Bill C-10 Leaves Far Too Much to the Imagination

Internet policy in Canada is set for a major update should Bill C-10 pass – but it’s the sort of update that will take ages to install and may break more than it will fix. It is odd to have a piece of legislation spoken about in such starkly different terms. Some opponents have described it as an attack on ‘free speech’, while proponents see it as getting our due from the ‘web giants’. This contrast is made possible by the details missing from the legislation, or what it leaves for regulators to determine in the future, when they struggle with implementing cultural policy across internet platforms.

Supporters working in the Canadian media industries imagine that they will benefit from the eventual outcome, although this is less true of content creators that have historically been excluded from Canadian cultural policy, such as users uploading videos to streaming sites and smaller online services. Those who feel well-served by the aims of pre-internet broadcasting policy can expect to be well-served by C-10, which essentially extends the Broadcasting Act to regulate where it previously has not. C-10 is first and foremost about regulating “online undertakings” as broadcasters – treating today’s internet platforms like the television and radio stations that dominated media when the Broadcasting Act was written. What this will actually mean for Netflix or YouTube will be decided by the CRTC, but it’s entirely reasonable to expect some system to promote the “discoverability of Canadian programs” that commands these services to modify their menus or algorithms if they want to operate in Canada. This raises the question of what counts as a Canadian program, and what platforms the regulations will apply to. However, the gist of it is that the CRTC has largely regulated the internet through telecom policy (the Telecommunications Act) rather than cultural policy (the Broadcasting Act). Where telecom policy requires non-discrimination and net neutrality (telecom companies are not supposed to mess with the content of what they are delivering to your screen), cultural policy includes the promotion of content that serves our shared interest as Canadians.

This is where concerns about free speech and the open internet have come into play, but there are numerous other issues that have been raised in recent weeks by legal scholars and internet policy experts such as Michael Geist, Dwayne Winseck, Emily Laidlaw, and Fenwick McKelvey, as well as former CRTC Chair Konrad von Finckenstein. These experts broadly agree that it is indeed important to regulate the big platforms, just not in this way, and all of them have been concerned with the vague scope of the bill. C-10 so far has been a squandered opportunity to actually consider what we want from internet and cultural policy in Canada, and instead seeks to simply extend the obligations of 20th century broadcasters (to fund Canadian content, and to show a certain amount of it) to the internet. Unfortunately, doing so with this particular piece of legislation will be anything but simple, and in trusting the CRTC to sort out the details we are setting up years of political battles, regulatory proceedings, and court cases, with some very uncertain outcomes.

The key questions to ask are: who will be regulated by this law and in what manner? The government has done a terrible job of answering these questions, including explaining why it has eliminated the section (4.1) of the bill that explicitly stated it would not regulate user-generated content, or explaining what kinds of online services won’t be regulated by the bill. The collateral damage from the bill could be significant, and implementing it would require asking the CRTC to do a lot more as a regulatory body in new domains, where it often seems challenged by its current responsibilities. C-10 is deliberately unimaginative, but remains open to various interpretations, including imagined windfalls from Silicon Valley and dark visions of government control.

Last week the government took the rare step of cutting short committee review of the bill and pushing ahead towards a House of Commons vote in the near future. Then came the strange sight at the end of the week of the heritage committee wrapping up its work by plowing through votes on a long list of amendments without explaining what was in them. As a result we have C-10 heading back to the House, without a clear idea of what’s in it beyond what Michael Geist pieced together. Apparently we will find out what the amended text is in the next few days. C-10 has been a badly-written and poorly justified piece of legislation, which has left far too much to the imagination (including what is actually in the current text of the bill).

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