Second Charter review stalled by Conservative filibustering
By Christopher Guly
OTTAWA – Fraught by fears of stifling constitutionally protected freedoms, Bill C-10 could undergo a second review to ensure that the proposed amendments to the Broadcasting Act are compliant with the Charter of Rights and Freedoms.
At the House of Commons Standing Committee on Canadian Heritage on Friday, Liberal member Anthony Housefather presented a motion that would ask Justice Minister David Lametti “to provide a revised Charter statement on Bill C-10, as soon as possible, focusing on whether the committee’s changes to the bill related to programs uploaded by users of social media services have impacted the initial Charter statement,” particularly as it relates to Charter section 2(b), which addresses “the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”
Although the initial Charter statement on C-10, released by the Justice Department after the bill was introduced last November, warned the bill has “the potential to engage section 2(b),” it determined that “users of social media who upload programs for sharing with other users and are not affiliated with the service provider will not be subject to regulation.”
Anthony Housefather
An amendment to the Department of Justice Act, which came into force in late 2019, requires the justice minister to table a Charter statement in the Commons for every government bill. Previously, only bills originating in the Justice Department underwent a constitutional review.
Should Housefather’s motion pass (the committee didn’t get to a vote during its two-hours on Friday), he told Cartt.ca that C-10 would become the first bill to receive an updated Charter statement.
His motion would also call on Lametti and Canadian Heritage Minister Steven Guilbeault, “accompanied by relevant department officials, to appear before the committee as soon as possible to discuss the revised Charter statement and any implications of amendments made by the committee to the bill.”
Conservative members of the committee, however, filibustered on Friday, preventing a vote on Housefather’s motion, which he will present again for the debate when the committee reconvenes on Monday at 11 a.m.
“I really tried to do something that would reach consensus and move things forward,” Housefather told Cartt.ca.
In a virtual scrum with reporters following the meeting on Friday, Julie Dabrusin, parliamentary secretary to the Heritage minister and the MP for Toronto-Danforth, blamed the Tories for stalling the bill’s advancement. “Before, we were reviewing 22 amendments, on average, a meeting,” she said. “Today, we had none.”
“The Broadcasting Act requirement for proportion of programs for discoverability has been removed for social-media companies.” – Julie Dabrusin
During the teleconference, Dabrusin emphasized that C-10 “does not restrict political expression. That is specifically protected within the Broadcasting Act,” she said, adding that the amendments only require social-media companies to report on their Canadian revenues and to invest a portion of them into the country’s cultural production funds, and “promote and make discoverable our artists.”
“The obligations for social-media companies would have no requirement for the number of stories that would have to be promoted,” Dabrusin added. “The Broadcasting Act requirement for proportion of programs for discoverability has been removed for social-media companies.”
No Canadian-content requirement will be placed on YouTube, Facebook or other social-media platforms, she stressed in an interview with Cartt.ca.
A Liberal-proposed amendment to section 2.1 of C-10 states that new regulatory powers for the CRTC would not “apply in respect of programs that are uploaded to an online undertaking that provides a social media service by a user of the service – if that user is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them – for transmission over the internet and reception by other users of the service.”
Julie Dabrusin
Dabrusin explained the discoverability requirement on social-media companies would be to “highlight” homegrown talent, such as a song by a Canadian artist on a music playlist, but not to impose the minimum Canadian content-requirement placed on Canadian broadcasters, such as the 35% Cancon requirements radio stations playing popular music must satisfy.
During Friday’s Question Period, Candice Bergen, deputy leader of the Official Opposition, accused the Liberal government of “taking away Canadians’ freedoms” with C-10 – an allegation others have made.
“This bill is not about what anyone can or cannot post online. Freedom of speech is not negotiable for our government,” Guilbeault replied during QP.
Dabrusin told Cartt.ca the Broadcasting Act provides further protection.
Section 2(3) states that the legislation “shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.”
Four of the six members of the Broadcasting and Telecommunications Legislative Review Panel who authored its final recommendations, including its chair, Janet Yale, issued a statement in support of the government’s section 2.1 amendment exempting user-generated content, which they say “provides an additional assurance” that such uploads “will not be regulated and the freedom of individuals to post content to social-media platforms will not be restricted.”
Then, in a blog posted on Friday and highlighted by Alberta Conservative MP Rachael Harder during the Heritage committee meeting, C-10 critic Michael Geist, who holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa’s Faculty of Law, warned Canadian feeds on such platforms as TikTok, Instagram and YouTube will require CRTC approval since the bill “establishes conditions to mandate discoverability of Canadian content.”
“It is not whether the CRTC regulates user-generated content, but what scope of regulation it has,” he explained in an interview. “Other countries just don’t do this.”
Geist said that even the European Union, “which has very extensive regulations when it comes to internet video, distinguishes between streaming services and video-sharing services, like TikTok or YouTube.”
“It is sad to see disinformation and fear being used in Canada at the expense of the cultural sector.” – Jérôme Payette CDCE
“The Canadian decision to try to extend the same kind of rules for Netflix, when it comes to content, as it does to millions of users on the other platforms is just not what’s done elsewhere in large measure because it’s viewed as completely unworkable.”
He offered that the CRTC might not proceed through “the door that’s been opened to that regulation,” but wonders how Canadian content will be determined under C-10.
“It’s one thing to have a Canadian content-certified production on Netflix – it’s another thing to decide whether or not my cat video is Canadian or not,” said Geist, adding that the proposed bill also raises privacy concerns. “Will Canadians be required to register location information with these companies, so they can comply with whatever the CRTC decides?”
Again, the bill’s proponents say no such dangers exist with C-10.
In a statement sent to Cartt.ca, a board member of the Montreal-based Coalition for the Diversity of Cultural Expressions (CDCE) explained the organization’s (and the bill’s) focus is on “the broadcast of professional cultural content, not cat videos or other amateur videos.”
CDCE treasurer Jérôme Payette, who is also executive director of the Association des professionnels de l’édition musicale, said that “it is sad to see disinformation and fear being used in Canada at the expense of the cultural sector.”
An amended Bill C-10 would allow the CRTC “to gain information about” and “hopefully regulate” the professional content uploaded by streaming companies, “so they contribute to the funding and discoverability of our music and culture,” he wrote.
