Is the Federal Government Attacking Free Speech?
If you haven’t been paying attention, there’s been a lot of uproar over claims that the federal government is trying to limit free speech on the internet through Bill-C10 last year and, now, Bill-C11. Is this true? Would the Prime Minister actually assault the fundamental freedoms of Canadians? It’s time for a Moevestigation into free speech:
Our story begins three years ago, in the run-up to the 2019 federal election. Justin Trudeau’s Liberal Party released their platform, Forward: A Real Plan for the Middle Class¸ which contained a section devoted to Canadian arts and culture. The section detailed numerous ideas and pledges designed to protect and support Canadian arts and culture and also featured a distinct pledge that stated they would:
“...move forward, in our first year, with legislation that will take appropriate measures to ensure that all content providers – including internet giants – offer meaningful levels of Canadian content in their catalogues, contribute to the creation of Canadian content in both official languages, and promote this content and make it easily accessible on their platforms.”
At the time, it was anyone’s guess what that would look like. But in the not-too-distant future, the Liberals would unveil Bill C-10 and it would be a doozy. You can read the bill in its entirety here. Screenshots are included below for reference.
To summarize, Bill C-10 would have modernized the language used in the Broadcasting Act to apply to the digital era we live in and also expand the authority of the Canadian Radio-television and Telecommunications Commission (CRTC). So, what was the problem? There were two: firstly, Bill C-10 gave the CRTC the mandate to regulate the “discoverability” of Canadian content on large, online media platforms like Netflix, YouTube, and Spotify. Secondly, the CRTC would be able to regulate streaming services like those previously mentioned to broadcast a minimum amount of Canadian content and pay a portion of their revenues to the Canadian Media Fund, the regulation imposed on tele-com companies like Rogers, Shaw, and Bell. The second wasn’t an issue at first but became one once the Bill was amended. The original Bill C-10 featured a very important exclusion clause that exempted user generated content from having to meet the criteria for Canadian content set out by the CRTC. However, this exclusion was later removed by the government while another amendment was included that could see the aforementioned CRTC-imposed regulations apply to smartphone apps as well. Crazy right? The government would, in theory, be able to regulate the social media posts made everyday by Canadians and force streaming platforms to pay for showing Canadian content.
This would lead to the uproar over the impact C-10 would have on free speech. Except, free speech was never really threatened. Then-Canadian Heritage Minister Steven Guilbeault maintained that the CRTC had never moderated content, was not going to start now, and that the exclusion clause was not necessary since it was never the role of the CRTC to fixate on individuals. A review of C-10 performed by the Department of Justice and led by Then-Justice Minister David Lametti, conducted upon the request of several MPs, found that the act did not infringe on Canadians’ free speech rights for two reasons: firstly, because the updated Bill contained another clause that made clear individuals unaffiliated with social media platforms would not be subject to regulation and secondly, because the Broadcasting Act itself contains a clause that requires that the Act “…be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.”
This doesn’t excuse the behaviour of the federal government. Minister Guilbeault was unable to explain why the government included the original exclusion clause in the first place if it was as unimportant as he claimed it to be. The Liberal government also tabled and passed several motions to reduce the amount of time given to debating the merits of the Bill, including one that limited debate time for the heritage committee. They also made amendments to the Bill without making them known to the public, effectively in secret.
While C-10 was projected to bring in about $830 million dollars through contributions made my online broadcasters under similar regulations as traditional media, there were still too many concerns even with the reduced debate and new amendments. People weren’t sold on the government’s assertion that the Bill would not affect free speech, even though there was some agreement that streaming platforms did need regulation, and there was also a belief that the Bill would do nothing to encourage innovation in the media. Some saw it as a way to try a prop up a failing establishment (traditional media) by applying the same regulations to the modern establishment (digital media).
Ultimately, Bill C-10 would not be passed. While the Bill made it through the House of Commons on the backs of a unified Liberal, NDP, and Bloc Quebecois front, it would face significant pushback in the Senate. Ultimately, it became apparent that the government’s tactics were designed to try and ensure the Bill was passed before the government stopped sitting for the summer. It wouldn’t, as the Senate decided that the Bill needed more analysis and more time to study and so, referred it back to the heritage committee.
So why is this relevant now? Well, the Liberals called a snap election in 2021 and released another platform, Forward: For Everyone. Again, the platform contained a specific section for Arts and Culture. Within this section was this commitment:
“Within the first 100 days, reintroduce legislation to reform the Broadcasting Act to ensure foreign web giants contribute to the creation and promotion of Canadian stories and music.”
Ah, those Liberals! They never know when to let a dead horse die, do they? So here we are again. But this time, it would be different! Or so they said! With Trudeau’s 100 days in office mark coming up quick, the Liberals decided to try and keep their pledge by introducing Bill C-11. The summary of the Bill is included below.
The Bill’s intended purpose is, in essence, the same as Bill C-10. However, now the Bill makes it clear that the regulations imposed on social media platforms would only impact commercial content, like professional music videos, and not everyday posts from everyday Canadians. Current Heritage Minister Pablo Rodriguez stated that he would personally request the CRTC to clearly define what would and wouldn’t constitute commercial social media and what constitutes Canadian content. While concerns remain about whether or not the CRTC has the means to effectively regulate the internet, its chairman, Ian Scott, says not only can they regulate the internet effectively, but they can also do it in a way that still protects free speech. It’s clear though that while C-11 is still a flawed piece of legislation, it is an improvement on its predecessor. Ramneet Bhullar of OpenMedia wrote a fantastic article that laid out what she believes needs to be changed about C-11. She mentions the fact that the Heritage Minister has included three factors for the CRTC to consider when determining who is a broadcaster:
How much revenue the ‘broadcaster’ is generating, whether this is from ad revenue, promotions, directly or indirectly from platforms;
Whether it is posted or cross-posted to a platform the CRTC already considers a broadcasting undertaking;
Unique identifiers associated with the content. This can range from an International Standards Organization number (ISO) to a URL.
This is definitely a positive contribution but as she mentions in her piece, it still leaves room for a gray area to exist which means everyday social media users could find themselves being classified as broadcasters. She goes on to mention how even though C-11 doesn’t allow the CRTC to force platforms to use a specific algorithm, they still have the authority to determine the outcomes of algorithms by requiring a certain amount of Canadian content be promoted. These are serious issues that need to be addressed and it’s clear that they’re not the only issues with YouTube warning that promoting Canadian content risks lessening the popularity of Canadian content abroad which would in-turn affect the earnings of Canadian creators.
The good news for everyone is that the Heritage Minister has said the Bill is open to change while it undergoes committee scrutiny. That means there is hope. Hope that the language can be more specific and provide more concrete definitions; hope that the algorithm issue can be corrected in a way that is fair to content creators and consumers; and hope that the federal government can come up with legislation that benefits Canadian culture, content, creators, and consumers without also infringing on their right to free speech.
From this analysis though, it’s clear that Bill C-11 does not infringe on Canadians fundamental freedom of free speech. While concerns did exist at the beginning, the government has taken demonstrable steps to ensure the legislation does not affect free speech. It’s not perfect, but it’s not the assault on freedom some would have you believe. It was never realistic that the government would allow the CRTC to regulate individual’s social media posts nor would they give the CRTC sweeping authority without giving specifics about who/what their authority would affect. Free speech is one of the most important freedoms we have in our democratic society and as you can see, even a remotely possible infringement on that right is greeted with derision, contempt, and a resounding “no”, exactly as it should be. Raising these concerns in the hope of getting the government to improve their legislation is a good thing. Raising these concerns to score points with the “Trudeau-is-a-dictator” crowd is not.
I’m glad that people are holding the government accountable and not letting them pass whatever they want freely. That’s what makes our democracy strong. Here’s hoping our democracy is strong enough to make meaningful change to Bill-C11 and make it a bill that benefits all of Canada and all Canadians. Cheers!