Bill C-10 doesn’t pose free speech concern despite social media impact, justice minister finds

Editor’s note: An earlier version of this story incorrectly referenced a section of Bill C-10 as 2.1. The correct section is 4.1.

Bill C-10‘s amendments regulating social media websites Canadians use don’t pose any charter-related free speech concerns, Canada’s Justice Minister David Lametti said in the second charter review of the bill.

The finding was issued Thursday after a second charter statement was conducted on the bill. Opposition MPs had requested the new charter statement after multiple experts warned the latest version of the bill could allow the government to regulate everything you post on social media.

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

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.

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Section 4.1 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.

And while it’ll be up to the CRTC to draft exactly what those regulations might look like, experts have warned this could allow the CRTC to regulate anything they’d like on social media.

“Social media companies (would be) legally responsible for all these videos that users post as though they’re somehow broadcasting programs,” Emily Laidlaw, Canada Research Chair in cybersecurity law at the University of Calgary, said in an interview with Global News in early May.

A former CRTC vice-chair echoed her concerns shortly after Section 4.1 was dropped from the bill.

“It’s your Facebook post. It’s your tweet. It’s your cat videos. It’s your pictures of your children and grandchildren and that sort of stuff,” said Peter Menzies, who is also a past newspaper publisher.

“What it means is that somebody will be watching that, from the government, or a government regulator, and will be able to order it to be taken down if they find that it doesn’t suit whatever purposes they have.”

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In a bid to quash concerns, the government amended the bill to refine the areas of social media that the CRTC would be empowered to regulate.

The amendments left the CRTC with just three areas of regulation:

• The CRTC will be able to ask a platform how much revenue it makes.
• The CRTC will be able to ask for a certain percentage of those revenues to be funnelled 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 content from the Arkells, Celine Dion or other Canadian artists to pop up in your recommended videos.

The charter statement cited these amendments in its findings.

“The Government has proposed amendments to Bill C-10 that would limit the ability of the Canadian Radio-television and Telecommunications Commission (CRTC) to regulate an online undertaking that provides a social media service in respect of programs posted by its 2 unaffiliated users,” read the new charter statement.

“In this respect, the Commission’s regulatory powers would be limited to only the following discrete matters, and these requirements could only be imposed upon the social media service, not on its unaffiliated users.”

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The charter statement added that the CRTC’s new powers “would not include program standards (for example, prohibited programming content) or the proportion of programs that must be Canadian.”

The CRTC will also have to make sure it strikes the right balance between free speech rights and the objectives of the Broadcasting Act.

“In making regulatory decisions, the Commission must proportionately balance the objectives of the Act with the protection of freedom of expression in light of the facts and circumstances,” the statement read.

“The Commission’s decisions on matters of law or jurisdiction are subject to review by the Federal Court of Appeal.”