Front Burner - Regulating streamers and a free speech fight

Episode Date: May 5, 2021

Could your YouTube videos be subject to government regulation? A change to a bill designed to bring online streaming services under the purview of the Broadcasting Act has sparked controversy. The Logic’s Murad Hemmadi explains.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Netflix is believed to have millions of Canadian subscribers, but doesn't have to play by the same rules as Canadian broadcasters. Ever since Netflix stopped mailing DVDs to your door, do you remember that? And became this straight-up streaming service.

Ever since Spotify replaced Top 40 radio in your car. They've gotten a pass from rules that others have to follow. Others like the CBC, like Rogers, like Chorus, like basically everyone who broadcasts a TV show or a song in the public's airwaves. And rules like CanCon rules for one. a TV show or a song in the public's airwaves, and rules like CanCon rules for one. Part of the CRTC's challenge is that operators like YouTube and Netflix operate largely outside the system.

They've been granted an exemption from conventional broadcast regulation. This pass has long rankled the nerves of those conventional broadcasters and annoyed some of the people who create television, film and music in this country. They're not a special case. They're working in Canada. They're competing against our broadcasters. But it might be about to change, at least if the Liberal government gets its way through a piece of legislation called Bill C-10. Perhaps you've heard of it because it's hit some controversy in recent weeks

over a new move that could also bring user-generated content under these new rules as well. We're talking like stuff posted by regular people on YouTube or TikTok. I'm Jamie Poisson, and today The Logic's tech and policy reporter Murad Hamadi is here to explain this proposed legislation and how it's turning into a contentious debate over free expression. Hi, Murad. It's so great to have you here on the podcast. It's great to be here. So look, traditional broadcasters, I know they've had their complaints about this current regulatory arrangement for years now, right? And so why is that? So traditional broadcasters have to follow a whole bunch of rules in order to be able to do what they do,

which is broadcast shows or in the case of radio stations to sort of put music out over the airwaves through conventional channels. So for the big, the major broadcasters, the Rogers and Bells, they have to put as much as 30% of some of their revenues into backing CanCon, Canadian content. And they also have to follow certain rules about how much of that can they have to put on TV or put on their, you know, radio stations, which is why, for example, Bryan Adams is such a thing. Do you think that's why Bryan Adams is such a thing? Well, we're not going to get into my musical taste today because that is far too contentious for this. But, you know, like every time I go to Peterborough, I have to listen to patio lanterns

on repeat. And one of the reasons why that is, is because there are these rules about how much airtime or screen time Canadian content needs to get. Now, under an order, a CRTC, so the Canadian Radio and Telecommunications Commission, which is the regulator for broadcasting and telecom in Canada, the big federal regulator, in 1999, they made this ruling that basically, online services didn't have to follow all of these rules. Now, you've got to remember, you know, 1999, the Internet was sort of a thing. And suffice to say, we're talking about the blockbuster era. Yeah. I mean, I think I was watching, weirdly, the movie You've Got Mail the other day.

Weirdly, the movie You've Got Mail the other day, and I think that that's like that era where email is this really very new and exciting invention, basically. I turn on my computer. I go online. Welcome. And my breath catches in my chest until I hear three little words. You've got mail. words. Yeah, the era of like everyone everywhere having access to content at any time on demand, that era had not yet dawned. Okay, so now it's 2021. And the Liberal government has decided whether the streaming services like it or not, it's time to update. As you mentioned, this legislation is very old, it's time to modernize. So broadly,

what is being proposed here? The big idea here is that online services will now fall under the remit of broadcasting rules. And the act basically gives the CRTC, which, as I say, is the regulator in this area, the responsibility and the power to make rules that do a bunch of different things, among them ensuring some degree of what they call fairness between, you know, old world services, the TV broadcasters and radio stations and online ones, as well as some additional priorities, such as supporting content from indigenous LGBTQ plus and racialized communities, content from women. One important thing here is that legislation basically says to the CRTC, you have these new powers, you have these new sort of priorities. And then subsequent to that, once the legislation passes, there will be a directive on a set of orders

that the government formally gives the CRTC to say, here's what you need to do. The draft version of those orders includes most prominently setting up a system to require all types of broadcasters, including now online ones, to make financial contributions to the creation of Canadian content. So obviously what's being proposed here is controversial to some just on its own. We did a whole episode about this a year ago, strong arguments on both sides of the CanCon system and whether or not it should be extended to streaming services. But what I do want to get into with you more today was that there was a bit of this like completely unexpected development in recent weeks that really blew up

in controversy, and that's still playing out now. And that has to do with this change made to now include user-generated content in these rules. The uproar stems from an amendment made to the government's broadcasting bill, that is C-10, and the change would allow the country's broadcasting watchdog to regulate content uploaded to social media. So can you explain to me what on earth is going on here? Yeah, absolutely. So streaming platforms are one thing. Netflix chooses what's on Netflix, right? They have people who purchase and commission programming that goes on there.

But now think about YouTube. You or I can go and set up a YouTube account and upload things to YouTube. And lots of people do. Yeah, or I guess TikTok or Facebook, same thing. Right. I am just old enough that I am not on TikTok. You do, we do. But yeah, you know, exactly. Same thing. Any platform that allows user-generated content. And the bill in its original form had this clause or this section, section 4.1, that said the Broadcasting Act would not apply to programs or content uploaded to a social

media platform by a user of the service, so long as that user wasn't, you know, commercially linked to the platform. So, you know, Twitter broadcasts, NFL games, right? Those kinds of things are like commercial relationships. But, you know, URI, the stuff that we put up on the site, that was going to be specifically excluded. Okay. What happened at the Heritage Committee a couple of weeks ago now is the Heritage Committee is reviewing the legislation. They're doing what's called clause by clause, which is basically they vote on like each piece of the legislation. And the

liberal recommendation, the government recommendation was to remove this clause. And that clause protected individual content generators. So you and me, or Sally, who posts a video about her kids dancing or her cat, you know, doing a special trick. Those individuals were protected. Once that clause got removed, however, those individuals are no longer protected. Okay. And this decision to remove this clause, this clause 4.1, this is what has really hit a nerve with some people. And can you tell me a bit about the reaction here? What's the concern? Hello, friends. This is it means that the platforms, not the individual users, but the platforms would be subject to this CRTC regulation that we were

speaking of before. Now, I think it's very important to point out, and the sort of significance of this is debated, but there is a separate clause that says you or I are not going to be treated as broadcasters. So, you know, if the issue is about something you posted or I posted, it's not like we are going to get an order from the CRTC saying this is how you're supposed to treat it. But the platform, YouTube, could get that order. So the idea is that all of the content, whether it's submitted by a user, like a normal user, someone sitting at home, or a giant corporation that has a partnership with YouTube, whether it's submitted by a user, like a normal user, someone sitting at home, or a giant corporation that has a partnership with YouTube, now it's under the scope of the Act. And that

means that when the CRTC makes decisions, makes orders, sets out these new rules that we've been talking about, those rules will apply to the platform. And the CRTC under the Act, one thing I haven't mentioned so far is that they're getting significant new powers to impose penalties. So in theory, these platforms could be subject to penalties for user-generated content. Okay, okay. And this is what people are concerned about, that their own personal posts might now be regulated or subject to government regulation. So this is definitely something that the Conservative Party has seized on as an issue. On Tuesday, Aaron O'Toole posted this sort of jokey May the 4th be with you tweet. He's like walking down the street. I don't know if you

saw it was C-3PO. And then suddenly, this is going to be our greatest adventure. The video is blocked. And there's this message that comes on screen saying this content has been removed for violating liberal bill C-10. Did you catch that? I did see that. I have some questions about how they got the rights to use a Star Wars character in it. Yeah, yeah. I don't think they did. That would be my guess.

That would be my guess. But maybe more significantly, a former CRTC commissioner, Peter Menzies, said that, quote, granting a government agency authority over legal user generated content doesn't just infringe on free expression. It constitutes a fullown assault upon it. And so clearly there are people who feel very strongly about this, hey? There's a concern that this sort of opens the door, if you will, to a slippery slope. So the idea is if the CRTC now has the ability to set rules that would govern user-generated content, then today those rules, as the liberal government has presented them, those rules are around things like CanCon funding. They are around things like discoverability of content from underrepresented communities.

The idea, I think, is that if you open that door, other things could come through it. And those things could include more targeted political, ideological, societal strictures, limits. as is sort of the want of today's politics to restrictions on speech in China, a state that's not known to be a democracy. And if that is on the cards, it's quite a long way down the line. But I think one of the reasons why this is happening is because the liberals have certainly been talking increasingly about the drawbacks, the challenges, the problems created by social media platforms in particular and sort of online platforms in general in terms of issues like harassment, hate speech, disinformation, hate speech, these kinds of things. And, you know, absolutely you get the sense that this is a precursor for a much larger fight that may be coming down the line. A simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem.

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That's not a typo. 50%. That's because money is confusing. In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Cups. On this very specific change in Bill C-10, the government's attempts to explain or justify it, I think it's fair to say it's been a bit confusing. And I want to play for you this moment from question period this week when Heritage Minister Stephen Gilboa was challenged on the change by Conservative MP Rachel Harder, and he pretty much just changes the subject. And so here's that exchange. I put forward a motion last week at committee asking that there be another review done to this bill because it has substantially undergone change.

Experts have stated that we need a new evaluation from the justice minister to determine if C-10 respects the charter. Does the minister agree? hypocritical that the member of Lethbridge, who, given the opportunity, would not hesitate one minute to remove women's right to choose, a right protected under the Charter of Rights and Freedom, but would like us and Canadians to believe that all of a sudden she cares deeply about said charter. I have rarely seen such hypocrisy before in my life, Mr. Speaker. Unbelievable. Seriously. before in my life, Mr. Speaker. Unbelievable. Seriously, that's... Order. She's asking about Bill C-10, and he starts talking about abortion, which just seems very off topic. C-10 has nothing to do with abortion as far as I can tell. Okay, and here's Minister Stephen Gilbo again being asked by my colleague David Common on Power and Politics about why and and sorry I

realize this is a bit of a double negative here about why they've removed the exclusion for user generated content because it was important enough to put that exclusion there in the first place now it's gone why was it important in the first place to put it there why was it important in the first place to put it there? We're not interested. I mean, it's not what the bill is about. I hear you saying you're not interested, but there literally was an exclusion that was put in the original iteration of that bill, the thing that was reviewed, and then it got to committee,

and bingo, bango, bongo, the exclusion is gone. So why was it important to put it there in the first place such that now the committee has removed it? Well, the committee decides what they want. First of all, the committee hasn't even finished doing its work in terms of the amendments. So we don't have a full picture of what the bill will look like when it comes back to the House of Commons for third reading. Would you like to see the exclusion back in there? It's not necessary. If it's not necessary, why was it there in the first place? Well, you know, we've worked on this for many months.

We came up with what we thought would be the best possible bill. But bill can always be perfected. They will be amended. And it's not the purpose of the bill. So it's not required to be there because, I mean, again, this idea that the CRTC would start looking, would start doing content moderation has no basis in reality. In its 40 years of existence, it has never done that. It doesn't have the power to do that. Bill C-10 doesn't grant the CRTC the power to do that. Okay, and so help me parse that, Murad. What is this explanation for now allowing user-generated

content to be part of this bill? I think that clip is a really good illustration of the communication that the government has been doing on this issue, or lack thereof. So the initial explanation after the first sort of burst of backlash was that this is about ensuring that music on services that do both user-generated and sort of commercial content like YouTube is covered. So, you know, labels will put up music videos on YouTube. That should be subject to the act. That was always the intent of the act.

This was the initial explanation. The communication on this has sort of shifted. The minister put out a statement saying they're going to offer up another amendment to make clear that this is not about user content uploaded to social media and that that won't be considered programming under the act. So, you know, once we see what the text of that looks like, we'll be able to kind of figure out what that means in practice. But the argument is that the sort of like ways in which social media platforms act like broadcasters in that they have content on there that's more professionally produced, the argument is that was always supposed to be in scope. Okay, so it's still clear as mud,

fair? Like we're still left with some questions here, even though they're saying that it's not. We're still left with questions about whether, like, a cat video I post on YouTube would fall under this act scope. Until they actually give us legislative language, yes. All right, so I want to come back to this larger context now, because as you mentioned, the liberal government has signaled that it wants to go further here, and that it intends to legislate when it comes to big tech. And the former CRTC commissioner that we talked about earlier, when it comes to big tech. And the former CRTC commissioner that we talked about earlier, Peter Menzies, his full quote criticizing the change to Bill C-10 said that he was particularly concerned because of the context of, quote, government's musings about taking down websites. And what is he referring to here? What is he talking about?

So the liberal government's sort of big tech push, if you will, has three pillars. One is C10, which we've talked about the streaming services stuff. Two, and the next one sort of up in line is around content. So what they talk about in terms of online harms. Misinformation, hate speech well and and and this is there's a little there's a little piece of this that's kind of important because originally they were talking strictly about illegal content so content that is by law already illegal hate speech is illegal in this country although actually proving that is pretty difficult incitement to violence uh terrorist propaganda these things are already illegal but the idea is that there's another set of rules needed to ensure that in the sort of online space that these laws are enforced. And so going back to the election campaign and to Minister Guilbault's mandate letter,

which is essentially his kind of marching orders from the prime minister, there was talk of new regulations, including a requirement that platforms remove illegal content within 24 hours or face penalties. So that's what takedown effectively amounts to. Now, one of the concerns that opponents of both this specific government and this general approach to content moderation have is that where you draw the lines, you know, whether it's strictly speaking illegal or other forms of online harms, that will sort of determine how much content ends up being regulated. And, you know, there's obviously concern that the more that is in scope, the closer you get to something like speech restrictions. Okay, and Murad, you mentioned before, there were three pillars of what the liberals are pursuing here. And just very briefly, for our listeners, what is the third pillar? The third pillar is how online platforms like Facebook and Google should be required or whether they should be required to compensate news organizations for content.

Okay, so knowing that these two pillars, one on content and one on news, are coming, both super thorny issues. I have to say that trying to modernize the Broadcast Act, all the stuff around CanCon, comparatively, it seems like kind of small potatoes to me. And the government is already butting up against these kind of problems with the opposition and with communication problems. And I wonder, Murad, what does that signal to you about how the rest of this rollout might go? I think it's going to go very

badly. That is my professional analysis, not my opinion. These issues, who should pay for news? Is there a need for protection for CanCon in the year 2021? What kinds of messages and speech need to be regulated? These are fundamental issues of rights of speech. They are issues that get to the core of how technology is changing our world, of how we behave on the internet. And I think that increasingly, they are issues of sort of general politics. You know, it's not just those of us who've been extremely online for a long time, who are seeing this effect sort of the way they go about their lives. I think that was always going to make them contentious. I think that the way that these issues have been rolled out and the lack of communication on some of these issues has exacerbated that problem.

Minister Guilbeault has said in Parliament that the online harms legislation is likely to come this week. He's likely to table it this week. I imagine that will prolong this particular moment of controversy for a while to come. Okay. Well, knowing that that is coming this week, I think that we'll have lots to talk about in the weeks and months ahead. So I hope that you'll come back real soon. Thank you so much for this, Maran. Thank you so much. Okay, so that is all for today. Thanks so much for listening to FrontBurner.

We'll talk to you tomorrow. Thank you.