Quotulatiousness

December 15, 2023

Bill S-210 “isn’t just a slippery slope, it is an avalanche”

Filed under: Business, Cancon, Government, Liberty, Media, Technology — Tags: , , , , , , , — Nicholas @ 04:00

You sometimes get the impression that the only person in Ottawa who actually pays attention to online privacy issues is Michael Geist:

“2017 Freedom of Expression Awards” by Elina Kansikas for Index on Censorship https://flic.kr/p/Uvmaie (CC BY-SA 2.0)

After years of battles over Bills C-11 and C-18, few Canadians will have the appetite for yet another troubling Internet bill. But given a bill that envisions government-backed censorship, mandates age verification to use search engines or social media sites, and creates a framework for court-ordered website blocking, there is a need to pay attention. Bill S-210, or the Protecting Young Persons from Exposure to Pornography Act, was passed by the Senate in April after Senators were reluctant to reject a bill framed as protecting children from online harm. The same scenario appears to be playing out in the House of Commons, where yesterday a majority of the House voted for the bill at second reading, sending it to the Public Safety committee for review. The bill, which is the brainchild of Senator Julie Miville-Duchêne, is not a government bill. In fact, government ministers voted against it. Instead, the bill is backed by the Conservatives, Bloc and NDP with a smattering of votes from backbench Liberal MPs. Canadians can be forgiven for being confused that after months of championing Internet freedoms, raising fears of censorship, and expressing concern about CRTC overregulation of the Internet, Conservative MPs were quick to call out those who opposed the bill (the House sponsor is Conservative MP Karen Vecchio).

I appeared before the Senate committee that studied the bill in February 2022, where I argued that “by bringing together website blocking, face recognition technologies, and stunning overbreadth that would capture numerous mainstream services, the bill isn’t just a slippery slope, it is an avalanche”. As I did then, I should preface criticism of the bill by making it clear that underage access to inappropriate content is indeed a legitimate concern. I think the best way to deal with the issue includes education, digital skills, and parental oversight of Internet use including the use of personal filters or blocking tools if desired. Moreover, if there are Canadian-based sites that are violating the law in terms of the content they host, they should absolutely face investigation and potential charges.

However, Bill S-210 goes well beyond personal choices to limit underage access to sexually explicit material on Canadian sites. Instead, it envisions government-enforced global website liability for failure to block underage access, backed by website blocking and mandated age verification systems that are likely to include face recognition technologies. The government establishes this regulatory framework and is likely to task the CRTC with providing the necessary administration. While there are surely good intentions with the bill, the risks and potential harms it poses are significant.

The basic framework of Bill S-210 is that it creates an offence for any organization making available sexually explicit material to anyone under the age of 18 for commercial purposes. The penalty for doing so is $250,000 for the first offence and up to $500,000 for any subsequent offences. Organizations (broadly defined under the Criminal Code) can rely on three potential defences:

  1. The organization instituted a “prescribed age-verification method” to limit access. It would be up to the government to determine what methods qualify with due regard for reliability and privacy. There is a major global business of vendors that sell these technologies and who are vocal proponents of this kind of legislation.
  2. The organization can make the case that there is “legitimate purpose related to science, medicine, education or the arts”.
  3. The organization took steps required to limit access after having received a notification from the enforcement agency (likely the CRTC).

The enforcement of the bill is left to the designated regulatory agency, which can issue notifications of violations to websites and services. Those notices can include the steps the agency wants followed to bring the site into compliance. This literally means the government via its regulatory agency will dictate to sites how they must interact with users to ensure no underage access. If the site fails to act as instructed within 20 days, the regulator can apply for a court order mandating that Canadian ISPs block the site from their subscribers. The regulator would be required to identify which ISPs are subject to the blocking order.

September 22, 2023

“The Online News Act … has been an utter disaster”

Filed under: Cancon, Government, Law, Media, Politics — Tags: , , , , — Nicholas @ 03:00

Michael Geist on the ongoing disaster the federal government created with the Online News Act:

Prime Minister Justin Trudeau was asked this week about concerns with the implementation of Bill C-18, to which he responded that other countries are quietly backing Canada in its battle against tech companies. I posted a reality check tweet noting that Meta is not returning to news in Canada, the law’s regulation stipulating a 4% fee on revenues is not found anywhere else, and that Bill C-18 has emerged as a model for what not to do. With the House of Commons back in session, it is worth providing a more fulsome reality check on where things stand with the Online News Act. While the government is still talking tough, the law has been an utter disaster, leading to millions in lost revenues with cancelled deals, reduced traffic for Canadian media sites, declining investment in media in Canada, and few options to salvage this mess.

For those that took the summer off, Bill C-18 received royal assent in late June. Over the past three months:

1. Meta has blocked all news links in Canada and cancelled existing deals with Canadian news outlets. The blocked links covers both Canadian and foreign news in light of the broad scope of the law. While the Australian experience lasted a few days, the blocking in Canada has now gone on for weeks and there is little reason to believe that the company will reverse its position to comply with the law by simply not linking to news.

2. The government responded to the blocked news links by stopping to advertise on Facebook and Instagram and encouraging others to do the same. The boycott has had little effect as the Liberal party is still advertising on the platforms with a new round of ads this week, the Prime Minister is still posting on the platforms, and reports indicate that Facebook has not experienced a reduction in user activity. In fact, reports suggest that the experience on Facebook without news has improved. Further, a Competition Act complaint has not sparked any action.

3. Google responded to Bill C-18 by advising it too would remove news links from its services before the law takes effect in December. That position enabled it to wait for the government to release draft regulations that provide further detail on the application of the law and the standards for obtaining an exemption from the mandatory bargaining process that can lead to final offer arbitration overseen by the CRTC.

Several more items of concern at the link.

September 2, 2023

The 4% non-solution

Filed under: Business, Cancon, Law, Media — Tags: , , , , , — Nicholas @ 03:00

Michael Geist updates us on the Canadian government’s latest blunder in the Online News Act saga:

The government is releasing its draft regulations for Bill C-18 today and the chances that both Google and Meta will stop linking to news in Canada just increased significantly. In fact, with the government setting an astonishing floor of 4% of revenues for linking to news, the global implications could run into the billions for Google alone. No country in the world has come close to setting this standard and the question the Internet companies will face is whether they are comfortable with the global liability that would see many other countries making similar demands. The implications are therefore pretty clear: there is little likelihood that Meta will restore news links in Canada and Google is more likely to follow the same path as the Canadian government establishes what amounts to 4% link tax from Bill C-18 on top of a 3% digital services tax and millions in Bill C-11 payments.

The estimated revenues from Bill C-18 or the Online News Act have always been the subject of some debate. The Parliamentary Budget Officer set the number at $329 million, using a metric of 30% of news costs for all news outlets in Canada. Under that approach, over 75% of the revenues would go to broadcasters such as Bell, Rogers, and the CBC. The Canadian Heritage estimates were considerably lower, with officials telling a House of Commons committee last December that they expected about $150 million in revenue:

    I won’t speak to the PBO report which is the source of the numbers that you cited. That was not a department-led initiative. The internal modelling that we did when we tabled the bill and mentioned in our technical briefings was more around $150 million impact. That was based again in terms of how this played out in Australia and making some assumptions about how it might play out here. With respect to the PBO report, any questions about that particular number would have to be directed towards them.

By the time the bill reached the Senate several months after that, the number had grown to $215 million.

With the release of the draft regulations, the government has established a formula with an even bigger estimate. The creation of a formula is presumably designed to provide some cost certainty to the companies and represents a change in approach in Bill C-18, given that the government had previously said it would not get involved private sector deals but it is now setting a minimum value of the agreements. Officials told the media this morning that it believes Google’s contribution would be $172 million and Meta’s would be $62 million, for a total of $234 million. However, that may understate the revenues by focusing on search revenues alone. If based on total revenues, with a 4% minimum floor, the requirement would exceed C$300 million for Google. Either way, the number is more than 50% higher than the $150 million estimate the department gave the Heritage committee just eight months ago.

The draft regulations will also provide some additional clarity on several issues. The standard for a digital news intermediary has been fleshed out to include $1 billion in global revenues and 20 million Canadian users. As for the process, those companies subject to the rules are required to conduct a 60 day open call for negotiations. To meet a fairness standard, the resulting deals must be within 20% of the average and cover a wide range of news outlets. Contributions can include non-monetary items but it seems unlikely the resulting deals would grant links significant value. The CRTC would then pass judgment on the deals and determine whether the companies are exempt from a final offer arbitration process. The timing on this includes a 30 day consultation process on the regulations, before they are finalized prior to the December deadline. But with the CRTC not having established a bargaining framework before 2025, the liability issues start arising well before any deals are concluded or approved.

August 13, 2023

“It makes [Canada] look like some cheap, politically petty little kleptocracy run by a collection of self-serving narcissists”

Filed under: Bureaucracy, Cancon, Government, Media — Tags: , , , , — Nicholas @ 03:00

Canada became a parody of itself so slowly that the legacy media barely even noticed:

There was a time when politicians steered very carefully around saying anything that could be construed as an attempt to influence a decision by one of Canada’s independent agencies.

Honest, there was.

There was also a time when, should a politician so much as nod or wink publicly to indicate a preferred outcome by, say, the office of the Commissioner for Competition, the nation’s leading media organizations would see this as a big story. Sixteen dollar orange juice big. Heads would roll.

Seriously, there was.

The reasons people like Francois-Phillipe Champagne, Minister of Innovation, Science and Economic Development are supposed to keep their yaps shut are pretty straightforward. Businesses, citizens, consumers, and investors need to know the processes at law enforcement agencies and regulators — such as the Competition Bureau and the CRTC respectively — are independent of the sordid manipulations of partisanship. They need to be able to trust that the rules are clear, their application is consistent and that they can have faith that the institution involved views matters before it in an objective fashion.

It’s Rule of Law 101 stuff and messing with it makes Canada look like something less than a first world country. It makes us look like some cheap, politically petty little kleptocracy run by a collection of self-serving narcissists.

Shortly after the CBC, the Canadian Association of Broadcasters and News Media Canada filed a complaint with the Competition Bureau over Meta’s decision to no longer carry news in Canada, Champagne seized the opportunity to show Big Tech who their daddy is.

“I am determined to use every tool at our disposal to ensure that Canadians can have access to reliable news — across all platforms,” Champagne posted on X (the platform formerly known as Twitter). “I fully support the complaint made to the Competition Bureau by Cnd media groups against Meta in their effort to promote a free & independent press.”

I don’t expect that many readers have hung around with cabinet appointees. But I have, and I’ve been one. And I can tell you that most of them — particularly the ones whose conditions of appointment mean they serve “at pleasure” as Competition Commissioner Matthew Boswell does — pay attention when the minister through whom their agency reports to Parliament, says anything, let alone things like that.

August 3, 2023

“Tech giants” obey the law and block access to Canadian news sites to Canadian users

Filed under: Cancon, Government, Law, Media, Technology — Tags: , , , , , , — Nicholas @ 03:00

For some reason — despite a clamour of warnings from sensible observers — the Canadian government still seems shocked and surprised that the much-reviled “tech giants” have chosen to obey the new Online News Act and are actively blocking links to Canadian media outlets just as the law requires:

For months, supporters of Bill C-18, the Online News Act, assured the government that Meta and Google were bluffing when they warned that a bill based on mandated payments for links was unworkable and they would comply with it by removing links to news from their platforms. However, what has been readily apparent for months became reality yesterday: Meta is now actively blocking news links and sharing on its Facebook and Instagram platforms. The announcement does not reference Threads, but it would not surprise if news links are ultimately blocked on that platform as well. The company says that the blocking will take several weeks to fully roll out to all users, suggesting that it has learned from the over-blocking mistakes made in Australia and is proceeding more cautiously in Canada. By the end of the month, the world’s largest social media platform will become a news desert in Canada, with links to all news – both Canadian and foreign – blocked on the platform.

It is worth revisiting that it was only a couple of months ago that some industry leaders, lobbyists, and academics were assuring the Senate that the Meta threat was just a bluff. Kevin Desjardins of the Canadian Association of Broadcasters, referenced the Australian experience, and told the Senate committee studying the bill that “when legislated to do so, they will come to the table”. Sylvain Poisson of Hebdos Quebec confidently said “they made those threats in Australia and elsewhere and every time they back down”. Chris Pedigo of the U.S.-based Digital Context Next assured the committee “it’s important to understand what happens when these bills become law. In Australia, they moved quickly to secure deals. They have done similar work in Europe, and I expect it would happen quickly in Canada as well.” And Carleton professor Dwayne Winseck said “I am not worried. The threats they are making, they are doing this all around the world.”

Despite the assurances, the company was true to its word and blocking news links is now here. If this is a negotiation tactic, it’s a pretty strange one given that reports indicate the company is not talking to the government about potential changes to a law that has already received royal assent. Indeed, while the new Heritage Minister Pascale St-Onge urged the company to participate in the regulatory process, there is nothing in the regulations that could alter the fundamental principle in the bill of mandated payments for links. At best, the government could toss aside its commitment to stay out of negotiations by using the regulations to dictate to the supposedly independent CRTC how much needs to be spent in order to avoid Bill C-18’s final offer arbitration provisions. Government negotiating total payment value and eviscerating the CRTC’s independence does not inspire confidence and Meta reasonably wants no part of it, since the time to fix Bill C-18 was before it received royal assent, not after.

Bolded section mine: I didn’t realize that it wasn’t just Canadian media links that were being blocked … it’s all news sites in the world being hidden from Canadian users. That’s an escalation from what I’d originally understood. I don’t blame the “tech giants” at all, but it will be tough on older Canadians who’ve been depending on social media to keep them up-to-date on domestic and foreign news.

July 29, 2023

If you like the CRTC regulating the internet, you’ll love having them regulating video games!

Filed under: Bureaucracy, Cancon, Gaming, Government, Technology — Tags: , , — Nicholas @ 03:00

Not satisfied with strenuously trying to break the internet for ordinary Canadians, the Trudeau government is now being lobbied to introduce regulation of video games, too:

Bill C-11 may have receded into the background of CRTC consultations and government policy directions, but Canadians concerned with user content, video game and algorithmic regulation would do well to pay attention. Lobby groups that fought for the inclusion of user content regulation in the bill have now turned their attention to the regulatory process and are seeking to undo government assurances that each of those issues – user content, algorithms and even video games – would fall outside of the scope of the regulatory implementation of the bill. In fact, if the groups get their way, Canadians would face unprecedented regulations with the CRTC empowered to create a host of new obligations that could even include requirements for Youtubers and TikTokers to register with the Commission. With a new Heritage Minister in place, the submissions raise serious concerns about whether the government will maintain its commitments regarding scoping out users, video games, and algorithms.

The most troubling publicly available document comes from a coalition that calls itself ACCORD, representing songwriters, composers, and music publishers. The group has posted its submission to the government’s consultation on the draft policy direction to the CRTC on Bill C-11. All submissions are not yet posted, but I should note that I also submitted a brief document, calling on the government to fully honour its commitment to exclude user content and algorithms from regulation and to establish limits on discoverability regulation.

The government’s draft direction had called for “minimizing” algorithmic regulation and the exclusion of user content and video game regulation. The music lobby is now calling on the government to rollback virtually all of its commitments on these issues. The draft direction states:

    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.

The lobby wants virtually all of this removed, deleting references to online undertakings and video games. Moreover, the directive speaks to Section 4.2, stating:

    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.

Here too the lobby group wants most of the paragraph deleted. And while the government directed the CRTC to minimize algorithmic regulation for discoverability purposes, the groups wants those limitations removed as well. In short, the lobby groups validate the concerns expressed by thousands of Canadians that Bill C-11 opened the door to the regulation of user content, video games, and algorithms.

May 5, 2023

Canada’s new internet rules have become law. What now?

Filed under: Cancon, Government, Law, Liberty, Media, Technology — Tags: , , , , , , — Nicholas @ 04:00

J.J. McCullough
Published 4 May 2023

Bill C-11 has passed. But there’s still time.
(more…)

May 1, 2023

“And I, for one, welcome our new CRTC internet overlords”

Filed under: Bureaucracy, Cancon, Government, Media — Tags: , , , , , , — Nicholas @ 06:00

In this week’s Dispatch from The Line, among other maple-flavoured items is the discussion of how the newly passed Bill C-11 will impact Canadians’ everyday online experience:

We at The Line have spent a lot more time trashing Bill C-18 than its cousin, C-11; the reason for that is fairly simple, if unflattering. Both bills are unwieldy little monsters, rife with competing agendas and we only have so much time and energy to spare. Of the two, though, C-18 affects us and our business more directly as it attempts to force Big Tech companies into secret negotiations to prop up dying legacy media outlets.

C-11, which passed this week, is the Liberals’ attempt to overhaul the Broadcasting Act to bring major streaming services like YouTube and Netflix under the heel of the CRTC. This is generally a pretty bad idea — and we’ll get into that in a second. But the passing of the first major overhaul of the act since the ’90s will, we expect, be heralded by the usual suspects of CanCon leeches who see in the legislation an opportunity to siphon evil Big Tech profit while forcing major platforms to force-feed Canadians into consuming more home-grown shite.

Anyway, part of the bill, it is hoped, will force online streamers to feature more Canadian content for Canadian users, particularly content that highlights the usual progressive checkboxes. And while this does make us roll our eyes a bit — just make good stuff and let people choose what they want for themselves! — we admit that this provision is the less objectionable aspect of C-11.

After this, matters get much more dicey. The attempts to force tech companies to pay for more CanCon will almost certainly backfire in the long run: companies like YouTube have already promised that they will comply with legislation by creating pass-through fees for their creators. In other words, if the government forces YouTube to pay a percentage of its profits into a CanCon fund, YouTube will generate that revenue the only way it can — by skimming more cash from its content creators and re-directing some to the creation of Canadian shows that are then commercialized by major broadcasting networks like Rogers. Seems fair!

Where the bill goes off the rails is over years-long battle over user-generated content protections. Upon hitting the upper chamber, the senate actually advocated for amendments that would ensure that Joe Blow YouTuber wasn’t going to fall under the auspices of CRTC regulation — changes that were rejected by the House. How the CRTC defines a content generator worthy of its regulation, or uses any of its new powers, is now up for consideration by the CRTC itself.

Obviously, we at The Line are concerned about how a regulator is going to employ poorly defined and vaguely stipulated legislative powers to control how Canadians are presented which content, and by whom. We are open to the hopeful possibility that the CRTC is so completely in over their heads that all of the concerns about the bill prove fruitless and overblown. But as a rule, we don’t like to rely on the incompetence of our betters to assure our protections and freedoms.

And that brings us to the major philosophical problems with C-11; the first is that legislation should generally not generate more confusion and uncertainty. As a rule, we think that our laws should be written in such a way that an ordinarily intelligent person with a standard education should be able to understand the laws that govern them. By this measure, the Broadcasting Act — like many others — fail a very basic test. C-11 is written so poorly that even experts seem to disagree about the scope of the bill and how our media landscape will be affected by it in the years to come.

[…]

There is, arguably, no reason for the CRTC, nor for the Broadcasting Act in its current form, to exist anymore. Digital space isn’t finite. Canadians can easily find news and entertainment that is relevant to them. We don’t need the government to ensure that Canadian content is produced and funded. Or, if some government intervention is deemed necessary, it need not amount to anything more complicated than a simple tax, with revenues diverted to one of this country’s myriad granting agencies to aid production. Instead, we have a government that seems hellbent on extending the power of a regulator at the very moment in history that this regulator is most redundant.

Given that we’re being led by an increasingly insular government that equates all criticism to disingenuous misinformation, and seems to want to stamp out the evils of wrong opinions on the Internet in the coming Online Harms bill, well, let’s just say we’re increasingly concerned and perturbed.

March 31, 2023

Bill C-11 should properly be called the “Justin Trudeau Internet Censorship Bill”

Filed under: Cancon, Government, Media, Politics, Technology — Tags: , , , , , , — Nicholas @ 05:00

In The Free Press, Rupa Subramanya explains why the federal government’s Bill C-11 is a terrible idea:

Canada’s Liberals insist the point of Bill C-11 is simply to update the 1991 Broadcasting Act, which regulates broadcasting of telecommunications in the country. The goal of the bill, according to a Ministry of Canadian Heritage statement, is to bring “online broadcasters under similar rules and regulations as our traditional broadcasters”.

In other words, streaming services and social media, like traditional television and radio stations, would have to ensure that at least 35 percent of the content they publish is Canadian content — or, in Canadian government speak, “Cancon”.

The bill is inching toward a final vote in the Canadian Senate as soon as next month. It’s expected to pass. If it does, YouTube CEO Neal Mohan said in an October blog post, the same creators the government says it wants to help will, in fact, be hurt.

[…]

If you’re confused by all this — if you’re wondering why the Liberal Party and its allies in these quasi-governmental organizations are suddenly so worried about Canada’s national identity — that’s understandable.

In a 2015 interview with The New York Times, Trudeau proudly declared, “There is no core identity, no mainstream in Canada.” Canada, he explained, is “the first postnational state”. The authorized, two-volume biography of Trudeau’s father, former prime minister Pierre Trudeau, is called Citizen of the World. Pablo Rodriguez maintains dual citizenship — in Canada and in Argentina, where he was born.

So why is Trudeau, of all people, championing this legislation? There’s an easy explanation — and it has nothing to do with borders or culture.

“Bill C-11 is a government censorship bill masquerading as a Canadian culture bill,” Jay Goldberg, a director at the conservative Canadian Taxpayers Federation, told me. Referring to the Canadian Radio-television and Telecommunications Commission, Goldberg said, “The government is intending to give the power to the CRTC to be able to filter what we see in our news feeds, what we see in our streaming feeds, what we see on social media.”

Supporters of Bill C-11 emphasize it would affect only YouTube, Netflix, Amazon, TikTok, and other Big Tech platforms; the Heritage Ministry statement notes “the bill does not apply to individual Canadians”. But the language is so vague that it’s unclear how it would actually be implemented.

For example, it would be up to CRTC regulators to decide what constitutes “Canadian” content. The singer The Weeknd was born in Toronto but now mostly lives in Los Angeles. Does he still count as Canadian? What about rock n’ roller Bryan Adams, who was born in Kingston, Ontario, and spends a great deal of time in Europe?

February 17, 2023

Quebec suddenly realizes there are significant problems with Bill C-11

Filed under: Cancon, Government, Law, Media, Politics, Technology — Tags: , , , , — Nicholas @ 03:00

Michael Geist, who has been doing heroic work covering the federal government’s attempts to seize control of what Canadians can see and publish online, says that Quebec has finally woken up to the threat to their culture embedded in the federal government’s Bill C-11:

Bill C-11 – and its predecessor Bill C-10 – have long been driven by the government’s view that the bill was a winner in Quebec. Bill C-10 was headed for easy passage in 2021, but was derailed by the government’s decision to remove safeguards over regulating user generated content that came largely from the Quebec-based music lobby. Nearly two years later, Canadian Heritage Minister Pablo Rodriguez and his staff have ignored the concerns of thousands of digital creators, disrespected indigenous creators, and indicated that he will likely reject Senate amendments designed to craft a compromise solution, all in the name of keeping Quebec lobby interests satisfied. Yet as the government considers the Senate amendments, the Quebec legislative assembly this week passed a last minute motion calling for further changes to the bill, including scope to enact its own rules and mandatory consultations with the province on the contents of a policy direction to the CRTC that Rodriguez has insisted on keeping secret until after the bill receives royal assent (a full copy of the motion is contained at the bottom of this post). The Conservatives have been calling for the Quebec motion and the Senate amendments to be sent back to committee for further study, which the Globe reports may delay the government’s response to the Senate amendments.

It is not clear what prompted the Quebec government to finally wake up to the centralizing power over digital culture that comes from the bill (and just wait until it realizes that Bill C-18 encroaches on provincial jurisdiction with the regulation of newspapers). But this issue has been there from the beginning. In March 2021, Philip Palmer, a former Justice counsel, argued that Bill C-10 was unconstitutional, making the case it fell outside federal jurisdiction. In a post on his submission, I noted:

    Quebec has a long history of taking issue with federal involvement in broadcasting, putting a potential challenge in play. Indeed, it is odd to see this legislation viewed as a political winner in Quebec, when it effectively asserts federal jurisdiction over an area that has long been contested in the province.

Palmer appeared before the House committee studying Bill C-11 and warned MPs about the constitutional jurisdictional overreach. His opening statement noted:

    C-11 lacks a foundation in Canadian constitutional law. Internet streaming services do not transmit to the public by radio waves, nor do they operate telecommunications facilities across provincial boundaries. They and their audiences are the clients of telecommunications common carriers, which are subject to federal regulation. Netflix, for instance, in this case is no more a federal undertaking than a law firm such as McCarthy Tétrault or a chain store like Canadian Tire, both of which rely extensively on telecommunications services.

Liberal MP Anthony Housefather followed up on the issue, asking Palmer to cite caselaw to back his claim. His response:

    The principal case for all federal regulation of broadcasting space is, of course, the radio reference of 1932. In that, the court relied upon the provisions of subsection 92(10) of the Constitution Act to find that, in transmitting radio waves, they necessarily exceeded provincial boundaries and, therefore, could only be effectively regulated at the federal level. The key is that, in order to be regulated by the federal government, the “undertaking”, as the Constitution uses the word, has to be one that has the facilities to exceed provincial limitations and provincial boundaries.

Housefather wasn’t convinced and asked Professor Pierre Trudel, a vocal supporter of Bill C-11, for his view. Trudel didn’t deny the issue. In fact, he confirmed it, suggesting that the Supreme Court would ultimately have to determine the question:

    If this were unconstitutional, it would be because it would be a matter of provincial jurisdiction. The question would then have to be asked: is it better for 10 provinces to put in place regulations on these matters or for the federal authority to do so? There are arguments that radio waves are not the only basis for federal jurisdiction in these matters. There is, among other things, the question of national interest and the inherently interprovincial nature of the activity. In short, all these arguments may have to be argued before the Supreme Court. Either the federal government has authority, or the provinces do. Therefore, it is to be expected that the Canadian state will intervene sooner or later, whether through the provinces or through the federal government.

The takeaway from this exchange – a former justice lawyer citing caselaw to confirm the shaky constitutional foundation of the bill and a professor confirming the Supreme Court would have to decide – should have provided a wakeup call to Quebec, which has a long history of challenging federal jurisdiction in communications that dates back nearly 100 years with repeated efforts to enact provincial laws and policies in the area. Left unsaid is that if the “national interest” dictates federal regulation of anything that touches the Internet, there are few limits on federal powers and little left for the provinces.

February 4, 2023

Federal regulation of the Canadian book market has resulted in 95% of the market now being foreign owned

Filed under: Books, Business, Cancon, Government — Tags: , , , — Nicholas @ 05:00

For the record, I don’t think this kind of cultural regulation is a good idea to start with, but as Ken Whyte points out, if staving off foreign ownership was the primary intent, could it have failed any more comprehensively than this?

Sometime last year, the Association of Canadian Publishers, which represents most of the independent book publishers in English Canada (Sutherland House is not a member), began discussing a radical — some might say dangerous — new form of regulation for the Canadian book industry.

The ACP started from the reasonable position that the existing federal approach to regulating the Canadian book industry has failed. That approach is to encourage a Canadian-owned book sector and, ipso facto, to discourage foreign ownership of Canadian publishing. Successive Canadian governments, Conservative and Liberal, have paid lip-service to the policy and failed to enforce it. The multinational publishers — Simon & Schuster, Penguin Random House, HarperCollins — have moved into Canada in a big way. Great chunks of the Canadian-owned industry, including McClelland & Stewart and Harlequin Books, have been sold to foreign buyers.

The multinationals now account for about 95 or 96 percent of book sales in Canada. All but the last 5 or 6 percent of their revenue comes from sales of imported books, most of them produced in the US or UK.

The Canadian-owned component of the book sector, which produces the vast majority of Canadian author books, has shrunk to about 4 or 5 percent of the market and sales of Canadian-authored books, says the ACP, have “flatlined”.

So you can see why the ACP is interested in a new approach: for more than half a century, while pursuing an official policy of encouraging Canadian-ownership, our government has managed to hand almost the whole of our book industry to foreign-owned firms.

I, too, am interested in a new approach. It’s the ACP’s next step that worries me.

The ACP has been watching over the past couple of years as the federal government rewrites its Broadcasting Act. The thrust of Bill C-11 is to bring foreign-owned streaming services operating in Canada — the likes of Netflix, Apple, YouTube — under the jurisdiction of the Canadian Radio-televison and Telecommunications Commission (CRTC). The bill would grant the CRTC the power to impose on streaming services the same rules it imposes on the likes of CTV and Global and the companies that own them. It would compel streamers to use Canadian talent, abide by Canadian diversity requirements, prioritize Canadian content on their platforms, and give a percentage of their revenues to a fund to support the production of Canadian content.

It has occurred to the ACP that no one in government is asking foreign-owned book publishers to abide by Canadian content quotas or to deliver percentages of their revenue to a fund to support Canadian-owned book producers: “The absence of a CRTC or related regulatory body, along with the policies and programs that such a body can enact, has meant that non-Canadian firms enjoy unfettered access to the Canadian marketplace.”

That’s not quite right. Non-Canadian firms dominate Canadian publishing because the feds won’t enforce their existing policy, not because we don’t have a CRTC for books. In any event, the ACP is embracing the spirit of Bill C-11.

Oh, goody! Government bureaucratic oversight is bound to make Canadians more interested in reading Canadian books, right? I see no way that this could possibly fail.

December 16, 2022

The Online News [Shakedown] Act passes the House of Commons

Filed under: Business, Cancon, Government, Media — Tags: , , , , , , , , — Nicholas @ 03:00

Michael Geist summarizes the farcical progress of Justin Trudeau’s legalized theft from the “tech giants”:

Later today, the House of Commons will vote to approve Bill C-18, the Online News Act, sending it to the Senate just prior to breaking for the holidays. While Canadian Heritage Minister Pablo Rodriguez and media lobbyists will no doubt celebrate the milestone, it should not go unremarked that the legislative process for this bill has been an utter embarrassment with an already bad bill made far worse. The government cut off debate at second reading, actively excluded dozens of potential witnesses, expanded the bill to hundreds of broadcasters that may not even produce news, denigrated online news services as “not real news”, and shrugged off violations of international copyright law. All the while, it acknowledged that mandated payments for links are the foundation of the bill with officials stating that individual Facebook posts accompanied by a link to a news story would be caught by the law. As for the purported financial benefits, the government’s own estimates are less than half those of the Parliamentary Budget Officer, who also concluded that more than 75% of the revenues will go to broadcasters such as Bell, Rogers, and the CBC. The end result is a bill that will undermine competition and pose a threat to freedom of expression, while potentially leading Facebook to block news sharing in Canada and Google to cancel dozens of existing agreements with Canadian news outlets.

As I’ve chronicled for months, Bill C-18 is the product of an intense lobbying campaign from some of Canada’s largest media companies. While the Globe and Mail broke from the pack at the last minute, years of one-sided editorials — even devoting full front pages to the issue — had its effect. Indeed, Canadian newspapers would be exhibit #1 for how government intervention in the media space has a direct impact on an independent press. From the moment of its introduction, the consequences were immediately obvious as payments for links serves as the foundation for a law that treats “facilitating access to news” as compensable. Canadians can be forgiven for thinking the bill is about compensating for reproduction of news stories. It is not, since the platforms don’t do that. Instead, it is about requiring payments for links, indexing or otherwise directing traffic to the news organizations who are often the source of the link itself. In most circumstances, recipients pay for the benefits that come from referral traffic. With Bill C-18, the entities providing the referrals pay for doing so.

Further, the bill is about far more than struggling Canadian newspapers as it expands eligibility into broadcasters such as the CBC, foreign news outlets such as the New York Times, and hundreds of broadcasters licensed by the CRTC that are not even required to produce news. The end goal is negotiated payments for links, backed by the threat of a one-sided arbitration process overseen by the CRTC in which the arbitration panel can simply reject offers if it believes it fails to meet the government’s policy objectives. That isn’t a commercial deal, it is a shakedown.

I’ve been operating on the assumption that the government is betting that the big internet companies won’t do the obvious and ban linking to any Canadian media outlet on their respective platforms, but the feds don’t have a great track record of predictions in recent years …

In a later post, Michael Geist illustrated the literal misinformation that was pushed by government MPs during Bill C-18’s path through to final reading by quoting some of Liberal MP Lisa Hepfner’s contributions:

Last month, Liberal MP Lisa Hepfner shocked Canadian online news outlets by stating that “they’re not news. They’re not gathering news. They’re publishing opinion only.” The comments sparked instant criticism from news outlets across the country, leading Hepfner to issue a quick apology. In the aftermath of the comments, Hepfner said nothing for weeks at Heritage committee studying Bill C-18. That bill passed third reading yesterday – I posted on the embarrassing legislative review – and Hepfner was back at it. Rather than criticizing online news outlets, this time she targeted the Internet platforms, saying the bill would make it “harder for big digital platforms like Facebook and Google to steal local journalists’ articles and repost them without credit.” 

[…]

Hepfner’s comment not only provide a troubling example of an MP engaging in misinformation about links who has effectively labelled her own Facebook posts as theft, but strikes at the heart of the problem with Bill C-18. As government officials have acknowledged, the entire foundation of the bill is based on paying for links. In fact, when a proposal to remove links from the bill was raised at committee, government MPs described the change as a loophole and voted against it. In the case of the CBC links, the government confirmed that Hepfner could write about the availability of children’s medications (ie. “Great news! CBC reports a million bottles of pain medication are on the way”) but once she added a link to provide a source for the claim, Bill C-18 is triggered.

These examples highlight the absurdity of a law that treats links as compensable and MPs who equate those links to theft. To be clear, there is nothing wrong with Hepfner or anyone else providing a link to a story on greater availability of children’s medicine. In fact, the CBC story has effectively already been paid for by the public and should be shared widely without the government creating barriers to sharing that information. What is wrong that is ill-informed MPs have voted for Bill C-18, creating a framework in which the government is imposing a mandatory payment scheme for some platforms for hosting links. The bill is now headed to the Senate which will hopefully make the necessary amendments to set Hepfner’s mind at ease that her own Facebook posts do not make her an accomplice to theft.

June 23, 2022

The government believes that anyone opposed to Bill C-11 is “spreading misinformation”

Filed under: Cancon, Government, Liberty, Media, Politics, Technology — Tags: , , , , — Nicholas @ 03:00

Happily for the Canadian government (if not for Canadian internet users), if Bill C-11 gets passed, they can sic the CRTC on those critics … isn’t that convenient?

Last week, shortly after midnight in Ottawa, the House of Commons Heritage Committee concluded its deliberations on the Online Streaming Act, which will grant a federal regulator authority over the global Internet.

You may think putting the Canadian Radio-television and Telecommunications Commission (CRTC) and its nine government-appointed commissioners in charge of the entire online world is a good thing. Or you may think it’s a bad thing. But I’m guessing we can all agree that Bill C-11, the world’s most extensive internet regulation legislation so far, is a Thing.

And you’d think a thing that big would be deserving of respectful, honest debate and thoughtful review. If there’s something in the legislation that is bad in a way that isn’t intended, you’d want it caught and fixed, right? We are, after all, about to grant authority over 21st-century communications to people in charge of something called The Broadcasting Act. An act that was passed in 1993 to make sure nothing terrible — like people preferring NFL over CFL football or the Oscars over the Genies — results from watching too much American TV. Given that thousands of successful Canadian free enterprise Tik-Tokers and YouTubers fear new rules will disadvantage them in favour of the CRTC’s certified cultural broccoli, you’d think that’d be worth a think.

But you’d be wrong.

[…]

But then Liberal MP Tim Louis of Kitchener took this government’s truth-torquing communications strategy to a breathtaking level of self-righteous fantasy — one that dripped with contempt for all but he and his clan.

He calmly rose in the House of Commons and quietly accused C-11’s critics of deliberately spreading “misinformation” — a chilling threat given the government’s plans to deal with he same in “Online Harms” legislation later this year.

Louis did not even try to say, as did Mendicino’s deputy minister, that there was a misunderstanding of some kind. He did not attempt to make it clear that there are people who — as reasonable people often will — disagree. He did not dismiss the bill’s critics as being overwrought, incorrect and yet honourable. He stood up in the House of Commons and, barefaced, declared that views, lived experiences and legal analyses — including the testimony of CRTC Chair Ian Scott — are “simply untrue”. In other words, it’s all #fakenews.

And we are all liars.

May 28, 2022

“… the only thing that is history are any immediate hopes for a more competitive communications marketplace in Canada”

Filed under: Business, Cancon, Government, Media, Technology — Tags: , , , , — Nicholas @ 03:00

Michael Geist pans the latest official misinformation from the federal government on telecommunications legislation:

Innovation, Science and Industry François-Philippe Champagne unveiled the government’s proposed new telecom policy directive yesterday, hailing it as a “historic step”. However, a closer look at the policy suggests that the only thing that is history are any immediate hopes for a more competitive communications marketplace in Canada. Once again, the government has shown itself unwilling to take a strong stand in favour of consumers and competition, instead releasing a directive that largely retains the status quo and sends the message to CRTC Chair Ian Scott to stay the course. Indeed, the primary purpose behind the announcement would appear to be an attempt to shield the government from criticism over its decision to leave the controversial CRTC decision on wholesale Internet access intact, thereby denying consumers the prospect of lower costs for Internet services.

While the new proposed policy directive features much needed details and helpfully replaces the 2006 and 2019 directives that often conflicted and enabled the CRTC to pay little more than lip service to the issue, it sends a strong signal that it is happy with the Commission’s current approach. For example, the directive’s summary on measures to address wholesale Internet access are all about the status quo: “requiring large companies to continue to give access to competitors” or “directing the CRTC not to phase out the existing model for wholesale access.” These are not instructions to change.

The same is true for mobile wireless competition. Rather that using the opportunity to accelerate competition through mobile virtual network operators, the CRTC is instead to directed to improve its hybrid MVNO model “as necessary”. A full MVNO model? The government says it is prepared to support it “if needed”. Based on the current market, it apparently believes it isn’t needed.

May 21, 2022

Despite government denials, CRTC will have the power to censor YouTube videos confirms CRTC Chair

Filed under: Bureaucracy, Cancon, Liberty, Media — Tags: , , , , — Nicholas @ 03:00

It’s long since got to the point that you never can take a Liberal cabinet minister’s word without verifying it for yourself. Today’s example is the constant denial from the government that their Bill C-11 would enable censorship of things like YouTube videos by the CRTC. In a Senate appearance on Wednesday, the head of the CRTC agreed that such censorship is allowed under the proposed legislation:

CRTC Chair Ian Scott appeared before the Standing Committee on Canadian Heritage yesterday and Bill C-11 proved to be a popular topic of discussion. The exchanges got testy at times as Scott seemingly stepped outside of his role as an independent regulatory by regularly defending government legislation, even veering into commenting on newspapers, which clearly falls outside the CRTC’s jurisdiction. With respect to Bill C-11, most newsworthy were two comments regarding the regulation of user content and the timelines for implementing the bill if it receives royal assent.

First, Scott was asked about the regulation of user content, confirming what has been obvious for months despite denials from Canadian Heritage Minister Pablo Rodriguez. The following exchange with Conservative MP Rachael Thomas got Scott on the record:

    Thomas: Bill C-11 does in fact leave it open to user generated content being regulated by the CRTC. I recognize that there have been arguments against this, however, Dr. Michael Geist has said “the indisputable reality is that the net result of those provisions is that user generated content is in the bill.” Jeanette Patel from Youtube Canada said “the draft law’s wording gives the broadcast regulator” – in other words you – “scope to oversee everyday videos posted for other users to watch.” Scott Benzie from Digital First Canada has also said that “while the government says the legislation will not capture digital first creators, the bill clearly does capture them.”

    So all these individuals are individual users creating content. It would appear that the bill does, or could in fact, capture them, correct?

    Scott: As constructed, there is a provision that would allow us to do it as required.

While Scott continued by arguing that the Commission already has equivalent regulatory powers and is not interested in regulating user content, the confirmation that Bill C-11 currently does cover user generated content should put an end to the government’s gaslighting that it does not.

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