Canada's government seems determined to shed the country's reputation as a liberal democracy that values civil liberties. The Trudeau cabinet's move earlier in 2022 to financially isolate critics of its restrictive pandemic policies were more than a little chilling. Now several years of constant effort to tame the give-and-take of the internet culminate in legislation that seeks to bring much online speech under state control.
At issue at the moment are actually two bills, C-11 and C-18. C-18 is similar to an earlier Australian law that requires digital platforms to pay for links to news articles. That law resulted in a negotiated compromise after Facebook and other outfits blocked links to Australian news sources. With the tech giants following a similar playbook up north, expect parallel results.
Of greater concern is C-11, which purports to further the government's long-time obsession with promoting Canadian-generated content (known as CanCon) without regard to audience preferences.
"The Act plays an important role in supporting Canada's cultural industries and ensuring Canadian content is available and accessible," insists the Minister of Justice's required statement about the bill. "The Bill would provide the Commission with new powers to regulate online services, and update the Commission's regulatory powers as they relate to traditional broadcasters."
Critics say it goes too far in extending the authority of the Canadian Radio-television and Telecommunications Commission over much online content, no matter what officials claim.
"Under Bill C-11, all platforms hosting audiovisual content that are not specifically excluded must make financial contributions to producing officially recognized 'CanCon'—currently defined by a 1980s-era points system built around legacy media broadcast media," explains OpenMedia, which favors changes in the legislation. "Under Bill C-11 platforms must also make CanCon 'discoverable' by filling our feeds and search results with a mandatory quota of official CanCon content, or face stiff financial penalties from the CRTC."
That raises concerns across the board, but especially for small content producers with limited resources.
"The widespread concern over Bill C-11 has largely focused on the potential CRTC regulation of user content. Despite repeated assurances from the government that 'users are out, platforms are in', the reality is that the bill kept the door open to regulating such content," Michael Geist, a law professor at the University of Ottawa, pointed out earlier this month. "The language in the bill is clear: Section 4.2 grants the CRTC the power to establish regulations on programs (which includes audio and audiovisual content by users). The provision identifies three considerations for the Commission, most notably if the program 'directly or indirectly generates revenues.' The revenue generation provision is what led many digital creators to argue they were caught by the bill and for TikTok to conclude that any video with music would also fall within the ambit of the legislation."
Federal officials did little to soothe concerns by calling for investigations of opponents of the legislation. Then CRTC Chair Ian Scott tried to calm critics by assuring them that "we're not interested in individual uploaded content."
"Indeed, and yet that is the clear language of the act," responded Sen. Paula Simons, an independent representing Alberta.
Senators proposed amendments to exclude content generated by individuals who don't have the resources to comply with intrusive red tape. But there's no guarantee the changes will be adopted. Even the amendments leave a regulatory morass to be navigated by the public.
"Bill C-11 could result in an outflow of talent from the Canadian market," reports The Hub's Geoff Russ. "At least one prominent Canadian YouTuber who runs the popular channel SomeOrdinaryGamers has said they may have to leave Canada if the bill passes without changes."
And the concerns don't stop there.
"Justin Trudeau's government is seizing control of the internet and granting itself sweeping new powers that turn its communications regulator into a political puppet," cautions Peter Menzies, former vice-chair of the CRTC and now a senior fellow with the Macdonald-Laurier Institute. He quotes Len St-Aubin, formerly director general of telecommunications policy with the federal government, as saying, "whether you're one of Canada's YouTube stars like Skyship Entertainment, a broadcaster like CBC and Global, or a major streamer like Disney and Netflix, cabinet will have the power to tell the CRTC how to regulate you … For Canadians, that opens the door to state-controlled media."
State-controlled media seems a long way from nationalistic legislation supposedly crafted to promote domestic media at the expense of content produced beyond the country's borders, no matter how ill-considered and clumsy the law might be. But wide-ranging expansion of government power to regulate the media will inherently limit the options available to Canadians.
"Smaller streaming services that aren't able or willing to create CanCon-mandated content or pay into the [Canada Media Fund] may choose to exclude themselves from the Canadian market altogether, blocking us from even accessing their content," notes OpenMedia.
That's likely to reduce Canadians' media options to large companies that have established and cozy relations with the government and that have to stay on the good side of regulators, themselves. Given that regulators have the power to determine what constitutes "Canadian" content, to promote that which receives its approval, and to penalize anybody or anything deemed insufficiently Canadian, getting crosswise with officials could be dangerous.
"Ultimately, Bill C-11 is about government power: through this legislation, the government wants bureaucrats to have the power to decide what is Canadian content online and what is not, even though the government has not presented a roadmap of exactly how the CRTC would make such a determination," warns the Canadian Taxpayers Federation in a report titled "Bill C-11: A Fatally Flawed Gateway to Government Censorship."
If nothing else, Canada's legislators are demonstrating that laws need not directly target dissent and threaten censorship in order to control and suppress speech. Any regulation of expression is a dangerous extension of state power.