Why the Guilbeault Amendment to Bill C-10 Makes CRTC Regulation of User Generated Content “Crystal Clear”
For the past week, Canadian Heritage Minister Steven Guilbeault has promised to address widespread concern over Bill C-10, the Broadcasting Act reform bill. After the issue emerged as an increasingly prominent part of House of Commons debate, Guilbeault stated;
we also want to make sure that the content that people upload on social media won’t be considered as programming under the act and that it won’t be regulated by the CRTC. And that’s why we will be bringing forward another amendment that will make this crystal clear.
That statement was repeated on Wednesday by Prime Minister Justin Trudeau in the House of Commons:
We have clearly indicated that this is not about individual users or about what Canadians themselves publish online. As the Minister of Canadian Heritage said, we will propose an amendment to make this crystal clear to us and to everyone else.
Last night at a somewhat strange Canadian Heritage committee meeting, Liberal MP Julie Dabrusin brought forward the promised amendment. Only rather than confirming that the content that people upload on social media won’t be considered as programming under the Broadcasting Act, it does precisely the opposite. First, the new amendment does not restore the Section 4.1 exception that had been touted as a safeguard against regulating user generated content. Second, not only does the regulation of user generated content remain in place, but the amendment confirms the CRTC regulatory powers, including a new power specifically designed for social media. In other words, rather than backing down in the face of public criticism, the government is doubling down on its Internet regulation plans.
The amendment (G-11.1) adds to the list of CRTC conditions that it can impose on Internet companies by stating:
9.1 (1) The Commission may, in furtherance of its objects, make orders imposing conditions on the carrying 30 on of broadcasting undertakings that the Commission considers appropriate for the implementation of the broadcasting policy set out in subsection 3(1), including conditions respecting:
(i.1) in relation to online undertakings that provide a social media service, the discoverability of Canadian creators of programs”;
The amendments establish some limitations on regulation that restrict what the CRTC can do with regard to user generated content, but the overall approach is indeed “crystal clear.” User generated content is subject to CRTC regulation under Bill C-10 with the result that the content of millions of Canadians’ feeds on TikTok, Instagram, and Youtube will now be CRTC approved as it establishes conditions to mandate discoverability of Canadian content.
Regulating user generated content in this way will make Canada an outlier with respect to Internet regulation. As I discussed in an earlier post, even the European Union, which has extensive regulations, ensures that video sharing platforms are not subject to regulatory requirements to prioritize some user generated content over others. There is good reason to not regulate user generated content in this manner, as it implicates freedom of expression and raises a host of questions about how companies will identify what constitutes Canadian content, whether Canadians will be required to surrender more personal information to big tech companies as part of the new rules, and what requirements will be established for individual feeds.
In fact, Canadian Heritage officials removed any doubt about the implications of the amendment, telling MPs:
The amendment, what it would do, is in Section 9.1 of the bill, it would add an additional order making power for the CRTC that with respect to online undertakings that provide a social media service, that order making power would only be with respect to a social media service. It would give the CRTC the ability to make orders with respect to the discoverability of Canadian creators’ program.
Officials reiterated the effect in response to another MP question:
As we discussed beforehand, Section 4.1 was intended to exclude programming that was uploaded on social media by someone who isn’t affiliated to that social media. The motion that was tabled by Ms. Dabrusin defines what regulatory tools under 9.1 can be used vis-a-vis social media.
Guilbeault and the government promised to remove regulation of user generated content by the CRTC. Instead, yesterday it effectively confirmed that denials about the effects of the bill were inaccurate and left a regulatory framework in place. As Navneet Alang notes in the Toronto Star in a column critical of Facebook, on social media the right to speak also includes a right to be amplified and free to have an audience. That means we should be requiring greater algorithmic transparency from Internet companies, not substituting their choices for those crafted through government regulation.
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