Last year, I wrote about Bill C-10, which was concerned with “compelling companies like Netflix Inc and TikTok Inc to finance and promote Canadian content.” The Bill was controversial, not least because the law could be read to target content produced on user-driven sites (TikTok, say) targeting individual content creators rather than the tech giants and subjecting them to discoverability requirements and penalties. One of the biggest concerns was free expression. This law could be read to grant Canada’s telecom and broadcast regulator (the CRTC) power to regulate the content of individual expressions, something that—to many of us—presented constitutional and regulatory concerns. As Professor Michael Geist of the University of Ottawa stated upon the tabling of the bill, it “hands massive new powers to Canada’s telecom and broadcast regulator (the CRTC) to regulate online streaming services, opening the door to mandated Cancon payments, discoverability requirements, and confidential information disclosures, all backed by new fining powers.”
Bill C-10 died because of the election, and some of us thought that would be the end of this. Not so. Yesterday the Trudeau Government re-introduced the same pig with different lipstick: Bill C-11. Professor Geist has led the charge on this and I would direct you to his site for deep analysis of the Bill, but for now, it’s enough to say that this Bill is generally not an improvement on its predecessor, at least from the perspective of the power it vests in the CRTC. Its central problem is hinging the entire controversy of the Bill on a clause which allows the CRTC to decide when and to whom the Act applies, subject to some exceptions. This should be, if not constitutionally problematic, politically so: this is the power to expand the scope of the law to a large class of individual users, allowing the Government to evade responsibility for this controversial choice in Parliament. In other words, the Government still has power to regulate user generated content and subject that content to discoverability regulations and users to potential penalties. It has this power despite the Bill representing that it does not.
Let’s take a look at the Backgrounder for the Bill. The Government says that this Bill solves two problems with Bill C-10. First, “it captures commercial programs regardless of how they are distributed, including on social media services.” Second, “the proposed bill is also clear that the regulator does not have the power to regulate Canadians’ everyday use of social media, including when they post amateur content to these services.” It seems, then, that the proposed bill does not apply to Canadian users or individual creators. And the opening part of the actual text of the Bill sounds promising. It says that it must be construed and applied in a manner that is consistent with “(a) the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.” Section 4.1 (1) of the Bill sounds even better: “This Act does not apply in respect of a program that is uploaded to an online undertaking that provides a social media service by a user of the service for transmission over the Internet and reception by other users of the service.” This seems to deal with the problem so many of us had with Bill C-10 when it purported to extend its scope to the average TikTok user.
This sounds like a real improvement. But the promise fades when we consider the CRTC’s new regulation-making power. A regulation is a form of law—the power to make regulations is given to an agency by the elected legislature. This isn’t itself inherently problematic, and of course regulation-making is widespread today. But this goes further. Section 4.1(2) of the Bill basically “takes back” s.4.1(1), when it gives the CRTC power to make regulations governing “programs” despite the seeming exclusion of user content. This is something approaching–if it isn’t already–a Henry VIII clause, which allows an agency to amend a primary law (h/t Leonid Sirota for raising this point). If not constitutionally problematic, it is politically so. It allows the Government to evade responsibility for the potentially vast scope of this law.
This is the controversial clause. It is cabined by a few factors, namely s.4.2 (2) (a) which directs the CRTC to consider “the extent to which a program, uploaded to an online undertaking that provides a social media service, directly or indirectly generates revenues” as it makes regulations. As Professor Geist notes, the target here appears to be YouTube music. But there are many other types of user-generated content that could conceivably fall under the scope of the law, including user generated TikTok videos or podcasts that indirectly generate revenue and have other features that fall within the scope of the regulation-making power.
The end result, as Professor Geist says, is that this technical change “would likely capture millions of TikTok and YouTube videos.” In his post on the Bill, he summarizes the wide berth of power granted to the CRTC in Bill C-11:
Views on the scope of this regulatory approach may vary, but it is undeniable that: (1) regulating content uploaded to social media services through the discoverability requirement is still very much alive for some user generated content; (2) the regulations extend far beyond just music on Youtube; (3) some of the safeguards in Bill C-10 have been removed; and (4) the CRTC is left more powerful than ever with respect to Internet regulation.
Taking into account alternative views on the scope of the Bill, I agree. The Bill basically downloads the real decision-making a level down. Rather than the Government taking responsibility for regulation user content in this fashion, it will grant it to the “independent” CRTC. If there is controversy about a future regulation, the Government can shift responsibility to the CRTC. The regulation-making just reinforces this, granting a power to the CRTC to expand the scope of the law and to make the decisions Parliament should be making in plain view.
Others will differ. They could say that I am discounting the CRTC’s own democratic process. Or, one might say that the statute cabins the regulation-making power, and that the income-generation factor is one, non-exhaustive factor. Maybe they’d be right. But I think I could grant all of this and still maintain that the Bill purports to grant significant power to the CRTC to apply the law to users, something the Backgrounder suggests it does not. This disparity concerns me.
It is important here to address another possible response. Much is made in administrative law about the need to empower regulatory experts to make decisions in the public interest. So far as this goes, the device of delegation could be useful. But it is not always and everywhere so, and there are differences in kind. A delegation to the CRTC here may be justifiable, but the Government should take responsibility for the choice to regulate user content. Presumably, this should be something that—if it needs to be addressed—should be addressed in the primary law, rather than by the CRTC in its own wide, relatively unconstrained discretion. In other words, if Youtube music is the problem, the law should be appropriately tailored. And the use of something like a Henry VIII clause is ill-advised, to say the least.
The basic problem here might be more fundamental. I am candidly not sure what the need for this Bill is, particularly the targeting of user content. It seems the regulatory goal here may be to subject the Act’s requirements to users who generate a certain income, for example, and among other things. If that is the regulatory goal, why is the CRTC regulatory mechanism desirable here? If the Government wants to make this policy choice, why can’t it do so in the plain view? Perhaps I simply do not understand the CanCon-motivated reason why this particular power is justified. I’m open to someone explaining to me what I might be misunderstanding here—perhaps something specific to this regulatory context.
Nonetheless, I think there are real democratic tradeoffs to the use of this sort of regulation-making power, and more specifically the deflection of responsibility to the CRTC. This is a controversial application of a regulatory law—with penalties—to a potential huge class of users. Not only does the Government purport not to do this, but it does it here with a delegation to the CRTC. If later challenged, the Government can simply defer to the CRTC. I do not see this legal device—and this Bill—as any better than Bill C-10.
Double Aspect 