Minister backtracks comments on Bill C-10, says social media users 'will never' be regulated

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 — After suggesting that under Bill C-10, the Canadian Radio-television and telecommunications Commission (CRTC) could impose discoverability regulations on individuals who have a large-enough following online, Heritage Minister Steven Guilbeault has backtracked, saying that’s not the case.

In a new statement sent to CTV News late Sunday night, the minister says he used “unclear” language when he referred to people and online channels being subject to federal regulations as part of the government’s updates to the Broadcasting Act.

During question period on Monday, the minister faced more questions about the latest messaging confusion. The committee studying the bill has now called for him to testify in the coming days while the federal justice department delivers an updated assessment of whether the bill still complies with the Canadian Charter of Rights and Freedoms.

In the interview on CTV’s Question Period that aired on Sunday, the minister said more than once that while the CRTC isn’t going to be regulating everyday user’s content, the regulator could have powers related to the discoverability of online content for people whose channels have “millions of viewers,” are “generating a lot of money on social media,” and are “acting like broadcasters.”

“What we want to do, this law should apply to people who are broadcasters, or act like broadcasters. So if you have a YouTube channel with millions of viewers, and you're deriving revenues from that, then at some point the CRTC will be asked to put a threshold. But we're talking about broadcasters here, we're not talking about everyday citizens posting stuff on their YouTube channel,” Guilbeault said in the interview.

In the new statement, the minister says he “should have been more precise” in the words he used, as: “an individual -- a person -- who uses social media will never be considered as broadcasters and will not be subject to the obligations or regulations within the Broadcasting Act.

In his latest statement seeking to clarify the scope and intention of Bill C-10, Guilbeault said that: “When social media platforms produce content for Canadians to watch or listen to -- for broadcast-- the platforms will be regulated... If a social media platform contracts an individual to produce content for broadcast, it will still be the social media platform that faces regulation.”

Specifically, the regulations in question would have implications for the content algorithms would suggest for users to watch or listen to next on social media or streaming platforms such as Instagram, Tik Tok, or Spotify.

“Occasionally these suggestions would include Canadian music or Canadian television or film. It does not mean the CRTC would dictate, limit or prohibit a feed or what you can post, watch or listen to on social media. As the Internet is infinite, discoverability won’t limit the content you see on a feed – it will just add more,” Guilbeault said in his updated comments.

That said, this still would have implications for what everyday users see online.

CTVNews.ca sought further clarity from the minister’s office about whether in any circumstance an account or channel on a social media platform would be subjected to regulations in the way the minister described more than once in the CTV’s Question Period interview.

In an emailed response on Monday morning, Guilbeault’s press secretary Camille Gagne-Raynauld said that channels or accounts will large followings will not be subject to regulations.

“All regulations or financial obligations will only apply to the platforms, based on the limited and amended powers of the regulator towards social media platforms,” she said. “Accounts run by individuals still fall under the category of people using a platform. Therefore, regulations will not apply to them.”

“The minister could have been more careful using his words in order to reflect what the bill does,” said Gagne-Raynauld.

It was the minister’s suggestion that highly followed accounts, who were creating and making money off of content that could be considered broadcasting by the CRTC, would face regulations, that prompted swift reactions on Sunday from industry and internet experts, as well as some members of Parliament.

“When does internet following and therefore content uploaded by an individual make someone a ‘broadcaster’ to be regulated by CRTC?” asked former Liberal justice minister and now Independent MP Jody Wilson-Raybould.

Questions were also raised by his description of the CRTC’s new powers and role in establishing thresholds for who Bill C-10 would apply to.

In his latest statement, the minister stated that proposed changes to the way Bill C-10 is drafted would “severely limit” the regulator’s powers to regulate social media platforms. The legislation would allow the CRTC to: ask how much revenue a platform makes; ask for the platform to invest a certain percentage of its revenues into Canadian content; and to ask the platform to provide discoverability for Canadian content.

The government continues to point to a section of the legislation, which 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. The Liberals say this makes it clear that individuals would not come under CRTC scrutiny under the changes in Bill C-10.

However, the government has removed a separate section that exempted individuals’ online content or “programs” uploaded by users. This was what first prompted free speech concerns, that the minister has previously sought to clarify. Despite calls to reinstate the section, the Liberals have opted to advance a new amendment attempting to assuage fears that the audio or video content people upload would come under scrutiny by the CRTC, even though it’s not been an area they’ve ventured near to-date.

The amendment outlines limits to the powers the CRTC would have when it comes to regulating online social media posts while maintaining that the regulator would still be able to impose new regulations related to the discoverability of Canadian content online.

Guilbeault has been under scrutiny over the bill for weeks, and has faced calls to go back to the drawing board on how the government wants to make web giants pay their fair share, which was the government’s stated intention with the legislation when it was first introduced in 2020.

“The government’s story about the bill changes daily. Time to scrap it and start over,” said Michael Geist, a University of Ottawa law professor and the Canada Research Chair in internet and e-commerce law in response to the interview that aired on Sunday.

During question period on Monday, facing a series of questions about his weekend comments, Guilbeault suggested that the government has been “clear from the beginning” about the intentions of the bill, and said the legislation is backed by Canada’s cultural sector.

MPs on the Canadian Heritage Committee who are conducting the review of the draft legislation met on Monday to continue clause-by-clause study of the legislation, the process in which MPs can suggest amendments to the way the bill is worded.

Instead of getting back into suggesting changes to the legislation, MPs voted to suspend the clause-by-clause of Bill C-10 until the committee is able to hear from some additional expert witnesses on the implications of the recent changes made, as well as calling for minister Guilbeault to testify before the committee.

The committee is also asking Justice Minister David Lametti to issue a revised Charter statement and appear before the committee before MPs resume clause-by-clause. The statement would speak to whether the bill still complies with the Canadian Charter of Rights and Freedoms in light of the considerable changes it’s received since the initial Charter statement was provided.

The minister’s weekend remarks were brought up by Conservative MP and digital government critic Rachael Harder, in explaining why in her view, the committee should hold off on suggesting further changes to the bill until the implications of the changes made so far are clarified.

“We can see that the minister of heritage himself, is struggling to answer some really basic questions about this bill. And so, if he himself doesn't have a full understanding of what this legislation does and does not do, and is not able to clearly communicate on that point, then I'm confused as to why this committee would be expected to have a clear understanding of this piece of legislation,” Harder said. “I think it's incumbent upon all of us then, to seek the input from those who would be able to give us better insight, and help us come to a place of clearly understanding the parameters of this bill, and what it does.”