The CRTC has earned an international reputation as the federal institution that pushes Canadian content, but hasn’t pushed hard enough to protect Canadians from some of the highest wireless rates in the world — so it’s easy for most Canadians to ignore the debate about Bill C-10, which would amend the Broadcasting Act and give the CRTC additional powers.
On one side is the Prime Minister, who dismissed the Bill’s critics as “conspiracy theorists” and people who wear “tinfoil hats,” and Canadian Heritage Steven Guilbeault, who sponsored the Bill and has decreed the new law necessary to be able to protect Canadians from ‘hurtful’ comments, Internet content that infringes on “social cohesion” (whatever that is), and any that might undermine the credibility of the government, public service, or federal institutions. Think: Canadian journalists, academics, parliamentarians and their constituents who question, contradict, or criticize government decisions, actions or policies.
On the other side of the increasingly polarized debate is many knowledgeable and thoughtful experts — including former Information and Privacy Commissioner Ann Cavoukian, a former CRTC commissioner (who characterized Bill C-10 as “a full-blown assault on freedom of expression and the foundations of democracy”), Senator Pamela Wallin (who described the Bill as a “full-on assault on free speech in a democracy”), law professors Emily Laidlaw and Michael Geist, and other credible critics — who have focused on the obvious impacts of some of the Bill’s provisions.
Keen observers might notice that the debate has missed or avoided some (hopefully) unintended consequences the Bill triggers through a sleight-of-hand that relies on vague language and Kafkaesque reasoning.
Governance. Bill C-10 will require internet platforms to submit to CRTC conditions on their “ownership, governance and control.” When they catch their collective breath at the prospect of having to allow an agent of the Canadian government dictate their ownership, governance or control, non-Canadian platforms will do what responsible businesses do: conduct a cost/benefit analysis to assess the revenue-generating potential of a relatively small market against the cost and nuisance value of servicing that market.
If the assessment determines that the conditions are more bother than they’re worth, it is reasonable to expect foreign platforms (which generally have small, if any, operations in Canada) to simply stop servicing the Canadian market, jeopardizing Canadians’ access to the very platforms that have become essential for the Government of Canada and Canadians’ communication, education, commerce and social interaction.
Content. The Prime Minister has assured that “we made sure the Bill covers professional, profitable content while explicitly exempting regular users from contribution requirements.” To be clear, the Bill offers no such provisions, and neither Bill C-10 nor the Broadcasting Act articulate or distinguish between “professional content” or “regular users.” Since the Broadcasting Act “applies in respect of broadcasting undertakings whether or not they are carried on for profit”, some might characterize Mr. Trudeau’s optimistic interpretation as false or misleading.
Similarly, Minister Guilbeault has repeatedly assured that Bill C-10 will not censor Canadians, explaining that “user-generated content would be excluded, but that online platforms that act as broadcasters would be included in the legislation.” But, as the Prime Minister more insightfully indicated, Bill C-10 is not about what Canadians do online; rather, “It is about what web giants do not do.”
In other words, Canadians’ right to free expression will not be affected directly; but their comments will have to be censored by the web giants, platforms, and anyone else the CRTC deems to be a ‘broadcaster’ — regardless whether or not the content originates within Canada or is within existing limits of free expression detailed in the Criminal Code and articulated by Canadian Courts.
More insidiously is the Orwellian reality that compelling broadcasters to examine all content can only occur if it breaks encryption — and that jeopardizes the privacy of personal, confidential, and privileged information including discussions conducted via VPN, and content traversing end-to-end encrypted platforms such as Signal and Protonmail (which members of the federal public sector and government might rely upon for confidential discussions, collaborations, and video presentations).
Requiring broadcasters to examine content before making it available to Canadians would impose a truly Kafkaesque situation for organizations that must comply with Canadian and foreign privacy laws: On one hand, companies, government organizations, and public bodies would have to comply with the laws that require them to prevent unauthorized access, use or disclosure; and on the other hand, Bill C-10 will require service providers inspect all content to determine if it complies with government standards of acceptable speech.
Insisting that the Internet be inoffensive is a demand that does not reflect the offline world; and while the protections from government over-reach articulated in Canada’s Charter of Rights and Freedoms are not absolute, the prospect of living under a regime that requires that opinion, thought, or criticism be monitored, evaluated, and censored (even indirectly) is reminiscent of repressive and Communist-governed countries that inspired so many Canadians and their ancestors to flee in favor of life in a free and democratic Canada.
As the Bill progresses through the process of becoming law, it will be interesting to see if parliamentarians support or sacrifice Canadians’ freedoms, their fundamental human rights, and organizations’ ability to comply with Canadian privacy laws.
