Bill C-11 Raising Serious Doubts About CRTC’s Independence From Feds

by EditorT

Minister of Canadian Heritage Pablo Rodriguez rises during Question Period in the House of Commons on Parliament Hill in Ottawa on June 16, 2022. (Screenshot from ParlVu)

Potential legislation opens door for regulating individual online content creators, critics say

By Rahul Vaidyanath

News Analysis

A bill to ostensibly protect and promote Canadian online content has long been under fire for becoming a potential government censorship tool. Amid mounting criticism, another issue being raised with the proposed legislation is the broadcast regulator’s perceived lack of independence from cabinet. 

[Bill] C-11 turns basically an independent, arm’s-length, respected regulator into a branch of government. And I feel sorry for the commissioners who were there and I feel sorry for the staff there because they have been undercut by this government in a remarkable fashion,” Peter Menzies, a Macdonald-Laurier Institute senior fellow and former vice-chair of the Canadian Radio-television and Telecommunications Commission (CRTC), told The Epoch Times.

Known as the “Online Streaming Act”—also widely dubbed the “online censorship bill”—it’s currently being examined by the Standing Senate Committee on Transport and Communications. The proposed bill aims to amend the Broadcasting Act and other acts. 

“One of the really chilling parts of C-11 … is the extent to which it grants cabinet sweeping powers to overrule the CRTC on decisions. It basically replaces the CRTC with cabinet for decisions,” Menzies said.

He pointed to the controversial subsection 7(7) as the provision that empowers cabinet to overrule CRTC verdicts. Senators Donna Dasko and Pamela Wallin also had similar concerns about the subsection and the CRTC’s independence.

Dasko raised the issue about the subsection at the Nov. 16 Senate committee hearing and asked CRTC chairman and CEO Ian Scott if he would “send us an amendment that you think would be the proper relationship between a regulator and a government.”

Scott agreed, and when asked by Wallin about the CRTC’s independence from cabinet, he was adamant that “we are arm’s length and independent.”

Later on the same day, the CRTC provided a written response to the Senate committee on the subject of “CRTC Independence.” 

“Subsection 7(7) would appear to deviate from the purpose of the policy direction power set out in subsection 7(1) of the Act,” the CRTC response stated.

“Subsection 7(7), as proposed, could be interpreted to provide the GiC [cabinet] with the ability to intervene in the minutiae of the CRTC’s work,” it said, and went on to recommend that the subsection be deleted.

At the subsequent Nov. 22 committee hearing, Minister of Canadian Heritage Pablo Rodriguez, in response to a query from Dasko, disagreed that the subsection gives more power to cabinet.

“I don’t see any new power given to cabinet. It’s just for greater certainty,” he replied.

Multiple Issues

Senators also raised concerns about the use of algorithms to manipulate content that platforms show users and the possibility that the CRTC will crack down on individual digital content creators.

In response, both Rodriguez and Scott told senators that the CRTC has no intention of regulating individuals.

Rodriguez repeatedly said the bill is not about social media creators but focuses only on commercial content, and Scott said the CRTC is focused on regulating digital platforms. 

Giving the example of Facebook broadcasting live events, Scott said this is different from the situation of an individual uploading content.

The senate committee’s chair Leo Housakos pointed out to Scott that the CRTC has, in fact, already exercised authority over user-generated content, citing its decision in June to sanction Société Radio-Canada for using the “N-word” when referencing a book title during a broadcast some two years ago. That matter is now before the courts.

University of Ottawa professor Michael Geist, the Canada research chair in internet and e-commerce law, slammed Scott and the CRTC in a tweet after the Nov. 16 Senate hearing, saying, “No one can possibly have confidence in the CRTC right now.”

And despite the CRTC saying it won’t regulate individual user content, Geist noted that the commission, in a follow-up brief to the committee explaining its position on social media services, stated that Bill C-11 does empower the CRTC “with the discretion to include certain user-uploaded programs within the scope of the Act, by regulation.”

Other issues levelled at the proposed legislation are the lack of public hearings, transparency, and clarity.

‘Lawful but Awful’

Menzies says “a lot of this legislation is based on false premises” since “the first thing you’d have to do is show that somehow Canadian content isn’t already discoverable.”

There is also a bit of the issue of trying to fit a square peg into a round hole. Menzies remarked that the government owns the airwaves for radio and television but the internet is a different story.

“The internet is not a Crown asset,” Menzies said, while “the government is taking a system that the Broadcasting Act was created for, that had a certain technological foundation, and they’re trying to apply it to the internet.” 

What’s also raising concerns about censorship is the authorities’ promotion of ideals such as online safety or inclusivity, which are subjective in nature. 

The G20 Bali Leaders’ Declaration, issued Nov. 16, included the following wording: “We recognize the importance of policies to create an enabling, inclusive, open, fair and non-discriminatory digital economy … while addressing the challenges, related to … online safety. 

“We acknowledge the importance to counter disinformation campaigns. … We will advance a more inclusive, human-centric, empowering, and sustainable digital transformation.”

Menzies commented, “These are things that sound very sensible. but they can also be things that can be very dangerous when governments are controlling how we choose to speak and communicate with each other.”

Canada already has laws to protect against harmful online content such as hate speech and child pornography, he said.

“It’s important to have criminal laws with high bars that work within the Charter of Rights and Freedoms to control these things. But it makes me incredibly nervous when people start snooping into ‘lawful but awful,’ because awful is a subjective, not an objective measure. It’s just literally not. So that’s where government involvement concerns me.”

Making Platforms Pay

The heritage minister reiterated that the government is open for discussion and will study the substantive amendments to the bill Housakos said are needed when they are available.

Rodriguez told senators that Bill C-11 is about digital platforms paying their fair share and promoting Canadian culture in the digital age.

“At this time, they don’t have any obligations. So I’ll repeat it and I think we all agree on this: Everybody must contribute to our culture,” he said.

“If you benefit from the system, then you must contribute to the system. It is that simple.”

He mentioned how out-of-date the Broadcasting Act has become and said status quo is no longer an option for the government.


Rahul Vaidyanath

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