-generated content and exempted it from regulation — meaning your Facebook and Instagram posts wouldn’t have been subject to CRTC rules.

Section 2.1 originally exempted all social media platforms from CRTC regulation, despite the fact that they account for a significant portion of Canada’s consumption habits today. That was the thinking behind the Liberals’ decision to drop the section from the bill — but the move also opened the door to CRTC regulation of user-generated content, like your YouTube videos.

Opposition MPs have argued the most recent iteration of the proposed law could easily infringe on Canada’s charter-affirmed free expression rights. The justice minister is now tasked with taking a second look at the amended version of the bill to ensure that its impact on free speech is demonstrably justifiable in a free and democratic society.

Guilbeault has insisted the bill satisfies that test.

“On top of the amendments, the Bill already explicitly exempts individuals from any contribution requirements. Bill C-10 isn’t about what Canadians do online, it’s about what web giants don’t do in Canada, which is support Canadian works, languages, stories and music,” he said in a statement.

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He explained that while the social media platforms will be required to make some content more visible, they won’t be required to take anything down.

“What discoverability means is that among the platform’s many algorithmically generated suggestions of what you might want to listen to or watch, occasionally these suggestions would include Canadian music or Canadian television or film,” Guilbeault said.

“It does not mean the CRTC would dictate, limit or prohibit a feed or what you can post, watch or listen to on social media.  As the Internet is infinite, discoverability won’t limit the content you see on a feed – it will just add more.”

Guilbeault’s parliamentary secretary echoed his words in a Monday press conference, arguing that the amendments ensure “a restricted form of discoverability.”

“The discoverability piece is is actually a restricted form, for social media platforms, and it is just restricted to highlighting Canadian creators,” Liberal MP Julie Dabrusin said.

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“But there is no requirement that there be a specific proportion of Canadian content.”

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The discoverability requirement won’t hide content from your social media pages, Guilbeault explained, it will instead “add more” Canadian content to your algorithm.

“Proposed amendments to the C-10 severely limit the powers of the CRTC to regulate social media platforms, and again clearly prevent individuals from regulation,” he said.

Still, the opposition remains unconvinced. Speaking Friday, Conservative Leader Erin O’Toole said the proposed changes don’t address his party’s concerns.

“These amendments that have been suggested do not protect the freedom of expression and the concerns that not only the Conservative Party has, but thousands of Canadians have,” O’Toole said.

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He called on Guilbeault to “pull this bill and start fresh.”

Menzies agreed with O’Toole.

“I don’t think they can fix Bill C-10,” he said.

Laidlaw was more optimistic.

“I don’t think they need to go back to the drafting board with Bill C-10 at all,” she said.

“Part of me is just concerned that the whole thing will unravel on this point — and they’ve got to get this one right. But…we need modernize broadcasting. This is needed. It just needs to be done the right way.”

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