Update on Liberal Bill to Regulate Social Media

Many of you have already heard of Bill C-10, the Liberal government’s bill granting powers to the Canadian Radio-television and Telecommunications Commission (CRTC) to regulate social media content. Lots of you reached out to express concerns about the implications of this bill on freedom of expression. I share those concerns. For those wondering where things are at and what comes next, here’s some additional background and an update.

When Bill C-10 was first introduced, it wasn’t particularly controversial. It wasn’t a perfect bill, but it’s objective of promoting Canadian culture and content was at least well-intentioned. That all changed when Liberal members of the Heritage Committee – the committee tasked with studying the bill – voted to strip Bill C-10 of Section 4.1 which essentially protected user-generated social media content from government regulation.

It’s notable that the Liberal government originally saw fit to include this provision in the first draft of the bill. In fact, during the Liberal Heritage Minister’s speech on the bill in November, he said: “Our approach is balanced, and we have made the choice to exclude a number of areas from the new regime. User-generated content will not be regulated, news content will not be regulated and video games will be excluded.” Why, then, did Liberal MPs remove the very provision that allowed the Heritage Minister to claim his approach was “balanced”?

Without Section 4.1, there is no longer clear protection in Bill C-10 for social media content. Facebook or Instagram posts, YouTube videos – they could all be forced to abide by CRTC rules. To be clear, Bill C-10 doesn’t try to prescribe what those rules should be. That’s why the Heritage Minister keeps claiming his bill won’t impact freedom of expression. But since the bill would grant unprecedented power to the CRTC to regulate as they see fit, it creates the conditions for government regulation of social media, and by extension free expression online. That’s enough cause for concern for me, but you don’t need to take my word for it.

Dr. Michael Geist is a Law Professor and Canada Research Chair in Internet and E-commerce Law. He has been one of the leading expert voices raising alarm with this bill. As he told the Heritage Committee earlier this week, “no one, literally no other country, uses broadcast regulation to regulate user-generated content in this way. There are good reasons that all other countries reject this approach. It is not that they don’t love their creators and want to avoid regulating Internet companies. It is that regulating user-generated content in this manner is entirely unworkable, a risk to net neutrality and a threat to freedom of expression.”

When a new bill is introduced in Parliament, the Justice Department provides a “Charter Statement” to outline any potential effects a bill may have on Charter rights and freedoms. Since the Liberals decided to remove Section 4.1 at the Heritage Committee, Opposition MPs told the Liberals to present a new Charter Statement that took these changes into account. Our efforts were successful and the Liberals were forced to reassess the bill.

Armed with a new statement, the Liberal Justice Minister claimed Bill C-10 is “consistent with the Charter”. He admitted, however, that “the bill’s regulatory requirements have the potential to engage freedom of expression in Section 2(b) of the Charter.” In other words, freedom of expression may indeed be impacted by Bill C-10.

Emily Laidlaw, Canada Research Chair in Cybersecurity Law at the University of Calgary, responded to the new statement: “my humble legal opinion is the statement is nonsense.” She went on to point out that while the government isn’t proposing to regulate users directly, they are planning to regulate social media platforms and require them to regulate users. The effect will be that user-generated content is government regulated.

Dr. Michael Geist noted that: “From a charter perspective, the statement issued by Justice…simply does not contain analysis or discussion about how the regulation of user-generated content as a program intersects with the charter.”

Peter Menzies is a past vice-chair of the CRTC – the government agency that will regulate internet content if Bill C-10 passes. He knows the inner workings of the organization. He wrote that: To many, putting the CRTC in charge of the internet is like putting a logging company in charge of the Great Bear Rainforest.” He went on to call Bill C-10 “a national embarrassment” and urged Canada’s cultural sector to keep its distance from this bill.

Despite these experts’ concerns, the Liberals are still repeating their tired talking points that Bill C-10 is about helping Canadian artists and creators. Apparently it’s too hard for them to support Canadian cultural content while respecting the freedom of expression guaranteed in the Charter. Canadian artists deserve much better from the Liberal government than Bill C-10.

As Conservative Leader Erin O’Toole has said: “It is unfair to trample on the rights of Canadians, to try and mislead them by saying they must accept regulation of their social media in order to help artists. That is not only disingenuous but the deceit shows why they tried to sneak in this change.”

Unfortunately, the Bloc Québécois has announced they will support the Liberal government in passing this bill. If you have your calculators handy to do the vote math, you’ll quickly note this gives the Liberals the majority they need in the House of Commons to pass Bill C-10. If you live in a riding represented by a Liberal or Bloc Québécois MP, please take the time to reach out and urge them to reverse course. You can also contact Heritage Minister Steven Guilbeault directly at steven.guilbeault@canada.ca.

Bill C-10 leaves the door wide open for governments – present and future – to infringe on Canadians’ rights. In a society that values freedom of speech and expression, a bill like this shouldn’t be passed with so little regard for those freedoms.

Conservatives have been clear that, if this bill passes, a future Conservative government would repeal it. There are important concerns that are worth addressing, such as creating a level playing field between large foreign streaming services and Canadian broadcasters. But this has to be done without compromising the fundamental freedoms of Canadians.