Is the government trying to regulate the videos you post? What you need to know about Bill C-10

TREND LINE: Communications expert on Bill C-10 Rachel Aiello and Nik Nanos break down the concerns around Bill C-10 with Elizabeth Dubois, a digital media and communications expert.

OTTAWA — Over the last few weeks, concerns have been growing over the suggestion that the federal government is leaving the door open in new legislation to allowing what you post online to be subject to federal regulations.

By removing protections for individuals’ content as part of a series of changes to federal broadcasting law, the worry is that the trendy dance clips or the latest funny dog video you uploaded to YouTube or Instagram could be controlled or monitored.

The conversation has been prompted as part of ongoing changes to Bill C-10, which is aimed at imposing regulations on social media companies and streaming giants, similar to those that traditional television and radio broadcasters are subjected to.

After sustained criticism from internet and free speech experts, as well as some members of Parliament, Heritage Minister Steven Guilbeault is promising to rework the legislation.

He’s now vowing to make it “crystal clear” that the government is only planning to go after tech giants and “professional” online audio or video such as television, movies, music, or podcasts, rather than individual Canadians’ social media posts.

So, how did we get here, and what happens now? Here’s what you need to know.

HOW THE BILL WAS FIRST PRESENTED

Bill C-10 was tabled in the House of Commons by Guilbeault in November 2020.

When it was first introduced, the focus of the bill was on bringing increasingly popular and profitable streaming giants such as Netflix, Crave, Spotify, and Amazon Prime Video under regulation by the Canadian Radio-television and telecommunications Commission (CRTC), in a similar way to traditional broadcasters. These changes would result in online platforms having to spend millions of dollars on supporting Canadian content and creators.

The main proposal in Bill C-10 is to create a new category of broadcast known as “online undertakings,” spelling out in the Broadcasting Act certain requirements for platforms that publish programs online, including social media companies such as Facebook, Instagram, and YouTube.

Other adjustments to the Act are aimed at updating the Canadian broadcasting system to take into consideration Indigenous culture, accessibility needs, and the interests of racialized communities.

The bill proposes the first substantive amendments to the Broadcasting Act since 1991. But it also makes corresponding amendments in a series of other laws, including the Canada Elections Act, the Access to Information Act, and the Copyright Act.

Bill C-10 was passed into the committee study phase, with mixed reactions among MPs, in mid-February.

WHAT CHANGES DID COMMITTEE MAKE?

Bill C-10 has been before the House of Commons Canadian Heritage Committee since then, and over the last few months MPs have heard from more than 70 witnesses and received nearly 50 written submissions from experts, stakeholders, and broadcast industry representatives expressing their views on the bill.

As is normal during the committee study, once feedback on the bill has been solicited, MPs conduct what’s called “clause-by-clause” on the legislation. This essentially means MPs and departmental experts go through each section of the proposed bill and make amendments to the way the legislation was drafted. For Bill C-10, this process began in mid April and has taken nearly 20 hours so far, with numerous amendments suggested and made over several meetings.

While numerous changes have been brought forward at committee, the core change to the bill that has become central to the current controversy was presented by Liberal MP Julie Dabrusin on April 23.

Dabrusin, who is also Guilbeault’s parliamentary secretary, moved to wipe out a section of the bill that upheld an exclusion within the Broadcasting Act for individual users of social media platforms.

Labelled “section 4.1,” the now-axed sentences spelled out that the Act would not apply to the “programs” uploaded online by a user of an online platform, meaning user-generated content would be excluded from the scope of what the CRTC could regulate.

“In other words, when you or I upload something to YouTube or some other sharing service, we will not be considered broadcasters for the purposes of the act… The CRTC couldn't call us before them, and we couldn't be subject to CRTC hearings and whatnot,” Thomas Owen Ripley, the director general of the Department of Canadian Heritage’s Broadcasting, Copyright and Creative Marketplace Branch, told the committee at the time the amendment was being deliberated.

Without this section, the concern is that the content, or “programming” people upload to YouTube for example, could come under scrutiny by the CRTC, even though it’s not been an area they’ve ventured near to-date.

A FREE SPEECH OVERREACH?

The removal of this clause before the government indicated an intent to clarify its intentions, sparked swift and damning criticism as a potential Charter of Rights and Freedoms overreach.

Michael Geist, a University of Ottawa law professor and the Canada Research Chair in internet and e-commerce law, has called it a “dangerous” attack on free speech.

He and others have warned that if left unchecked, the legislation would make it possible for the CRTC to try to regulate the countless posts made by people daily if they were able to be treated like “programs.”

While the CRTC does not currently have the powers to regulate online content in the way that’s been fretted about, OpenMedia’s Executive Director Laura Tribe said that should the regulator go down that route, it could impose the same kinds of standards around Canadian content and profanity as are expected of conventional television and radio broadcasters.

“The power that they're putting in the bill itself is immense, and … no matter what their best intentions might be, you never know what's going to happen in any future government and how they might use those powers as well,” she said in an interview with CTV News.

Geist said that the still-evolving story speaks to a broader theme with the Liberal government in their other plans to crack down on online hate speech and other harmful online content down the line.

“All of these kinds of provisions play into a kind of a general theme of a government that is becoming increasingly distrustful of the internet, and of the speech of millions of Canadians on it,” he said in a recent interview on iHeart Radio’s The Evan Solomon Show.

The Conservatives have been leading the political resistance to Bill C-10 so far, making several statements voicing their concerns about how in their view, the bill is poorly drafted and gives too much power to the CRTC “to regulate, censor and block social media users” without effective legal protections or guardrails.

“When we are in a place in Canadian history where we are using social media platforms as the public square, it is important to protect the voices of Canadians and how they express those voices in those spaces… When the government goes so far as that are regulating what people are saying or posting, it has gone too far,” said Conservative MP and digital government critic Rachael Harder at a committee hearing on May 3.

“We’re talking about individuals who are posting videos of their kids or their dog or their cat on social media platforms.”

WHO SUPPORTS THE BILL?

While the legislation has been supported by the NDP so far, the party is backing the Conservatives’ call for the government to issue an updated Charter statement on the legislation.

The statement would speak to whether the bill as drafted complies with the Canadian Charter of Rights and Freedoms.

The NDP have also suggested a pause on the clause-by-clause review until the new Charter statement is presented. The committee has yet to vote on these proposals.

In explaining their backing of the bill in general while still wanting to check in on the Charter compliance of it, McPherson said in a joint statement with her colleague and fellow heritage critic Alexandre Boulerice that: “it’s possible to both ensure freedom of expression is protected while creating a level playing field between web giants and Canadian companies.”

“It’s imperative to get this right and to understand the potential impact of this Bill on regular Canadians and content creators before we move forward,” the pair of NDP MPs said.

Others in the broadcasting industry have voiced support for Bill C-10’s aims to put more onus on online platforms to support Canadian content and to have the same responsibilities to uphold as traditional media sources do under the Act.

“What should be regulated are these trillion-dollar companies like Facebook that have been found to be pushing booze ads and cigarette ads to 13-year-olds,” said Daniel Bernhard, the executive director of FRIENDS of Canadian Broadcasting in an interview with CTV News.

GOVERNMENT BACKTRACKING?

After facing considerable criticism over his defence of the bill, Guilbeault issued a statement on May 3 promising to crystalize in the legislation protections for user-generated content, ensuring that the CRTC won't be regulating individual users’ social media posts.

"The bill is not about what Canadians do online. It is about what the web giants do not do, which is to support Canadian stories and music," he said in the House of Commons on May 4. "We have and will continue to improve the bill so that it can serve Canadian creators."

Still, the government continues to defend the legislation as a whole, suggesting its critics are "siding with web giants."

The Liberals have said the concerns about potential free speech infringements raised weren’t realistic because their intention was to target “professional” content from social media and streaming companies when they “act like broadcasters,” as Dabrusin put it during the May 3 committee meeting. However, the scope of what content the Liberals are intending to target as “professional” audio and video posts have not been explicitly defined.

“We do not want to regulate your cat videos. The CRTC does not want to regulate your cat videos,” Dabrusin told reporters after the meeting.

The Liberals have said that they removed section 4.1 because they had heard during the committee testimony from witnesses who flagged that as it was worded, platforms such as YouTube could find a loophole to not be considered music streamers even though they are one of the main places Canadians listen to music.

Guilbeault has also pointed to a separate section in the bill, section 2.1, that remains intact and states that “a person who uses a social media service to upload programs for transmission over the internet” and who is not the provider of the service, won’t fall under the Act’s scope.

WHAT HAPPENS NEXT?

At a meeting on May 6, the government outlined the wording of an amendment that it said is meant to help clarify the scope of the bill, without simply reinstating section 4.1 protecting users’ posts from being considered “programs” under the law.

Instead, the change outlines limits to the powers the CRTC would have when it comes to regulating online social media posts from users who are also not the providers of online sites, while maintaining that the regulator would still have powers related to the discoverability of Canadian content online.

There has been some initial skepticism and doubt that these changes would outright eradicate the regulation of Canadians’ online content, but that conversation continues to unfold.

Whether this proposal passes, gets changed further, or becomes one of several other proposed changes to how the bill is worded in the days ahead, will ultimately spell out what impact C-10 will have on Canadians’ online lives.

Should the opposition-backed proposal for a pause on their study until the constitutionality of the legislation is sorted pass, finishing clause-by-clause on the bill could take weeks still. From there, the controversial bill would still be several legislative stages away from becoming law.

Once the committee completes its work and reports the bill back to the House of Commons, all MPs will have an opportunity again to debate the legislation and potentially propose additional amendments. Then it’ll be voted on at third reading in the House, and moved into the Senate for a second look.

With a report from CTV National News’ John Vennavally-Rao.