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Opinion May 21, 2022 4:59 PM EST

CARPAY: Canada is one step closer to the demise of free speech with Bill C-11

The OSA could open the floodgates to other laws that extend government control over what we see, hear, read, and think.

CARPAY: Canada is one step closer to the demise of free speech with Bill C-11
John Carpay Calgary, AB


Will Bill C-11, the Online Streaming Act, empower the federal government to censor controversial and unpopular speech on the internet?

Not immediately. But the Online Streaming Act (OSA) is a significant and dangerous first step towards government control of the internet.

The stated purpose of the OSA is not particularly controversial: to bring influential streaming services like Netflix, Disney, and Spotify under the authority of the Canadian Radio-television and Telecommunications Commission (CRTC).

But under the OSA, the CRTC's new authority will not be limited to these large entertainment giants. Rather, the OSA will empower the CRTC to assume jurisdiction via regulation over any "program" (audio or audiovisual online content) that is "monetizable" because it "directly or indirectly generates revenues."

The OSA would give the CRTC new powers to regulate virtually any online streaming service, also known as a "platform." It would also regulate audio or audiovisual content accessible in Canada on such a platform.

In the long run, the CRTC could end up regulating much of the content posted on major social media, even where the content is generated or uploaded by religious, political, and charitable non-profits.

Bill sponsor Heritage Minister Pablo Rodriguez has said repeatedly C-11 does not target Canadians who create and post their own podcasts and videos. The minister's claim is partially true.

The OSA specifies that users are not targeted as broadcasters, and the CRTC will not regulate videos and podcasts that do not generate revenue for the person who uploads them or owns the rights over them. However, other sections of the OSA create loopholes that would leave space for CRTC to regulate podcasts and videos. What the OSA gives with the right hand, it takes back with the left.

University of Ottawa law professor Michael Geist has closely observed Bill C-11 since the Trudeau government introduced it in February. He argues that, should the OSA become law, the CRTC can regulate everything from podcasts to TikTok videos as a "program."

As individuals, Canadians using the internet will not be regulated like broadcasters. However, the podcasts and videos that Canadians produce and upload could fall under CRTC authority as a "program." Geist states that "the potential scope for regulation is virtually limitless, since any audio-visual service anywhere with Canadian subscribers or users is caught by the rules."

The CRTC will become more powerful than ever before. It can require platforms to prioritize certain podcasts or videos, effectively de-prioritizing other podcasts and videos. The entire audio-visual world will be fair game, as though the entire globe should be subject to Canadian broadcast jurisdiction. The CRTC itself will have the power to exempt, or not, some services from its regulation.

According to Senator Paula Simons, the OSA will dramatically increase the potential for regulatory gatekeeping by giving the CRTC new power to force platforms to privilege specific kinds of "Canadian" content. Large legacy media corporations, with their established funding and production capacity already in place, will likely qualify as sufficiently "Canadian" and the OSA will have little impact on them.

Carleton University journalism and communication professor Dwayne Winseck argues that "while individual social media users will not be regulated by the CRTC, their expressions, pictures, messages, life history, etc. will now be defined as a broadcasting program and in some cases regulated as such." The OSA "punts far too much power and rule-making authority to the CRTC" by allowing the the regulator to define a wide range of human expression as "broadcasting programs." Ironically, most content produced by individual Canadians won't qualify as "Canadian Content."

Bad laws and good laws move forward incrementally, step by step. Whether the issue is slavery, taxes, the environment, abortion, capital punishment, or LGBTQ+ issues, laws usually move in the right or wrong direction step by step, over the course of years or decades.

If the OSA becomes law, life in the weeks and months thereafter will go on as before. The CRTC is not likely to start flexing its bigger muscles immediately. It will take more than just weeks or months for the CRTC to learn how to use the new powers given to it by the OSA. But human nature and the impact of power are such that it's highly likely the CRTC will eventually throw its new weight around, with demands on religious, charitable, political and other non-profit organizations to bow to CRTC decrees about their "programs." The OSA could also open the floodgates to other laws that extend government control over what we see, hear, read, and think.

Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (jccf.ca).


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