Social Media Regulation, Link Taxes, Copyright Extension, And More: Canada’s Attack On The Internet Has Resumed
from the oh-no,-canada dept
Last year, we wrote about the Canadian government’s efforts to push a bill regulating social media content like broadcast television and, soon after, their work on new “Online Harms” legislation that (among many provisions) would require platforms to report certain content to law enforcement and national intelligence services. These efforts and the government’s general approach to internet issues formed a pattern that led University of Ottawa law professor Michael Geist to label it the most anti-internet government in Canadian history. Both efforts stalled out in the face of the 2021 election, but now the Liberal party government, having won re-election and secured a cooperation agreement with the competing New Democratic Party, is resuming and indeed expanding its push for new internet legislation.
As Geist outlines in a Twitter thread, there’s a lot going on. The Online Streaming Act is back as Bill C-11, promoted by the government with some misleading cartoons and predictably unclear and contradictory messaging. The most prominent concern with last year’s version of the Act was that it would open the door to regulating individual social media content creators (think streamers, YouTubers, podcasters, and more) in the same framework as large broadcasting and streaming companies. The new text appears to close this door, with language that exempts such users, but the government’s claim that this means the Act would not apply to them at all is incorrect, as their content could be easily subject to regulation. This is because there are exceptions and exceptions to exceptions about what the Act covers, partly based on the question of whether content is “commercial” which, as we’ve discussed for years, is not so simple a delineation. However you slice it, individual Canadians who create content online are certainly at risk of facing obligations under the act.
Despite this, one Member of Parliament dismissed all such concerns as “YouTube talking points”, while another claimed that the government’s official policy direction to the broadcast regulator, which will not be made public until after the bill becomes law, would assuage any and all concerns on this matter and others. Obviously this isn’t very reassuring, and it contradicts the government’s claims that the text of the bill itself already precludes these problems. As was the case last year, inconsistency abounds.
There will be more to say about Bill C-11 as it works its way through committee, but for now we must move on, because it’s just one piece of the puzzle. As we recently covered, the government has also introduced a bill that would force tech platforms to pay news outlets for linking to their coverage. As we noted, this has been tried several times around the world for years, and it has never worked out — at best (or worst, depending on how you look at it), it enables a few very large publishers and broadcasters to extract a little bit of revenue while only increasing barriers to entry for smaller news outlets. And Canada’s version contains some of the most expansive language possible: it doesn’t specifically cover linking, snippets, or copies, but any action where “access to the news content, or any portion of it, is facilitated by any means”. As Geist explains:
This is certainly designed to cover linking but the broad language almost surely extends beyond linking to a specific article. Indeed, a link to the general home page of the Toronto Star, National Post, Globe and Mail or many other Canadian media sites can be said to facilitate access to news content, particularly since the provision adds that it can be just a “portion of it” and the facilitation can occur “by any means.”
Canadian Heritage Minister Pablo Rodriguez has made a point of contrasting his bill with the Australian code on the same issue. The Australian code treats three activities as making content available: reproduction of the content, providing an extract of the content (designed to target short blurbs of the stories), or links to the content. While that too is worthy of criticism (the Australian code has actually never been used), it does not cover mere facilitation of access.
Would the Supreme Court uphold a law whose effect could be to limit facilitation of access to news? Moreover, how does the entire Bill C-18 framework fit within the federal government’s jurisdiction? It isn’t broadcast, it isn’t telecommunications, and it isn’t copyright. If the government claims powers over anything involving the Internet then it believes there are no real limits on its jurisdiction.
And there will be lots more to say about that bill as well, but for now we must move on once again, because there are still more issues on the table. First, by delving deep into the government’s 2022 Budget, we learn that copyright terms in Canada are being extended to 70 years after the death of the author, up from 50. This isn’t solely an internet policy issue of course, and it was unfortunately inevitable, as it was a commitment in the Canada-US-Mexico Trade Agreement, but the details and the approach still matter. There are important decisions to be made regarding how this extension is implemented (the parliamentary committee charged with reviewing copyright law recommends that the additional 20 years of protection should require registration by rights holders), but sneaking the change into the budget (something the Prime Minister has pledged not to do with important legislation) seems designed to avoid any real scrutiny or discussion. Details will arrive in a forthcoming Budget Implementation Act, where they will similarly be buried amidst all kinds of unrelated issues.
And as if all that wasn’t enough, the Online Harms legislation is waiting in the wings as well. The government recently blew past a self-imposed deadline for introducing a new bill, but Heritage Minister Pablo Rodriguez says it is still in the works with the help of a newly formed panel of experts. Optimistically, we can hope this indicates the government is truly addressing some of the problems with the approach outlined in their technical paper last year, which would establish a massive new regulatory regime with astonishing powers and public complaints procedures that were ripe for abuse, while making no mention of protecting Canadians’ freedom of expression even as it required platforms to report them to law enforcement for their speech — but given this government’s track record, it’s hard to imagine whatever we get won’t still be riddled with dangerous problems and defended with misleading statements.
A lot could happen as each of these efforts develops, but the writing is on the wall: the government is going to try as hard as it can to regulate the hell out of the internet one way or another. With the current ruling party’s position essentially secure until 2025, it’s going to be an interesting (and dangerous) few years for the internet in Canada.