Daniel Tencer: How a government with any courage would salvage Bill C-10

Justin Trudeau and Steven Guilbeault have shirked their responsibility to make political decisions and plan to dump them on civil servants

By: Daniel Tencer

Here’s something you might not expect: The CRTC, Canada’s ponderous, stodgy telecommunications regulator, is becoming known around the world. And it’s thanks to the federal Liberals’ Bill C-10, which would expand the CRTC’s scope to include social media.

In a recent video, American YouTuber Jeremy Hambly, who has 1.1 million subscribers to his channel, “The Quartering,” compared C-10 to the Great Firewall of China. Hambly seemed particularly incensed that his content — viewed by thousands of Canadians every week — could be subject to the CRTC’s discoverability rules, which would push social media to make Canadian content more prominent in their feeds — at the expense of content, like his, from outside Canada.

The very existence of the CRTC should “send shivers down your spine,” the moderately right-wing Hambly declared (though noting earlier that the U.S., too, regulates broadcast content). The comments section below his video contains angry assertions, ostensibly from Canadians, declaring their country has no freedom of speech and C-10 is the proof.

And the YouTuber made a declaration that should send shivers down the CRTC’s spine: Canada’s “weird points system” for determining what counts as CanCon “can be gamed and bent,” Hambly declared. 

Hambly is just guessing: At this point, nothing is known about how the CRTC will determine which YouTube videos, or Facebook or Instagram posts, are Canadian, and which ones aren’t. We certainly can’t assume the complex and cumbersome CanCon rules for broadcasters will apply to teens twerking on TikTok. Will YouTube accounts have to be certified as owned by a Canadian? Or will every individual video have to be certified, somehow, as Canadian? Or neither? We don’t know.

And that brings us to a core problem with this legislation: We know nearly nothing about what it will mean in practice. Bill C-10 gives the CRTC broad, vague powers, which the commission will have to interpret once the bill is law. As C-10 supporter Daniel Bernhard of Friends of Canadian Broadcasting pointed out in his column at The Line last week, “C-10 doesn’t say how these companies should be regulated, just that they could be.” So it's basically “first we pass this law, then these civil servants will figure out what it means.”

In essence, Prime Minister Justin Trudeau and Heritage Minister Steven Guilbeault have shirked their responsibility to make these political decisions, shifting them on to the senior civil servants who sit as commissioners on the CRTC.

And make no mistake, these are big political decisions: Should the government enforce language rules on YouTube videos as it does with broadcasters? Can it demand Facebook make some posts discoverable and others not at all? Decisions like that are a potential political quagmire.

These were decisions that until now were made largely by the social media giants themselves. Facebook and YouTube were the ones who took the flak for allowing or banning content. For years they have been deflecting accusations of political bias, of influencing elections, from both sides of the culture war. Now, it will be the CRTC inserting itself into the middle of these decisions. 

The commissioners may be surprised to find their decisions are suddenly of interest to people around the world. Unlike with broadcasting, social media rulings will attract the interest of Canadian online personalities with international followings — think Lilly Singh or Jordan Peterson, two Canadians with giant YouTube audiences outside Canada. (Peterson, with 3.7 million YouTube subscribers, has already declared his intention to go to war against any attempt to regulate his YouTube channel.)

The first time a world-famous YouTuber’s video gets a CRTC takedown notice, the first time a news article critical of a politician is made undiscoverable, the political excrement will hit the fan.

Are the low-key commissioners of the CRTC, often former telecom executives, ready for the spotlight? Ready for the torrent of social media hatred and abuse that will come their way? The public “exposés” of their telecom and media industry ties? No wonder Trudeau and Guilbeault don’t want to take responsibility.

Bill C-10’s supporters are right, and uncontroversial, in their insistence that there are reasons for the government to regulate online content to some extent: The proliferation of child porn, the live-streaming of terrorist acts and intellectual property theft are real problems and our ability to combat these things should be robust. 

So how about a bill that specifically targets these problems that C-10’s supporters are worried about? With resistance to the bill mounting, Trudeau and Guilbeault should take the opportunity to go back to the drawing board and rewrite C-10 from scratch, making it clear for what purpose the CRTC’s power to regulate online content is being enhanced — and delineating those powers very clearly.

Here are some questions that should be answered: How many YouTube viewers do you have to have to be considered a "broadcast undertaking"? In other words, exactly whose content will we be regulating, and whose will we not regulate?

For those who are considered “broadcasters,” will there be profanity rules? Equal-time rules for differing opinions, like the U.S. used to have? Times of day when you can’t stream certain kinds of content, as the CRTC does with TV now?

Will the CRTC exercise the power to make a YouTube video undiscoverable? Can it pull a YouTube channel down like it can pull a broadcast licence? 

Finally, how do social media companies determine what is and isn't CanCon? How do we stop Jeremy Hambly from gaming the rules? Joking aside, this is crucial because it will determine who benefits from online CanCon rules and who doesn’t. Will ordinary YouTubers be CanCon, or will only CBC and CTV qualify? We should even debate whether we need CanCon rules online at all. The evidence is thin that Canadians are having a hard time establishing a presence in the digital world, or that they can’t find content about Canada online.

The prime minister and cabinet should have the courage to make these policy decisions, or at least to detail in advance how they want the CRTC to use its powers, and not shun their responsibilities by tossing their civil servants to the wolves of the culture war.

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