Kill Bill C-10: Flawed CRTC internet police

The controversial Canadian Bill C-10 would amend the Broadcasting Act to bring internet activities under its ambit. It would give the CRTC the power to regulate activity on the internet. The bill is so flawed that it needs to be abandoned.

Until recently, the Federal government had kept the internet out of the definition of broadcasting, and away from CRTC control.

Regulate Netflix, Crave

Bill C-10 would change that. The expressed goal of Bill C-10 is to bring streaming services like Netflix and Crave under CRTC regulation much like traditional broadcasters.

It was bad enough to contemplate government legislation over the internet. In my view governments are not good in general at regulating tech of any kind. CASL, the Canadian anti-spam legislation, is the poster child for badly drafted, ill-advised legislation that causes far more harm than good.

In a past CASL blog, I’ve written that “CASL is like using a sledgehammer to kill a fly in a china shop  You may or may not kill the fly – but you will cause a lot of collateral damage along the way.”

Like CASL, Bill C-10 treats a perceived problem with a rusty sword instead of a scalpel.

The controversy escalated a few weeks ago when a section that said the Act wouldn’t apply to user generated content (such as anything you and I might post on social media or our own blogs – like this post) was removed. While the removal of that section might not allow the CRTC to regulate individual tweets or posts, it would allow regulation over content of the platform generally. Many scratch their heads on how regulation of platform content would not indirectly affect user generated content.

Free speech

That removal led to opposition by many internet experts. It has been characterized as an alarming power grab over the internet, and an assault on free speech. Professor Michael Geist, Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, has been one of the most vocal, but certainly not the only, critics.

Professor Geist wrote that the government plans to regulate both user-generated content and online apps. That means the CRTC could regulate content we post and view on platforms like YouTube and Instagram. In other words, it could influence what we see on our social media feeds.

Even former CRTC executives don’t agree with it.

A former CRTC chair and vice-chair of the CRTC said in a Globe and Mail opinion piece that:

The main aim of Bill C-10, an Act to Amend the Broadcasting Act, was originally to regulate online streaming companies such as Netflix and to level the playing field between traditional broadcasters and those services. Fair enough, but using the Broadcasting Act and granting the Canadian Radio-television and Telecommunications Commission (CRTC) sweeping powers over the internet is at best an awkward solution, and at worst an unworkable and damaging one.

Former Privacy Commissioner Ann Cavoukian has also been critical of the bill. This video interview where she warns of China-like censorship is well worth spending a few minutes to watch.

OpenMedia, which describes themselves as an “organization that works to keep the Internet open, affordable, and surveillance-free” has been highly critical of the bill. They even provide a form letter you can complete that is automatically sent to your MP.

To make matters worse, the government defense of the bill has been inconsistent, and has not addressed the issues being raised. At one point they said they were going to add language back into the bill to exempt control over individuals. But later said the regulation would apply to social media users with large numbers of viewers. But then again they backtracked on that and said social media users would not be regulated. So it is no wonder there are concerns about giving the CRTC more regulatory control, and where that might head.

Will digital platforms cut Canadian content?

Many have raised the concern that regulation of this nature might result in social media platforms cutting off Canada or Canadians because dealing with the regulations simply wouldn’t be worth their while.

The bill has just been sent back to committee to look at whether it could violate social media users’ rights.  Hopefully they will do more than just tinker with it.

I can’t summarize it any better than privacy lawyer David Fraser said in a recent tweet:

The consensus of non-partisan experts is that #BillC10 is deeply flawed. It has been mis-handled, mis-communicated and full of obfuscation. It’s time to pull the bill and go back to the drawing board.

David Canton is a business lawyer and trademark agent at Harrison Pensa with a practice focusing on technology, privacy law, technology companies and intellectual property. Connect with David on LinkedIn and Twitter.