Flipping the Line: Actually, Canadians, C-10 is necessary and good

The free speech evangelists say they're standing up for the little guy, but they're actually fighting to protect Facebook, Google and YouTube

The Line welcomes angry rebuttals and responses to our work. The best will be featured in our ongoing series, Flipping the Line. Today, Daniel Bernhard replies to recent criticism, here and elsewhere, of Bill C-10.

By: Daniel Bernhard

Hide the kids! Run for the hills!! The internet is under attack!!! The government is coming to censor everything you post to social media in "an unconscionable attack on the free expression rights of Canadians." The Russians are coming!!!!

This was the message from Professor Michael Geist and pro-tech advocates like Open Media over the past few weeks. The battleground is Bill C-10, which would update the Broadcasting Act for the first time since 1991.

At issue is a House of Commons committee decision to delete a convoluted and confusing legislative clause that would have given companies like Facebook and YouTube a blanket exclusion from Canada’s Broadcasting Act.

These militants are vocal, agitated and wrong.

Let's start with the facts. Bill C-10 originally contained a blanket exemption for any and all regulation under the Broadcasting Act for broadcasters like YouTube and Pornhub, simply because their content is user-generated. The Heritage Committee removed it. As it stands now, C-10 doesn’t say how these companies should be regulated, just that they could be. 

Crucially, the committee upheld another exemption ensuring that “a person who uses a social media service to upload programs for transmission over the Internet and reception by other users of the service” will not be regulated under the Broadcasting Act. There is another provision allowing the CRTC to exempt small players from regulation at its own discretion. And unlike traditional broadcasting, where you need to seek a license before you start operating, C-10 flips the paradigm for online broadcasting such that no advanced permission is required, which is of course as it should be.

So breathe easy: your right to free expression is not under attack. If Bill C-10 passes, the CRTC will be expressly prohibited from licensing or regulating people who upload videos to YouTube, for example. It says so in plain English.

In fact, far from letting the CRTC loose on your posts, C-10 restricts the CRTC’s authority over user-generated content. The current Broadcasting Act empowers the CRTC to regulate all broadcasting, defined as the transmission of audio-visual content from one source to many receivers. It is completely indiscriminate as to analogue vs. digital transmission or user-generated vs. professional content. And it provides no exemptions or protections for social media users. That’s right: the CRTC currently has the power to demand that every single social media user get a broadcasting license. They don't use that power because it would be both ridiculous and impossible to do so. But in theory, they could. I've been very critical of Bill C-10, but for all its faults, it does at least provide individual social media users protections against regulation for the first time.

As for the social media companies, the only thing standing between them and CRTC regulation is the CRTC itself. In the 90’s, the CRTC passed an order preventing itself from regulating digital media. They can revoke it, unilaterally, at any time. In other words, the doomsday scenario you’re hearing about is actually the status quo, and alas, the sky has not yet fallen.

Part of the problem with this debate is that many of its main protagonists are not broadcasting experts. They may know about some aspect of the internet, but broadcasting is a tricky specialization. They can argue that C-10 will allow the CRTC to set "the rules for free speech online" because they don’t understand the current Broadcasting Act that C-10 will modify but not replace.

The erstwhile debate about the little guy’s free expression rights is in practice a fight to protect the biggest of big guys from regulation: Facebook, Google and YouTube. And therein lies a tragic irony. Those heralding the death of the open internet speak as though the internet of 2021 is the free, utopian, decentralized paradise that it was in the early 1990s. Unfortunately, today's internet is the polar opposite of that idyllic memory: a predominantly private space, owned and governed by a handful of private companies who are regulating speech in incredibly intrusive and unaccountable ways, engaging in take downs and content appeals that the CRTC has never done.

Even in the highly unlikely scenario that the CRTC tried to do anything more than collect money from these platforms, the threat is over-hyped. The CRTC has licensed broadcasters for years. Is CTV a hostage of censorship? Of course not. Because for all its faults (there are many), the CRTC doesn’t police programming. Even Canadian content rules have nothing to do with content, focusing instead on whether the people who made the program are Canadian with no regard for what a program actually says.

The intemperate hysteria about Bill C-10's treatment of social media monopolies is little more than an explosion of wild hypotheticals. Critics worry that there could be an overzealous regulator, someday, that might engage in population-level censorship. Those fantasizing about a slippery slope to censorship should return to the real world, where companies monetizing user-generated content are inflicting real harms, today, that make the internet worse for everyone. 

Pornhub's user-generated content includes tens of thousands of videos of children being sexually assaulted. That’s not hypothetical. That’s a fact. 

Or how about Facebook live broadcasting the Christchurch mosque murder and to users who did not seek it out? Or when they let white nationalists upload videos of themselves building bombs and did nothing? These aren’t maybes. These are facts.

It's not radical to say that broadcasts like that should not be allowed in Canada. That’s not censorship any more than it is censorship to prohibit death threats.

Sadly, one of C-10’s greatest failings is that it stops short of making companies like Facebook and YouTube responsible for the content they broadcast. Reflecting their poor understanding of the internet, the Heritage Committee decided that companies should not be responsible for the decisions of their algorithms. I wish they made a better choice, but the outcome is very strong protection for social media companies that the cottage industry of broadcasting experts which has sprung up on Twitter doesn’t seem to have noticed.

There are other sensible regulations that could be applied to trillion-dollar social media companies with zero impact on free expression. I already mentioned contributions to funds supporting Canadian content. You don’t have to like mandated contributions to agree that they have no bearing on what users say.

Or what about advertising standards? A few weeks ago, Facebook was found to be allowing advertisers to target ads for alcohol, cigarettes and gambling to 13-year-old kids in Australia. Is it censorship to regulate YouTube so that it cannot legally show beer ads on Bugs Bunny clips? Not at all.

This debate has become untethered from reason and it needs to come back down to Earth. It is wholly possible and eminently necessary to ensure that Canada’s largest broadcasters, the likes of YouTube and Netflix, are subject to limited, appropriate regulations that govern their activities while fully respecting the free expression rights of individual Canadians. 

Daniel Bernhard is executive director of FRIENDS of Canadian Broadcasting, an independent citizens’ group championing Canadian culture and democracy on air and online. FRIENDS is not funded by or affiliated with any broadcaster, corporation or political party. Twitter: @sendinthewolf

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