What’s Bill C-11 Up To Now?

Available in Audio Format:

Imagine for a moment a silly situation. Imagine that legislation is alive. Now imagine you sit down with the proposed Online Streaming Act, also known as Bill C-11, for a private evening chat. Just you, C-11, and a nice crisp lager. C-11 sits back and, reflecting on its life, the bill sighs, looks you in the eye, and quotes the famous author, Hermann Hesse: “Whither will my path yet lead me? This path is stupid, it goes in spirals, perhaps in circles, but whichever way it goes, I will follow it.”

I am sure we can all sympathize with our animated paper friend. For those of us following C-11’s meander through the House of Commons and the Senate, it has been quite the ride. The Liberal administration has introduced the bill in two different parliaments. It has been in and out of committees, and in and out of the Senate. Given C-11’s controversial nature, it has made the headlines quite a bit.

Because of all of this, it can be tricky to understand exactly what C-11 says now. So, we thought we would give you a rundown of exactly that – what the bill says.

In our view, the Senate made four amendments of consequence that the House of Commons considered.

First the good news:

• Increased focus on privacy: The Senate added some aspirational language directing that the bill be interpreted in light of privacy rights. Thankfully, the House of Commons accepted that amendment.

• Dropping the “disinformation” boogeyman: The Senate removed platitudes about “countering disinformation” from the bill. Oftentimes our authorities promise to fight “disinformation” and its slightly less sinister cousin “misinformation,” but simply engage in plain viewpoint censorship. For example, earlier this year, the Council of Canadian Academics — an organization largely funded and governed by the federal science ministry — released a study on misinformation. The study concluded that if someone described Ontario’s old cap-and-trade carbon pricing system as a “job-killing carbon tax” they would be spreading misinformation because “evidence indicates that climate change policies … boost levels of employment or leave them unchanged.”

While it is true that a cap-and-trade system does not meet the definition of a tax, the study did not label the statement misinformation for that reason (because calling a cap-and-trade system a “job-killing carbon tax” is an obvious bit of political hyperbole). No, it labelled it misinformation because the Council disagreed with the economic conclusion drawn by that statement – i.e., that a cap-and-trade system would reduce jobs. Unfortunately, all too often, laws about misinformation or disinformation (the terms often merge) focus on viewpoint censorship and not on creating actual transparency.

Now the bad news:

• Porn companies let off the hook: One Senate amendment would have made the CRTC (the independent body that regulates broadcasting in Canada) adopt a policy to implement age verification for explicit content. Unfortunately, the House of Commons did not think that keeping pornography producers out of Canadian children’s lives was worth including in C-11.

• Government still plans to regulate the content that regular Canadians post on social media: For a long time, the government’s pitch for C-11 has been the following: “We are trying to regulate social media platforms, not social media users.” The Senate amended the bill so it would do just that. The government rejected the amendment completely. The fact that it was Senators appointed by the sitting Prime Minister who made the amendment makes the government’s rejection even more jarring. The government has made itself clear – it wants to pass a law so that it can steer the CRTC toward the regulation of user content. In the government’s official response to the Senate, Pablo Rodriguez, the sponsor of the bill, explained that the government rejected the amendment because it would limit the power of the Cabinet to direct the CRTC to regulate social media. You can read what he wrote to the Senate here.

To sum it all up, the House of Commons has accepted minor improvements but rejected any amendments that would constitute major improvements. Despite Senate efforts, C-11 is still a bad bill. Giving a government body the power to regulate what people say online is just a bad idea. As Professor Michael Geist points out, if C-11 passes, Canada will be the only democratic country in the world to regulate user content.

Will Bill C-11 become law now?

The House of Commons has sent the bill back to the Senate after addressing the amendments mentioned above, but that does not mean the Senate will accept the changes. The Senate does not have to let C-11 move on to get Royal Assent and become the law of the land. The Senate has considerable constitutional power. The Senate may reject a bill for as long as it likes, and no bill can become law unless it has passed the Senate. It is conceivable that the Senate could just send Bill C-11 back to the House of Commons one more time for further amendments.

Typically, however, the Senate does not reject bills from the House of Commons over and over. There is an unwritten understanding that the unelected Senate should not ultimately stand in the way of the elected House of Commons. The Senate may lean toward passing C-11 because this is the third time that C-11, or its predecessor C-10, has reached the Senate. Of course, this is conjecture. Initial debate in the Senate shows that certain Senators are still quite unhappy about C-11 having the potential to give the CRTC the power of policing people’s online opinions.

So, while we all wait through yet another turn on C-11’s spiralling path, we ask you to keep following up on this issue by writing an Easy Mail to your Senators, urging them to re-introduce their amendments or vote against C-11 altogether.