Home > Internet > Time to Kill Bill C-10, An Act to Amend the Broadcasting Act

Time to Kill Bill C-10, An Act to Amend the Broadcasting Act

Bill C10, the Broadcasting Act reform bill, has set off a firestorm of controversy. Originally presented as being all about revising the Broadcasting Act to bring online audio and visual streaming media services like Netflix, Crave, Spotify, and so on into its reach, the bill has taken on far wider and worrying prospects.

This is because Bill C10 treats any expression online that is aggregated by the likes of Google’s YouTube, Facebook, Reddit, TikTok, and so forth as if it’s a broadcasting program and should be regulated as such. The bill’s defenders are correct that it does not directly subject individual Canadians to CRTC regulatory oversight. However, through a process akin to alchemy that turns people’s everyday expressions into programs when uploaded to a platform, people’s expressions (content) will become subject to CRTC authority. It also makes “content aggregation” the baseline for defining a broadcaster, similar to how ideas about spectrum scarcity (among other things) were used to justify broadcasting regulation in the 20th Century. The very act of “content aggregation” is then seen to magically transform a platform into a broadcaster. Lastly, all of this would bring digital platforms under the CRTC’s supervision, as if it is already not struggling to meet its mandate given its current resources and leadership.

To be crystal clear, I agree that we need a new generation of digital platform and Internet regulation. In fact, liberal democracies worldwide are actively engaged in efforts to this end. The Liberal Government, in other words, is not alone, although its botched approach is something to behold. Indeed, these efforts by liberal, capitalist democracies are so extensive that my head has been spinning just trying to keep track of them all. To help fix that, Manuel Puppis and I decided last year to maintain a document just to keep track of them all. You can find the list now approaching 100 items here.

I fully support the idea that digital platforms and Internet-based content, applications and services can and should be subject to democratic oversight and rules made by Canadians through legitimate processes versus letting the rules be set unilaterally and unaccountably by global Internet corporations based in the United States or anywhere else. We need a new generation of platform and Internet regulation that tackles the extraordinarily high levels of concentration—in online advertising, app stores, search, social media, online video services, etc.—that now characterize vast swathes of the Internet. In most of those cases, the dominant players are tightening their grip rather than seeing new competition emerge.

Second, we also need strong rules designed to open up and subject the digital platforms’ blackbox technical system to regular regulated audits. We need such rules so that we can “discover” what’s inside the platforms’ blackbox, to shed light on how these complex technical systems work so that we can spot the potential for ‘systemic risks’, and to make sure nothing fishy is going on that could allow the Amazon, Netflix, Facebook, Google, Bell, Rogers, Quebecor, Shaw, Telus, etc. an unfair advantage over those who use the same platforms to offer competitive services, to understand how billing systems work and ensure that 3rd parties offering their wares on these platforms are getting a fair shake (e.g. YouTube and TikTok creators)(Mckelvey, 2020).

Opening the black box is also needed to address a crucial question that has forever defined the relationship between those who own and control communication networks/distribution, on the one side, and set-top boxes, tv services and program rights holders, on the other: who controls the data about individual users/audiences and on what terms to the other parties get a peak of at that data–data that is essential for them to know their audience and craft their wares?

There are excellent discussions about these issues under the guise of “discoverability” (Mckelvey, 2019). Unfortunately, however, the concept of “discoverability” has been hijacked and disfigured in the discussions about C10 to seemingly mean only that the platforms would have to actively take steps to make sure that Canadian content floats to the top of what users see in, for example, search results, their Facebook feed, TikTok list, etc. In other words, they’d have to act like old-school television and radio broadcasters and be required to make sure that a certain proportion of Cancon gets put before our eyes.

To my mind, in cases where platforms do have market power, creators, regulators and everyday people should be able to open the kimono, so to speak, and get a peak inside to see how the Willy Wonka content factories built, owned and run by massive global Internet companies like Google, Facebook, Twitter, TikTok, etc. work. This will help us make sure that all is on the up-and-up, fight online advertising fraud, for example, and that creators get a fair deal and what’s supposed to be coming to them in terms of cold hard cash. Regrettably, Minister Guilbeault and Liberal MPs sent to explain the bill like Julie Dabrusin indicate that rather than what I (or Concordia University’s Fen Mckelvey) would like “discoverability” to be, right now it’s all about getting Cancon in front of more Canadian eyeballs over the Internets.

Third, this also means establishing clear rules of content moderation so that people have a very clear understanding of what kinds of content and expressions will stay up on a platform and those that will be removed or otherwise subject to restrictions, e.g. demonetization. The presumption here would be for “fair carriage”, as it’s being called in Germany, for example, where there is a “presumption of inclusion” for all legal content, applications and services in the search, social media and apps stores of the large platform companies based on the premise that citizens have a positive right to express themselves, and it is the government’s role to ensure that private actors that offer public communication services must respect such rights. This approach allows platforms to moderate their services but limits their scope to do as they please insofar that citizen’s lawful expressions and interactions must stay up, unless a proper and just explanation of why it has been removed, and will stay down, is offered and defensible in court (Ketteman & Tiedeke, 2020, pp. 9-11)

Finally, it means adopting strong data and privacy protection regulation. This approach to regulation would aim to put a stop to the free-for-all in data harvesting that now reigns. As Srinivan (2019) shows, having established their online dominance of social media and search, firms like Facebook and Google have systematically degraded the quality of their service’s commitments to respecting people’s expectations of privacy (also see here).

So, the problem is not that regulating “the Internet” or big platforms, per se, is an assault on free speech and de facto illegitimate, as conservative columnists, the Conservative Party, Conservative MPs, and many others who are fulminating against Bill C10 and the Liberal Government assert. The big platforms already regulate speech, and do so extensively, albeit unaccountably. Markets have also failed insofar that they are already extremely concentrated, and becoming moreso by the day. This reality, in turn, allows the biggest global platforms to impose take-it-or-leave-it conditions on users in terms of data and privacy protection and on creators in terms of who gets paid how much and who gets to see inside the kimono when it comes to the data generated around a YouTube video, for example.  Such things must change.

The problem for me, however, is that while I fully support the idea of regulating the platforms for the reasons just set out, Bill C10 is a failure and should be withdrawn. It is a failure, in turn, because the Liberals and the public servants over at Canadian Heritage in Gatineau seem to have given over the keys to a small and cloistered group of industry trade associations, media industries guilds, think tanks like the Public Policy Forum and lobby groups like Friends of Canadian Broadcasting who have been pushing to have the CRTC regulate Internet services as broadcasting for a quarter-of-a-century.

Here’s a snapshot of that record stretching back to the CRTC’S first decision in 1999 to reject that position:

In the interim two-plus decades, the same interests now trying to use broadcasting as the “model” for platform regulation have also leaned on the idea of broadcasting to give their blessing to media consolidation amongst major TV, radio, newspaper & telecom groups in this country, all in the name of . . . strengthening Canadian broadcasting (see CMCR Project’s, 2020, Media & Internet Concentration in Canada, 1984-2019, p. 15).  

The same groups have also blessed levels of vertical integration that have been given the green light by weak regulators at the CRTC and Competition Bureau that are exceptionally high in Canada by historical & international standards between, e.g. Rogers & City TV, Bell/CTV/CHUM/Astral & Shaw/Corus/Canwest/Alliance Atlantis, circa 2006-2013. We now have the very odd situation in Canada where nearly all of the main commercial television and radio services are owned by telecoms companies. And these groups clapped and cheer-leaded as these developments took place all in the name of . . . strengthening Canadian broadcasting.

Never mind that even the head of the ‪CRTC for most of those deals now pleads mea culpa whenever discussing this issue. This permissive approach has been a colossal failure, he says. Meanwhile, think tanks and lobbyist groups such as PPF and Friends, respectively, and some journalists defending C10 have either joined the cheer-leading or yawned.  

The same groups have also blessed the idea that when people access the Internet over mobile phones it was a-ok for Bell, for example, to charge them full rate for access to the “full Internet” versus a cheaper rate for Bell “aggregated content” (i.e. Bell’s Mobile TV offering), all in the name of . . . strengthening Canadian broadcasting–a case fought & won at the ‪CRTC & Federal Court of Appeal by Carleton University Communication Studies doctoral candidate Ben Klass. Klass’s tenacity and victories helped to fortify the crown jewel in Canadian communication policy, i.e. common carriage (aka net neutrality).

The idea of broadcasting has also been used and abused by the same groups to bless the notion that not just Bell but all ISPs & mobile operators in Canada should be able to charge people more to access the full Internet versus their “aggregated” zero-rated services (CRTC, 2017). Those same groups now want to take this same notion of “aggregated content” and help build it into the cornerstone of a new generation of Internet regulation modelled on broadcasting regulation. For nearly 25 years we have stopped them from doing so and we should forcefully do so this time around. They won’t give up and neither should or can we.

In that case, the “Internet-as-broadcasting” group, including, regrettably, the CBC (since I’m a huge fan), argued that all ISPs should be able to lift subscribers’ data caps in favour of Cancon while applying those data limits to content, apps & services from anywhere else . . . again, all to strengthen Canadian broadcasting. Klass, Fenwick Mckelvey, Marc Nanni and I argued against this idea (see here). Fortunately, the CRTC—under J. P. Blais, not the current leader who has basically downed tools on the telecoms and market concentration fronts while overseeing a plan to vastly expand the Commission’s reach to the four corners of the Internet—agreed and killed that bid.

In doing so, the CRTC clarified, adapted and fortified Canada’s common carrier/net neutrality rules. As a result, we now have the international gold  standard in this respect.

The same industry groups and their hangers on in the think tank and lobbying worlds turned around a year later to argue that ISPs like Bell, Rogers, Telus, Shaw, Quebecor, and so on should be required to implement an ISP-level website blocking scheme. Again, this unprecedented attempt to undo our gold-standard common carriage rules was ponied up in the name of . . . strengthening Canadian broadcasting. The ‪CRTC lamented it lacked power to do so but seemed to be chomping at the bit to carry out its industry masters’ wishes (CRTC, 2018). It now has its chance since the Department of Canadian Heritage has put that item back on the table and the CRTC seems anxious to get what its hitherto been denied: more power to issue website blocking orders for copyright enforcement purposes (Canadian Heritage, 2021).

Now that the telcos are mostly vertically-integrated they have all changed their tune from 2011 when they flat out rejected this idea on the grounds that it was a blunt tool that a common carrier should not be required to use on behalf of copyright claimants and that it clashed with Canadians’ privacy and expressive rights. Now having come to own more than 100 television services and an equal number of radio services between them, the companies have done an about face. Again, it’s all about . . . strengthening broadcasting.

On other matters like, for example, the proposed Rogers-Shaw deal—the 6th largest M&A in Canadian history—successful efforts to expand universal affordable Internet service, bring about more affordable Internet data plans, etc., you know who hasn’t been there?

Anyone from the regulate-the-Internet-like-broadcasting group of interests like the Public Policy Forum, Friends of Canadian Broadcasting, etc., that’s who. They don’t give a damn about any of these things, only the narrow view of the Internet as a wee thing grafted onto broadcasting that they’ve been pushing non-stop for 25 years.

The damage these groups have already caused by cheerleading on all the above, or sitting on their hands, in the face of the vitally important matters of communication and the public interest these issues raise is enough. Their hands should not be anywhere near the controls of what a new generation of Internet and digital platform regulation should look like. Incredibly, however, it now appears that they are driving C10. That’s why it must go. And that’s why the Liberal Government and Minister Guilbeault must kill C10. It is also why the good people working at Canadian Heritage need to go back to the drawing board and start this process all over.

I hope that anyone offering one iota of support for C10 considers what that means in terms of tossing all of the small but important gains just reviewed under the bus & how C10 will block paths to better & more legitimate democratic oversight of platforms & the Internet.

In sum, this is a once-in-a-lifetime moment. Things are just too important to not get it right. And to get it right, we need a legitimate process that ultimately gives us a new generation of internet regulation for the public interest and democracy. This agenda needs to be both more ambitious in its goals and more circumspect of who has the power to define them.

Categories: Internet
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