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Freedom of Expression and the Regulation of Social Media through Bill C-10

 

May 21, 2021 | Andre Schutten
Last fall, the federal government introduced Bill C-10, a bill that – if passed – will amend the Broadcasting Act for the first time since 1991 in order to expand the regulatory powers of the Canadian Radio-television and Telecommunications Commission (CRTC) over the internet. In the last month or so, the number of critics has increased, as has the vociferousness of their opposition to the bill.

When Bill C-10 was first introduced, we did an initial analysis and found that, while there were aspects of the bill that concerned us, the bill was (and remains) a specialized piece of legislation for a complex area of public policy outside our wheelhouse and, with everything else on our plate, we did not feel the need to wade into the fray.

And then things got interesting.

In February, Bill C-10 was referred to the Heritage Committee for further study. After hearing from dozens of witnesses and receiving many briefs, on April 16th the committee began what is called clause-by-clause consideration of the bill. At this stage, members of Parliament on the committee can propose amendments to the legislation – deletions, additions, or corrections. Each clause of the bill and each proposed amendment is debated and voted on. On April 23rd, the committee voted to delete from the Bill the following text:

4.‍1 (1) This Act does not apply in respect of

(a) programs that are uploaded to an online undertaking that provides a social media service by a user of the service — who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them — for transmission over the Internet and reception by other users of the service; and

(b) online undertakings whose broadcasting consists only of such programs.

This clause was an important safeguard and would keep private social media posts from being regulated by the CRTC. Think of ARPA Canada’s weekly “Quick Updates” videos or your church’s sermons and live stream services uploaded to YouTube. Clause 4.1 would ensure that the CRTC would not regulate those videos as “broadcasts”. With the deletion of 4.1, it appears that it is now open to the CRTC to regulate that content if it so chooses.

Freedom of expression is within the expertise of ARPA Canada and where this bill threatens expression, we are very concerned.

The law and regulation around broadcasting is very complex and the nitty-gritty of those aspects of the law is outside the expertise of ARPA Canada. But freedom of expression is within the expertise of ARPA Canada and where this bill threatens expression, we are very concerned. The so-called “Charter statement” from the Department of Justice – an analysis of whether Bill C-10 as amended may violate the Charter – is shockingly shallow and amateurish. One law professor wrote that any law professor would give it a failing grade for how pathetic the analysis is. I concur – there is no meaningful engagement with the Charter guarantee of freedom of expression, nor with the Charter’s high standard for justifying any violation of the freedom of expression.

Furthermore, reputable and trustworthy sources (Christian and non-Christian) with expertise in broadcasting law have been raising the alarm about this huge shift toward internet regulation. Having reviewed some of those sources, I recommend the following:

  • Michael Geist, a University of Ottawa professor of law and the Canada Research Chair in Internet and E-commerce Law, whose criticism has been scathing
  • Peter Menzies is a former vice-chair of the CRTC itself and has also been very vocal in his criticism (Menzies is also affiliated with Cardus, a Christian think tank)
  • Sean Spear is a Professor of Public Policy at the University of Toronto and his thoughtful approach to dealing with the problem that C-10 is apparently trying to fix is worth considering
  • And Peter Stockland (also affiliated with Cardus) writes a very helpful two-part series in Convivium (part 1 and part 2)

To be fair, I also read some sources in support of Bill C-10. A persuasively written column by Daniel Bernhard is worth reading for counterpoint, though his reasons for supporting C-10 seem to be much better dealt with by existing criminal law and police powers or by amendments to criminal legislation targeting online sexual exploitation or the broadcasting of crimes.

So, where to from here? Bill C-10 is still being hotly debated at the Heritage Committee and amendments to the bill are ongoing. We will have to wait and see what the final text of the bill looks like when it comes out of committee. At this stage, it may be well-worth reminding your Member of Parliament that you have concerns about freedom of expression and, while the nuances of the Broadcasting Act may be lost on you and me, we do not want user-generated content regulated by the CRTC either directly or indirectly through Big Tech. The truly concerning material on the internet (pornography – particularly the heinous kind, as well as hate crimes and so on) should continue to be dealt with as criminal matters by the police. A broadcast regulator is wholly unqualified to deal with crime and should not be regulating the free expression of ideas on the internet.

If you’d like to send such a note to your MP, just click on the link below to get started.

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