Bill C-11 has passed the third and final reading in the Senate. Pablo Rodriguez has said that he will reject improvements to the bill.
Disaster has struck as the Canadian Senate, in the third reading, passed Bill C-11 43-15. The legislation poses significant risk to freedom of expression as it empowers the CRTC to decide what content should be promoted and what should be demoted on platforms, taking these decisions out of both the users hands and the platforms themselves. What’s more is the fact that the legislation not only invites significant litigation domestically for obvious violations of the Canadian Charter of Rights and Freedom, but also international trade sanctions from the US for discriminating against US businesses via Article 19.4 of CUSMA. This over top of the fact that it pulls steals from platforms and siphons it to large media conglomerates who have little to nothing to do with the success of these platforms.
The economic implications of this are obvious. One of the biggest growth cultural sectors are online content producers who have been seeing revenues go up. Canadian creators have been widely regarded as some of the biggest cultural exporters in the world. The legislation kneecaps these creators. Not only will their potential reach be hamstrung by Bill C-11, but also revenue as well. The spinoff implications is that investment in Canada could start to dry up as international partners will see a government at war with its own content creators.
The main beneficiaries, of course, are members of sunsetting and legacy industries. Television and radio will generally see a bunch of additional bailout money. This will further offer incentives to refuse to innovate and carry on their broken business models as business as usual. As content creators from other countries will continue to grow this industry, Canada will gradually get left further and further behind. As whole businesses are formed in other countries from things like YouTube channels, Twitch streams, TikTok’s, and others, Canadian creators will continue to struggle to keep themselves afloat.
All of this brings us to one conclusion: The Canadian government has seen the future and rejected it in favour of trying to turn back the hands of time and maintain the status quo of the past. The casualties of this war on the internet are Canadian innovators, businesses, and entrepreneurs who have come up with business plans that are forward looking. This along with audiences who wonder where all the good content went and why they are stuck with crummy re-airings of CSI shows and a smattering of shows that are not interesting and worth consuming.
While things seemed hopeless throughout the process, there was a small ray of hope. During the committee study, Senators Paula Simons and Julie Miville-Dechêne passed an amendment that fixes the biggest problem. Section 4.2 explicitly laid out that user generated content would be regulated. Supporters tried to pretend that it meant something else entirely and encouraged people not to interpret the actual meaning of that section. So, the Senators managed to pass an amendment that took both positions of this contentious issue and re-wrote the whole section to take both sides of the debate at face value. The amendment, obviously, doesn’t fix every issue, but the biggest issue appeared to be addressed.
Of course, the amendment faced significant push back from Bill C-11 supporters. Senator Dennis Dawson said immediately after the amendment was passed that the amendment is a “loophole” for tech companies. He said, “The proposed amendment would create loopholes. I’m repeating what Senator Gold said on earlier amendments today, that the amendment would create loopholes for social media platforms to avoid contributing to Canadian culture, which, as you know, is the objective of the bill.”
His stance has since softened and, during third reading, said that he will let the amendment slide, but said that it won’t do anything to satisfy critics. So, basically, begrudgingly allowing it for now.
During the Senate Hearings, Heritage Minister, Pablo Rodriguez, said that he was open to amendments, but couldn’t say for sure whether he would support amendments if they are not tabled. It was basically an attempt to pretend that he is open to dialogue, but as long time observers know, Rodriguez actions are anything but allowing compromise on this bill. Upon word that the bill passed the Senate and is going to be headed back to the House of Commons, Rodriguez commented that he would reject changes to the legislation. From Michael Geist:
Yesterday’s interview between Rodriguez and the excellent Vassy Kapelos was first time the Minister has faced an extended interview on the bill with a tough journalist who raised the right questions. Rodriguez had few answers beyond tired, largely discredited talking points. When pressed on concerns from the production sector about a provision in the bill that treats Canadian and foreign streamers differently (a provision that is largely driven by Canada’s trade obligations), he suggested that the industry should be happy that it is getting something and later implausibly hinted that he could direct the CRTC to address the issue (he plainly cannot use a policy directive to violate CUSMA). When the user content regulations concerns were raised, he went back to denying what the former CRTC chair, multiple independent senators, and thousands of creators have concluded, namely that prior to the Senate amendment the bill would open the door to regulating user content.
But worse than the tired talking points, the Rodriguez interview was simply dripping with hypocrisy:
- How else to explain how a minister could congratulate Senators for an extensive study of a bill that brought out over a hundred witnesses, including indigenous voices who were excluded in the House, but then promise to reject anything that improves the bill?
- How else to explain claims of openness to change, but then likely reject the work of independent Senators who crafted compromise language consistent with the minister’s own stated objectives?
- How else to explain his insistence that he supports creators when his office has intimidated indigenous creators and the concerns of thousands are summarily dismissed as misinformation?
- How else to explain the determination to ignore the words of Senator David Adams Richards, an acclaimed author appointed to the Senate by his own government?
- How else to explain that if he is correct that Bill C-11 does not include user content regulation, then the Simons/Miville-Duchêne amendment does not change anything and it should fall into his category of amendments with zero impact and receive approval?
Bill C-11 now heads back to the House of Commons, where Canadians will await the government’s response to the changes. If it follows through on Rodriguez’s statement that any changes that have an impact on the bill will be rejected and the NDP or Bloc support the approach, it will be up to the Senate to stand its ground and reaffirm the changes it just overwhelmingly supported. For the Senate to simply accept a blanket rejection would be to admit that genuine efforts to improve legislation are just theatre, leaving stakeholders and Senators looking like chumps in the face of government gaslighting with little interest in good governance and improving its demonstrably flawed legislation.
Another outstanding issue worth noting is the fact that the legislation includes an age verification requirement. The provision isn’t well worded and contains little to no supporting language that clarifies what it requires. It just says this:
(r.1) online undertakings shall implement methods such as age-verification methods to prevent children from accessing programs on the Internet that are devoted to depicting, for a sexual purpose, explicit sexual activity;
The hope for many digital rights advocates is that this gets removed as it represents a major concern about privacy and potentially demanding that users hand over even more personal information to online services. It’s hard to say where such a provision would go, but we do know for a fact that it isn’t anywhere good. After all, it was quietly inserted with virtually no debate or thought.
Moreover, there is the international trade issues as Bill C-11 is an obvious violation of Article 19.4 of CUSMA. Already, the US is going through the process of creating a USMCA dispute panel over dairy products, proving that the threats they issued over Bill C-11, Bill C-18, and the Digital Services Tax (warning 1, warning 2, warning 3, warning 4, bi-partisan letter from top US Senators to the USTR) were by no means idle threats. So far, though, it looks like the Canadian government has basically chosen to ignore all of these warnings and forge ahead anyway, damn the consequences.
At any rate, the latest language from Rodriguez suggests that even the single fix to the legislation could still be under threat. If it comes back to the House of Commons and the language is rejected, that would mean that there is a difference between the Senate and the House of Commons. More fundamentally, it would also act as proof that the whole point of the legislation was to regulate user generated content. As Geist pointed out, it will be up to the Senate to stand their ground on this issue or risk a significant hit to their reputation as the chamber of “sober second thought”. In the process, it would mean that the Senate has thrown an entire generation of content creators under the bus in the process.
What happens next is reconciling to the two versions of the bill. This is, admittedly, a process I have little experience covering. Bills I have extensively covered throughout my career have never made it this far, so it could be just as much of a learning experience as it is with many others at this point. One thing is for sure, though, it stands to reason that anxiety over the legislation stands to rise as the future of roughly 100,000 creators are currently on the line. The hope is that the Section 4.2 fix will, at least, survive.
Drew Wilson on Twitter: @icecube85 and Facebook.
