After repeated denials, the CRTC has released a policy direction on the Online Streaming Act confirming that algorithm manipulation is in.
A major sticking point about the Online Streaming Act (formerly Bill C-11) was that it manipulates algorithms. This in an effort to control what the platforms can recommend to users as it works on downranking user generated content in favour of government approved speech. The Canadian government knew this is hugely controversial because this does amount to an unconstitutional overreach on freedom of expression online in Canada. So, the government, the CRTC, and lobbyists pushing this terrible law lied about this aspect. They denied that the new law is about manipulating algorithms, but rather, it manipulates algorithms. I said supporters lied about the law, not that they were good at lying about it.
In June of last year, the double-speak ultimately came crashing down when then CRTC Chair, Ian Scott, confirmed that the legislation was about manipulating algorithms among other things. This admission angered lawmakers because it became a rare moment of truth from those pushing for this law (and the CRTC was pushing for this law as well because they were salivating over the idea of controlling speech and the internet in new ways). Scott’s admission boiled down to that the legislation would allow them to control the outcomes of those algorithms. The CRTC gets to set out what outcomes they want to see and it is up to the platforms to manipulate those algorithms to achieve those government approved results.
In the months since, lawmakers and the government tried to sell the story that the chair simply misspoke. One senator described those comments as ‘muddying the waters’. It was a massive campaign of, essentially, Scott didn’t mean what he said and that the legislation doesn’t really manipulate algorithms despite it being clear in the text of the bill itself that it does.
In response, the CRTC was brought in to the Senate hearings so he could “clarify” his points. During the hearing, Scott, again, engaged in double speak and resorted to misleading statements as his get out of jail free card. He basically said that the legislation doesn’t manipulate algorithms because the law forbids the regulator from demanding the use of a specific algorithm. As I noted at the time, that was not the point of contention. The point of contention is that the CRTC demands specific outcomes of those algorithms, not that the CRTC could or couldn’t give the platforms specific code and ordered to use that code for the algorithms. When pushed to clarify, Scott simply said that there’s lots of ways of promoting Canadian content and manipulating algorithms is just one tool in the tool kit (again, not the point of contention. It’s the fact that the CRTC has the power at all to manipulate the outcomes of those algorithms that’s the point of contention).
So, while Scott tried dodging the issue by using slippery language to worm his way out of that jam, the answers he ultimately provided during the hearing was far from satisfactory.
After the law passed, allowing the CRTC free reign to ruin people’s livelihoods, the CRTC released a so-called “fact sheet“. In it, they basically said that the CRTC is not manipulating algorithms, but rather, they want to “encourage innovation”. In other words, they aren’t manipulating the algorithms, they are manipulating algorithms. To the surprise of no one, that answer was not satisfactory as the CRTC is, once again, trying to fake clarity by, once again, using slippery language to worm their way out of the jam they find themselves in.
Now, we are learning that a policy direction was released by the CRTC is confirming that algorithms will be manipulated:
Discoverability and showcasing
6. The Commission is directed to consider both established and emerging means of discoverability and showcasing to promote a wide range of Canadian programming. In making regulations or imposing conditions in respect of discoverability and showcasing requirements, the Commission is directed to prioritize outcome-based regulations and conditions that minimize the need for broadcasting undertakings to make changes to their computer algorithms that impact the presentation of programs.
(emphasis mine)
Minimizing the use and never using this are two very different things. Still, this does represent quite a walk back from their earlier talking points. It ultimately confirms what critics have been pointing out all along: that this is about manipulating algorithms to ensure discoverability of government approved speech over everyone else. The policy direction goes further with this:
Flexible and adaptable regulatory framework
8. To support flexibility and adaptability in its regulatory framework, the Commission is directed to:
(a) where appropriate, minimize the regulatory burden on the Canadian broadcasting system;
(b) avoid disruptions to programs and undertakings to which the Act does not apply;
(c) respect audience choice and, where possible, increase the options available;
(d) where appropriate, use tools that are based on incentives and outcomes;
(e) where appropriate, use digital tools and solutions;
(f) consider other Canadian or foreign regulatory regimes that affect online undertakings; and
(g) where appropriate, foster collaboration between Canadian and foreign broadcasting undertakings.
(emphasis mine)
This is basically government speak for “we’re making you do this”.
The policy direction does try to muddy the waters a bit with this:
Social media creators and video games
10. The Commission is directed not to impose regulatory requirements on:
(a) online undertakings in respect of the programs of social media creators, including podcasts; and
(b) broadcasting undertakings in respect of the transmission of video games.Regulations — section 4.2 of the Act
11. In exercising its powers under section 4.2 of the Act, the Commission is directed to set out clear, objective and readily ascertainable criteria, including criteria that ensure that the Act only applies in respect of programs that have been broadcast, in whole or in significant part, by a broadcasting undertaking that is required to be carried on under a licence or that is required to be registered with the Commission but does not provide a social media service.
Section 4.2 is hugely controversial in that it’s another key component in regulating speech. This section sounds reassuring at first when it suggests that the CRTC won’t impose regulatory requirements on social media creators, yet, later on, it says that regulations are to be specific for broadcast programs. Then, it says that only social media platforms that strictly perform a social media service would be exempt from Section 4.2. The second you add any context to this from a technological standpoint, the policy direction quickly falls apart.
So, for instance, lets say a traditional outlet posts something on a given platform. That content would be regulated as government approved speech (ala “Cancon”). So, in response, the platform would be required to promote that through their algorithms. User generated content that is already on that platform will be exempt. As a result, that commercial broadcasters content would then get promoted over that user generated content. That action would perfectly fit with this policy direction, bringing us all the way back to square one.
Let’s use another example: YouTube. YouTube clearly showcases user generated content. However, the CRTC is very specific about their wording. They only touch platforms that strictly do not provide a “social media service”. YouTube, however, also provides a commercial service for so-called “professional” content (a term that drives me nuts too). As a result, YouTube would get hit with these regulations anyway. Here’s another question: What if a user on another platform uses an excerpt from a traditional broadcast for their content? At that point, does the platform fall into regulation or not as per the above excerpt? Not really clear. You can see just how the specific word choice means that slippery language is, once again, employed.
Some creators out there might get their hopes up when they see this:
Regulations and orders — section 11.1 of the Act
12. In exercising its powers under section 11.1 of the Act, the Commission is directed to:
[…]
(k) support activities and services — including training and development activities, conferences, the activities of organizations that represent creators and the development of digital and open-source tools and solutions — that support and promote Canadian creators of audio or audio-visual programs for broadcasting by broadcasting undertakings, including social media creators.
Although the idea of programs to help social media creators sounds great, as we’ve already seen with the Canada Media Fund that’s not exactly something that creators will end up being able to take advantage of. For one, out of the hundreds of millions the program is expecting to rake in, the program only gives out a paltry $500,000 for their entire online creator program. to make matters worse, they set the bar to support those creators so high, that it doesn’t make any sense that anyone would ever want to take advantage of those programs in the first place. The requirements filter out pretty much any potential online creator and sets additional criteria to filter out anyone who manages to work their way through the system anyway. Yeah, the CRTC is encouraging such programs, but you’ll never be reasonably expected to take advantage of such programs.
To make matters worse, the CRTC also notes this:
Determination of Canadian programming
13. In its determination of what constitutes Canadian programming, the Commission is directed to:
(a) consult Canadians, the creative and production sectors and other interested parties;
(b) support Canadians holding a broad range of key creative positions, in particular those with a high degree of creative control or visibility;
(c) support Canadian ownership of intellectual property;
(d) recognize the distinctions between broadcasting undertakings that distribute audio programs and those that distribute audio-visual programming;
(e) recognize that the Act applies to foreign broadcasting undertakings;
(f) consider, as it relates to audio-visual programming, the vital role of Canadian independent producers and of the Canadian creative resources that are being used by both Canadian and foreign broadcasting undertakings; and
(g) consider whether its determination of what constitutes a Canadian program complements other Canadian content policies that are applicable to the Canadian broadcasting system, including those pertaining to audio-visual tax credits or government funding.
(emphasis mine)
This should be very worrying to Canadians. The CRTC is pushing the idea that the Canadian laws apply globally. Earlier this year, the CRTC was advancing the idea that discoverability requirements should be applied globally. So, if platforms like TikTok and YouTube are being required to forcibly promote government certified content to a global audience, that is where the Online Streaming Act goes from undermining creators online reach to wiping out Canadian’s access to platforms completely. It repeats the catastrophe that is currently unfolding with the Online News Act where the loss of access to platforms for creators is complete. Even worse, users will lose access to those platforms as well, cutting Canada off from some of the biggest successes of the digital revolution. Platforms would easily rather block Canada altogether than to comply with regulatory requirements that is so insanely onerous.
Another lingering question in all of this is whether or not the Act actually passes constitutional muster. The manipulation of algorithms alone is certainly enough to open the door to a constitutional challenge due to its obvious negative implications of freedom of expression. The real question is how many angles will the CRTC open the Act up to a constitutional challenge. Further, who would ultimately bring forward such a lawsuit? After all, creators who are negatively impacted by this alone could theoretically challenge the law on these grounds. The platforms certainly have the financial resources and motivation to also challenge this law. Further, various civil rights organizations could certainly mount a legal challenge as well.
Either way, it looks like we are still seeing that double-speak from the CRTC. Credit where credit is due, they are at least finding ways of making the story they are trying to sell more convincing as the process moves ahead. Still, this is just further confirmation that the consultation process is total theatre. The outcome was pre-determined for the most part, but ultimately just a box ticking exercise for the regulator as opposed to a serious attempt to listen to the public on this important matter.
(Via Fagstein)
Drew Wilson on Twitter: @icecube85 and Facebook.
