By Denis Carmel
After having written what was more of a commentary than a story yesterday, let us now report on the content of the PIAC-FRPC Conference on C-10: The Legal Issues.
I believe it was a great success – 141 people registered and 70 stayed until the “bitter” end. This could become a yearly event to replace the National Conference on Communications Law and Policy convened by the Law Society of Upper Canada every two years.
After the technical Zoom issues were ironed out, the webinar began with a presentation by Konrad von Finckenstein, past president of the CRTC and commissioner of competition who had come out in the spring during the debate raging against the present legislation.
“Our government unfortunately never realized the full challenge of the Internet. It never called a royal commission on the Internet to deal with all aspects of the challenge, in short to deal with it holistically.”
It is a point that was also favoured by John Lawford, head of PIAC, in the afternoon.
The present framework was conceived in the days when scarcity was the main issue and with the Internet the scarcity has disappeared. “The approach of Bill C-10 is still archaic and fundamentally wrong. It tries to fit the streamers into the restraints of the Broadcasting Act,” von Finckenstein said.
“It seems perverse to try to fit the Internet into a system such as the present Broadcasting Act that tries to regulate activity to produce a wanted outcome. After all the Internet, the well spring of innovation produces new disruptive outcomes that no one can foresee.”
He added that the CRTC could implement C-10 with little damage to the Internet or without triggering a trade war. He proposes nine steps to ensure this happens.
But “I would much prefer to see such steps as I have described in the legislation rather than leaving it to the discretion of the CRTC. It has a habit of being overly cautious, regulating by exemption and paying too much heed to domestic producers,” von Finckenstein concluded.
Ouch! Konrad has never been accused of sugarcoating it!
The first panel of the day was moderated by Benjamin Klass, a brilliant PhD candidate at Carleton University. The panel included lawyer and producer, Doug Barrett, lawyer and past CRTC Commissioner, Timothy Denton, top communications lawyer and author of the Canadian Broadcasting Regulatory Handbook Peter Grant and Philip Palmer, a lawyer at Justice, Canada, who worked on the drafting and adoption of the original Broadcasting Act.
The topic supposedly discussed was whether C-10’s Section 3 hit the mark as a 21st-century broadcasting policy of Canada.
But as the organizers feared, we slipped rapidly into policy issues instead of legal issues.
Two visions of the future of broadcasting and its regulations, which made for interesting interactions.
We will not go sequentially, but we will try to encapsulate the discussion.
Philip Palmer, an iconoclast and who was there at the birth of the Broadcasting Act argues for a new model rather than a replica of the old act. On the Broadcasting and Telecommunications Legislative Review Report (known as the Yale Report) “I would suggest that the panel believed the purpose of regulation to be the continued financing of the supply of ‘certified’ Canadian productions, with an emphasis on certain subsets of virtuous programing such as aboriginal or minority official language programing,” he said.
He added that “the expansion of the Broadcasting Act to Internet streaming services is unconstitutional both as beyond the powers of Parliament and as contrary to the Charter of Rights.”
Of course, Peter Grant, who was an influential member of the panel and still supports the report and Bill C-10, defended them. He seems to believe the bill will pass quickly since the Conservatives, in their platform, agree to have the streamers contribute in an equitable way to the system, which is the core of the legislation, he said.
He responded to Palmer’s claim that the bill was unconstitutional and that of the seven members, six were lawyers and that never were the issues of constitutionality and charter violations raised. Which, interjected Tim Denton, exemplifies the groupthink that prevailed in that panel.
Denton who, like Palmer, Klass and von Finckenstein, is a member of the Internet Society, Canada Chapter, in his presentation, spoke of permissionless speech: “Another basic feature is that the print or speech regime involves liabilities post facto, whereas broadcasting involves speech by permission of the state. Insofar as speech or writing has been concerned, the Internet has been in the print regime, that of permissionless speech. Now Canada seems to want to drag the Internet into speech by permission only.”
Basically, they think C-10 is an effort to squeeze the Internet into the existing regime.
Interesting discussion, no consensus, but everybody stayed in their tracks.
After lunch, a presentation by Brad Danks, CEO of OUTtv, on “Being Competitive” which explained how the international business works and how he was able to thrive outside the Canadian system through innovation, understanding the “game” and how the industry should/could benefit.
We felt he was saying the game was being played on another planet and all these discussions were … interesting.
The second panel was moderated by Jeffrey Dvorkin, who worked at the CBC and NPR, as he reminded us a few times.
The topic was: Will C-10 grant of discretion to the CRTC ensure implementation of Canada’s broadcasting policy?
The panelists included lawyer, private investigator and ex-CRTC staff Bram Abramson, ex-Rogers regulatory head Ken Englehart, Yale panel member, Monica Song and ex-CRTC staff and CEO of CCSA Jay Thomson.
The presentations were more to the point with, for example, Thomson arguing that no, Bill C-10 does not grant more discretion to the CRTC and is more prescriptive, and furthermore, it gives more discretion to Cabinet.
Abramson said: “To start I want to characterize that debate in terms of two related frames, the discovery of the Broadcasting Act and mistrust of the CRTC as an administrative agency.”
And he was more inclined to propose ways in which the CRTC could be more accountable: “The CRTC has not been great at the latter. What it does is not widely understood. Nor is its already-existing grant of discretion,” he said. “So, the first of the four sets of urgent fixes I would have brought to C-10 would have been to take a step back. I think Parliament started in the wrong place. I think it should have started by shoring up that trust.”
Englehart, for his part offered that “the main purpose of Bill C-10 is to allow the CRTC to regulate online undertakings. Of course, the CRTC could regulate online undertakings under the current legislation, but they chose not to do so by enacting the Digital Media Exemption Order. I think the CRTC was concerned that if they started regulating Netflix there would be court challenges. Parliament decided to make the matter clear by explicitly introducing online undertakings into the Act.”
The moderator did not receive many questions, so PIAC CEO, John Lawford, to stimulate the discussion referred to the Open Media* campaign that is fighting the bill along the same lines as the Conservatives. Their fundraising letter reads: “This year, Canada’s Internet has come under unprecedented attack. Under former minister Guilbeault, the Department of Canadian Heritage blindsided the people of Canada by adding a last-minute change to Broadcasting Reform Bill C-10 that would have forced all user-generated content on the Internet to be regulated by the CRTC.”
There was a short debate about the over importance politicians give to those people using social media to convey unsophisticated opinions. Someone used the words “under achievers” to describe them. There were long moments of silence, and it became obvious that the chasm between Canadian viewers and taxpayers were not taken into consideration in the backroom discussions between “stakeholders” that result in our broadcasting policy and that could be a problem if a swift passage of the bill is expected.
*A previous version of this story attributed the campaign and quote to PIAC. Lawford, however, was referring to and quoting an OpenMedia campaign.
