The Conservative Election Platform: Freedom of Expression Commitment Tainted By Support for Payments for Links, Restrictions on Fair Dealing

The Conservative Party released its election platform yesterday, providing a lengthy document that covers a myriad of policy issues. From a digital policy perspective, there are positions sprinkled throughout the document, covering everything from a new innovation policy (an issue that the Liberals de-emphasized over the past two years and the Conservatives are right to target) to labour rights for gig workers.

On many issues, the reality is the policy platform isn’t all that different from the Liberal government’s approach. Both parties promise to enact digital taxes, address high wireless and Internet costs (the Conservatives pin their hopes on foreign investment, which is unlikely to move the needle), enact platform liability (the Conservatives reference a stronger legal duty to remove illegal content), improve privacy protection (the Conservatives promise tougher rules that the failed Bill C-11), and payment from Internet companies to pay media companies. There is the usual Conservative questions for the CBC and a plan to end media support through the labour tax credit and local journalism initiatives that some will jump on, but the digital policy similarities outweigh the differences. Indeed, if the Liberals had hoped to criticize the Conservatives for being weak on tech companies (as Canadian Heritage Minister Steven Guilbeault frequently claimed), the platform offers few targets.

Where the Conservatives differ is on the issue of freedom of expression. While the Liberals have claimed to be supportive of freedom of expression, their Bill C-10 involved regulating user generated content and the recent online harms consultation has sparked criticism from around the world with its vision of a bureaucratic super-structure to rule on content.  The Conservative platform regularly invokes freedom of expression as a central consideration in the policy development process. For example, its online harms package focuses primarily on enforcing existing criminal laws on illegal speech, noting:

What we do not support are restrictions on legitimate freedom of speech. Free speech, freedom of expression, and a free press are fundamental tenets of Canadian law and Canadian democracy. We will oppose government censorship of material that is not criminal in nature merely because some may find it to be offensive. Consequently, we have opposed Justin Trudeau’s attempt to create a national speech regulator for social media. Unlike the Liberals, we will not use the power of government to censor those we disagree with.

Similarly, its Bill C-10 alternative states that the party will “exempt the content Canadians upload onto social media sites like Facebook, YouTube and Tik Tok from regulation in order to protect free speech.”

These are welcome positions that the Liberals would do well to emulate. Moreover, the Bill C-10 alternative provides a solid approach that strikes a middle ground in a way Guilbeault rejected. It plans to regulate large streaming services with requirements to reinvest a portion of their Canadian revenues in Canadian programming, some of which must be French language programming. Failure to meet the requisite spending requirement would trigger an obligation to contribute the difference to the Canadian Media Fund. User generated content and social media sites would be exempt. The proposal meets the demands of contributing to Canadian production, but encourages investment, rather than simply providing a handout. Further, by limiting the obligations to large streaming services, it avoids the over-broad, regulate everything model of Bill C-10.

While the Conservative alternative to Bill C-10 represents the best of the digital policies in the platform, the media support plans and promise to reform copyright represents the worst. The media support from Internet platforms is largely indistinguishable from the recent Guilbeault consultation, promising a digital media royalty framework that require payments from Google and Facebook based on an arbitration model and a new copyright right for sharing news clips on social media. Yes, the Conservatives are proposing payments for links – frequently termed a link tax – for social media through copyright reform.

If that were not bad enough, the platform also promises to rollback fair dealing, citing support from a 2019 Heritage committee report. That report was discredited with poor process, limited participation, an imbalance of witnesses, and a deliberate decision to ignore evidence. The Industry committee study, which was the authoritative study on copyright reform, included active Conservative party participation and did not recommend new limitations on fair dealing. Neither, for that matter, does the Supreme Court of Canada, which just issued a key decision again affirming user rights. The court recognizes what the Conservatives seemingly don’t, namely that fair dealing is an essential safeguard for freedom of expression.

Given the rest of the platform, the Conservatives could have recommended pro-innovative copyright reforms such as the right to repair to support the agriculture sector, an exception for AI, limitations on digital lock rules, and the repeal of crown copyright. Instead, they bizarrely supports link taxes and restrictive fair dealing, both of which would have a negative impact on the very freedom of expression the platform otherwise supports.

The post The Conservative Election Platform: Freedom of Expression Commitment Tainted By Support for Payments for Links, Restrictions on Fair Dealing appeared first on Michael Geist.

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