Peter Menzies: The CRTC has been given its marching orders
The regulator thinks it can master the entire internet faster than it can renew the CBC's licence.
By: Peter Menzies
In the course of the ongoing battle over regulation of the internet, the role of the CRTC has suddenly and remarkably shifted. Thanks to Bill C-11, it appears as if Canada’s once independent, arms-length, evidence-based, quasi-judicial communications regulator is now nothing more than an arm of government, subject to the whims of those in power.
Admittedly, we’re not quite sure how or when this happened. But happened, it has. To wit: Morghan Fortier, CEO of Skyship Entertainment — one of YouTube’s most popular Canadian programmers — met with government officials to discuss Bill C-11. As of 34,000 Canadians who have successfully built a YouTube-based business outside the closed broadcasting system patrolled by the Canadian Radio-television and Telecommunications Commission (CRTC), Fortier was concerned about the legislation’s impact.
Via Twitter, Fortier noted last fall that officials from the Ministry of Canadian Heritage tried to reassure her by explaining that there was little to fear from the CRTC: there would be no regulation of social media channels like her own. The CRTC would do what it was told to do by the government directly through Heritage and its minister, Pablo Rodriguez.
That, of course, made no sense.
The CRTC is not supposed to take orders from Heritage. It is independent. Sure, it reports through the ministry to Parliament. And yes, the appointment of its chair and commissioners is done by cabinet. And, no, I’m not naïve, but in my close to 10 years with the CRTC, Heritage was very careful to respect the regulator’s independence. The government wouldn’t dream of dictating specifics of the regulator’s mandate, even if it had a preferred outcome. It certainly wouldn’t tell anyone the CRTC to take orders. A policy directive from cabinet? Sure. Those must be considered. But the sort of vital specifics that Bill C-11 was leaving to the CRTC? No way, I thought.
Alas, I was wrong.
Bill C-11 having received royal assent, the CRTC has been granted grossly expanded but not-yet-fully defined powers over all audio and visual content on the internet. Presented as a modernization to the decrepit Broadcasting Act, the legislation sought to subjugate streaming platforms, demanding, for example, Canadian content by regulation. Now it is up to the regulator to decide how, and to whom, to apply these new powers. Among its first steps will be deciding which YouTube channels will be targeted, and for what.
As the CRTC has rolled out its plans, it has paid quite the price for its expansion: the regulator has signalled the surrender of its independence.
Take, for example, this little nugget: Its “Myths and Facts” regarding its new powers were straight-up ministry talking points.
Among them, the CRTC declared that it would not be regulating social media posts and podcasts, even though it has still to define what social media is. This claim is specious and, frankly, insulting to some of those within creative industries who were not heard on the issue. Further, the CRTC clearly mimicked Rodriguez’s outrageous gaslighting by fudging the fact that by regulating the platforms, they will effectively regulate what will posted, and how that content can be presented to Canadians.
The CRTC has been called a lot of things over the years — nanny state, ponderous, timid, paternalistic, and bureaucratic, for sure. But it has never before — and I write this with the greatest respect and a tinge of melancholy — been called out as a bullshitter. Many good people there must be rattled by the way their institution has been impacted by those who chose to state that: “We will only regulate broadcasters, including providers of both traditional broadcasting services and online streaming services.”
Who believes this? Certainly not anyone even remotely aware of how the digital economy works. Any regulation of platforms inevitably leads to proxy regulation of the content on said platforms.
Then there’s the process the CRTC has, with uncharacteristic haste, laid out. There is an overpowering odour of fait accompli, the hell with any need for input from consumers and the newly regulated.
Without numbing your brain with all the details, the CRTC says it will hold nine phases of “consultations” to establish matters such as who it should focus on regulating (those earning $10 million-plus is the suggestion). Three of those phases are already underway, one of which will conclude by June 12. The other two will close for comments June 27. Six more rounds are to follow, all of which the CRTC sees just zipping along so that by late 2024, the money Rodriguez has promised to the nation’s legacy “creative” class will begin to flow.
These consultations have all the feel of a sham. The chair, for instance, stated right out of the gate that the Commission (which has nine voting members) has already decided not to regulate creators of user-generated content, even though it has the power to do so. Given that the CRTC traditionally reaches its positions only after consultations/hearings and an assessment of the evidence gathered from them, this is most unsettling.
I and other observers have come to suspect that the regulator may have already be taking unofficial direction from the Heritage ministry, which has been heavily influenced by lobbyists for the regulated creators who are deeply contemptuous of online creators as mere “cat video" people.
Those who pushed for the Online Streaming Act — unions, guilds and other associations of longstanding — are well-organized and familiar with the ways of the CRTC. Most are fully armed with government-relations people and regulatory lawyers. But there are easily more than 100,000 Canadian commercial creators that have developed their online businesses beyond the reach of the CRTC who are now captured by it. They, it appears, will barely have time to catch their breath, let alone organize and state their cases. Nor will the millions of consumers who, rightly, should have a say.
But they won’t. Just try to wade your way through the crtc.gc.ca barbed wire and you’ll begin to understand how much your opinion as a citizen is valued and how certain it is that many digital creators will become lambs led to the slaughter.
It has been 26 months since the CRTC held its hearing for CBC’s license renewal and the process still isn’t complete. But 18 months from now, it believes it will have conquered the internet — both foreign and domestic — just in time for the next federal election.
Call me skeptical. No, actually, that’s not it. Call me suspicious.
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