The Canadian government is accusing online creators of spreading misinformation on Bill C-11, falsely stating section 2.1 excludes their content.
It seems that that Canadian government just can’t stop lying about Bill C-11. This time, the government is relying on a long ago debunked myth that section 2.1 exempts user generated content. These lies have been used for well over a year now. It was seen as recently as March.
In fact, Freezenet was able to debunk this claim as far back as May of 2021 when this legislation was known as Bill C-10. The new Bill C-11 legislation simply does not change this dynamic.
The Section 2.1 and Section 4.1 dynamic is explicitly written so as to blatantly mislead the public. Every time this lie is perpetrated, it echo’s these same false statements. Whenever someone uses Section 2.1, always pay attention to the wording. That section excludes “people”. Section 4.1 (2) and section 4.2 regulates “content”. It’s an important distinction that renders the “Section 2.1” argument moot.
Recently, we highlighted this section in the most recent version of the lawmaking process:
Non-application — programs on social media service
4.1 (1) This Act does not apply in respect of a program that is uploaded to an online undertaking that provides a social media service by a user of the service for transmission over the Internet and reception by other users of the service.
Application — certain programs(2) Despite subsection (1), this Act applies in respect of a program that is uploaded as described in that subsection if the program
(a) is uploaded to the social media service by the provider of the service or the provider’s affiliate, or by the agent or mandatary of either of them; or
(b) is prescribed by regulations made under section 4.2.Non-application — social media service
(3) This Act does not apply in respect of online undertakings whose broadcasting consists only of programs in respect of which this Act does not apply under this section.
For greater certainty
(4) For greater certainty, this section does not exclude the application of this Act in respect of a program that, except for the fact that it is not uploaded as described in subsection (1), is the same as a program in respect of which this Act does not apply under this section.
Regulations — programs to which this Act applies
4.2 (1) For the purposes of paragraph 4.1(2)(b), the Commission may make regulations prescribing programs in respect of which this Act applies, in a manner that is consistent with freedom of expression.
(emphasis mine)
Obviously, this distinction isn’t simply being made by armchair experts in this debate. CRTC Chair, Ian Scott, confirmed that Bill C-11 includes user generated content. What’s more is the fact that a recent vote confirmed that this whole issue was no oversight. A Green party MP tabled an amendment that would exclude user generated content from the legislation. The Liberals, NDP, and Bloc all voted against this. In that respect, history repeated itself in that regulating user generated content was no accident or oversight. The government is intentionally doing this.
Despite the glaring obvious nature about all of this, the Canadian government still insistent that Canadian’s are too stupid to understand this. Recently, one Liberal MP stood up in the House of Commons and proclaimed that saying that Bill C-11 regulates user generated content is just “misinformation”.
Michael Geist posted a transcript and responded to this:
The government’s decision to ignore the overwhelming majority of testimony on the issue of regulating user content damages the credibility of the committee Bill C-11 review and makes the forthcoming Senate study on the bill even more essential. But the government went beyond just ignoring witness testimony yesterday in the House of Commons. It now claims those views constitute “misinformation.” Tim Louis, a Liberal MP who is on the Standing Committee on Canadian Heritage and sat through hours of testimony, said this in the House of Commons yesterday:
We have heard a lot of misinformation. My colleague just mentioned previously that a lot of emails have come in with a lot of confusion and misinformation, and I believe that is deliberate. I was going to address two of the issues that we might be hearing some of the most misinformation about in the Online Streaming Act. First is the fact that user-generated content is excluded. People ask where that is in the legislation. The bill explicitly excludes all user-generated content in social media platforms and streaming services. I will read the subsection. Subsection 2.1 of Bill C-11 states:
A person who uses a social media service to upload programs for transmission over the Internet and reception by other users of the service – and who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them – does not, by the fact of that use, carry on a broadcasting undertaking for the purposes of this Act.
In plain language, that means that users, even digital-first creators with millions of subscribers, are not broadcasters and therefore they will not face any obligations under the act. Any suggestions otherwise are simply untrue.
The effort to conflate regulation of users with regulating their content has been ongoing for months. It has been misleading for months. But the government enters a danger zone when it labels the concerns raised by one-third of the witnesses before committee as “misinformation.” It is not and the risks associated with the label within political debate are enormous. There are members of the government’s online harms panel calling for new regulations on “misleading political communications”. When government MPs call the majority of expert testimony and analysis – corroborated by its own regulator – misinformation, it creates risks to freedom of expression that cannot be ignored.
This past week was a bad week for democratic governance and Bill C-11. The decision to race through over 100 amendments without public disclosure or debate ran counter to basic democratic norms as the public will never know what changes were proposed in those secret amendments. Now government MPs are resorting to claims of misinformation for testimony they heard directly from one-third of witnesses. The harm that causes will last long after some extra Netflix money is added to the Canadian system.
Currently, there is a good chance that this legislation stalls out before the Summer break. This will mean that Canadian creators will have a few months of reprieve for now. Still, such a victory will only add time to the clock. As soon as the Summer break is over, this legislation is basically going full steam ahead. Senate members have said that they aren’t going to be pressured to rush through their study of this legislation, so that may yet buy time. Still, it’s unlikely that this legislation is going to be fully stopped given the current stability of this government.
So, where does that leave us? The courts. In our opinion, the courts are the best hope that this unconstitutional law gets struck down (or, at least, have the provisions that regulates user generated content struck down). There is obvious constitutional questions involved here. One question that might offer some difficulty is whether or not the courts will see the unconstitutional nature of the legislation or if the court will need to see someone actively being suppressed by the system before it is considered unconstitutional. If the latter is what is needed, it really won’t take long to find a slate of people having their voices actively suppressed given how actively anti-competitive the system currently is.
At any rate, it really makes ones head shake when one thinks how the government still thinks that this lie still works these days. Bill C-11 regulates user generated content, end of story. The music industry, whether major record labels or the independent labels not only understands this, but is now realizing that they are about to become collateral damage in all of this in the process. It would be a surprise if the whole industry doesn’t have a problem with that. It’s weird to think that the Canadian government hasn’t come up with new material to defend the legislation, but that may be because they have no way of really defending this in the first place. So, the only option left is to just recycle the same lie over and over again, no matter how ridiculous they look doing it.
Drew Wilson on Twitter: @icecube85 and Facebook.
