Jen Gerson: Do the Liberals not have other priorities right now?
Jen Gerson: Do the Liberals not have other priorities right now?
Nah, let's just regulate the Internet.
As one of Ontario's hospitals almost runs out of oxygen, and our defence minister announces a review of sexual misconduct in the military, the Liberals have decided that this seems like as good a time as any to fix the Internet.
Or, more specifically, the Broadcasting Act, which is currently before committee; the reforms to the act have been presented as a way to expand things like content requirements and other Canadian norms to digital streaming services like Netflix and Disney+. This is misguided for a host of reasons, but well within the usual bounds of nanny-state nonsense we already generally accept from our government.
However, the path to Royal Assent took an interesting turn last week when Michael Geist, Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, noted that the Liberals had removed an exclusion that would have protected user-generated content, like YouTube videos and TikTok shorts, from CRTC regulation. The effect, he argues, is to give the regulator extraordinary power to police that content, ensuring it meets the standards laid out for mainstream broadcasters. Maximum penalty: a $15 million fine. Not mincing words, he wrote that this change would make an already bad piece of legislation far more dangerous: "Bill C-10 represents an unconscionable attack on the free expression rights of Canadians."
I've tried to slog through the draft legislation of C-10, and I'm not sure I understand the legislation in the same way that Geist does, but there are two serious caveats to that admission; the first is that I'm not the Canada Research Chair in Internet and E-commerce Law. The second is that the bill is bloody impenetrable.
The timing is also not-a-little suspicious. First Reading was on November 3, American election day, and the bill is now in its late stages. We're 1,294 months into a global pandemic, staring down a third wave of cases. Nobody's got the bandwidth for this right now, including, I'd argue, the Liberals.
Even if this bill were entirely above-board, is this really the best moment to introduce legislation that expands regulation over the Internet? Trust in government is not at an all-time high, my people. At this point, I take almost nothing anybody with a credential tells me at face value, and I suspect I am hardly alone.
I'm also not particularly becalmed by Heritage Minister Steven Guilbeault's response to the creeping alarm now being raised in conservative circles about the impacts of C-10. On Tuesday, he responded to questions about the bill in the House of Commons.
When asked point-blank what his government was playing at, Guilbeault said:
"We have said from the beginning, when we introduced Bill C-10, that user-generated content would be excluded, but that online platforms that act as broadcasters would be included in the legislation."
M'kay champ, but then why cut the exclusion at all? And if you're subjecting online platforms — like, say, YouTube — to CRTC regulations, a lot of ordinary users are going to get caught by these regulations by default. If you're YouTube, how are you going to respond to a regulatory environment that demands more Canadian content, or requires equal time for partisan viewpoints, as the Broadcasting Act does? Are you going to risk a $15 million fine on a channel that a newly emboldened CRTC decides is a risk to undermining Canada's "social cohesion," as defined by chuckles and his crew?
Again, on Thursday, Guilbeault had the opportunity to sooth my paranoid temper in the House. He could have explained why the committee made the amendment, and explain how the bill protected user-generated content on the platforms he intends to regulate. Instead, he responded: “It seems that the Conservative party is listening to the most extremist element of their party."
Wait, Michael Geist is an extremist element of the Conservative Party? Michael Geist? And Open Media? Or, perhaps, Peter Menzies? A former CRTC commissioner, newspaper publisher and sometime columnist at the notoriously extremist Canadian cohesion-undermining Substack known as The Line? That Peter Menzies? The one who told the Post that Bill C-10 “doesn’t just infringe on free expression, it constitutes a full-blown assault upon it and, through it, the foundations of democracy.”
That dog don't hunt, Steve. That dog is going to lick its own asshole before running off a cliff. That, dog, is dumb.
Look, Steven Guilbeault has always been a fanatic for his cause de jour. And the Liberals put him at the head of Heritage for a reason. His position can only amplify the party’s historic tendency towards paternalism, love of regulation, and distrust of free expression. Once, this kind of regulation was justified by the enormous shadow of American cultural influence; that old trick doesn’t carry the same sting today, and now we’re seeing the new, modernized prick of it.
Heritage is in thrall to Quebec’s cultural industry, in particular, and will not hesitate to expand its own regulatory powers to “protect” that province from the predations of Anglo influence. And a significant chunk of English media will fall in line, buying the pretext that expanding regulation is necessary to contain the contagion of far-right populism — without any thought to whether this approach is reasonable, effective, or minimally impairing of ordinary rights, including their own. God help them all when the Liberals are out of power.
Was this not glaringly obvious last year when he appeared on CTV's Question Period and suggested that credible news media would be required to apply for licensing in order to fulfil CanCon requirements imposed on content distributors?
And then, under extraordinary backlash, he had to backtrack, assuring Canadians that the government only meant that outlets creating cultural content would need to be licensed.
Apropos of nothing, by the time he gave that interview, we were already half way to a state-backed media licensing machine, thanks to the Liberals' media-bailout package — which requires an independent state-appointed panel decide which outlets qualify for taxpayer largesse. Because of course it would.
Or, perhaps we can recall Guilbeault's supportive noises about Australia's plan to tax Facebook, largely to the benefit of the Murdoch media empire. More regulation, more taxes, more government is always going to be the answer with this guy.
Meanwhile, legacy media rent-seekers, increasingly cash-strapped and desperate, have also grown fearful of "Big Tech" conglomerates that not only spread conspiracy theories and misinformation, but also fundamentally break their own fingernail-deep grip on narrative and legitimacy. “Social cohesion,” indeed.
Media and the governments that fund them acting like newly grafted symbiotic parasites, their bond growing more intractable over time as their financial and political self-interest aligns with their perspectives. One of these bugs is bigger and stronger than the other, and I’m not sure media types have yet clued in to the fact that it ain’t them.
So what, am I going to trust this guy when he wants to expand regulatory powers? Why? Does this government not have better things to do; like fix a payroll system, perhaps? Or replace some ships and airplanes?
Can we at least nail the governmental basics before we try to save democracy via the CRTC?
You know, the surest sign of an adequate-but-middling intelligence is hubris. Fear anyone who possesses an unshakeable assurance that there is no problem that he is not qualified to handle.
Sometimes a little self doubt is a virtue.
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I think a lot of this drive is to protect the livelihood of Canadian content producers dependent on government-mandated content. There aren’t many of them, but they know how to grab attention and make the government feel the pain if they don’t get what they want. It’s pathetic how the current obsession with political micro-targeting has magnified the influence of small groups at the expense of the overall population. We all have to pay a rent for content we don’t want to placate a group of people working in an uncompetitive sector because they’re clustered in politically-important Liberal ridings. The government was reluctant to impose travel restrictions on India because they were afraid of alienating South Asian voters. The government won’t take a hard line on Chinese belligerence because a generation of Liberal politicians have built a lucrative business around consulting. We put up with higher dairy prices, crappy cheese, and weirdly hard butter because a small number of dairy farmers has managed to exert disproportionate influence over a few key ridings. You could make a case that we need to make these compromises for national unity, but mostly it seems to be a case of concentrated benefit and diffused cost.
When you peel away the government's disingenuous posturing around "reigning in the tech giants", a huge part of what they want to do - but are afraid to openly admit - is expand the Cancon regime to algorithmically curated social media feeds. They want to amplify content deemed Canadian at the expense of everything else.
The real prize is something like: every Canadian's TikTok feed should include at least 30% of videos set to Canadian background music (along with mandatory royalties paid out to Canadian artists). Or at least 30% of YouTube video recommendations shown in Canada to be Canadian content. And so on.
There's very little chance content will be removed if it's not deemed Canadian, but it doesn't have to. That's why C-10 is so very shrewd: it recognizes that on the internet, you don't (and can't) regulate the supply of content. The real impact is in regulating demand by targeting intermediaries. No casual (or pro/semi-pro) YouTuber need be classified a "broadcaster" to feel the vague, open-ended hand of this bill. By artificially promoting/suppressing platform demand for their content (which inevitably affects their ability to monetize), you indirectly and invisibly regulate the individual's behaviour.
The government is doing a piss-poor job saying so, and you would never know it looking at either the law or the rhetoric, but C-10 isn't trying to go after our right to say anything; it does an end-run by instead regulating the means by which we're heard.
Yet as is tradition, they're asking us to take them at their word while arming themselves with an extremely vague, open-ended legislative tool without putting in the work to articulate a vision that motivates or justifies this expansion of power. They seem to not think it's unnecessary to consider or discuss the unintended consequences of "supporting Canadian culture", and that we should just trust they *and all future governments* will carefully use the capability they're asking for in good faith.
Put another way: they're opening a Pandora's box of issues on freedom of expression and regulatory overreach, all so that 30% of our TikTok feeds will be set to Nickelback.