The Liberal Governments Proposed Regulatory Measures in the Wake of the Storming of the U.S. Capitol
Updated: Jul 5, 2021
By Alexandra Wilson. This piece is part of Digital Hate, a series by Alexandra Wilson exploring the rise of right-wing extremism online.
A poll conducted by the Canadian Race Relations Foundation (CRRF) in the wake of the January 6th, 2021 U.S. Capitol insurrection found that the majority of Canadians want to see the government take measures to prevent hate speech online . 80% of the respondents wanted to see social media companies remove racist content and hate speech within 24 hours and 49% saw hate speech and racism on the internet as a major problem . Only 25% of respondents, however, found the rise of right-wing extremism and terrorism extremely concerning, with another 23% seeing it as very concerning . According to Mohammed Hasim, CRRF’s executive director, “the fact that most Canadians see this as a problem is all the more reason why our government needs to make online hate speech regulation a policy priority” . And, while Justin Trudeau made a campaign promise in 2019 to introduce legislation that requires illegal content such as child pornography and hate speech to be removed from social media platforms within 24 hours, nothing has been done to fulfil said promise until now .
Highlights of Bill C-10
Bill C-10 was first introduced on November 3, 2020, by Minister of Canadian Heritage Steven Guilbeault . The bill is an act to amend the Broadcasting Act, allowing the Canadian Radio-Television and Telecommunications Commission (CRTC) to regulate streaming platforms such as Netflix, Crave, and Amazon Prime Video . Bill C-10 would additionally “create a new category of broadcast known as ‘online undertakings’ ... for platforms that publish programs online, including social media companies” . The goal of the bill is to moderate online hate speech and other illegal content such as content displaying child sexual abuse and intimate photos shared without consent while also helping to promote Canadian content and, if passed, would be the first time since 1991 the Broadcasting Act will have been amended . However, on April 23, 2021, section 4.1 of the bill was eliminated, alarming MPs of the opposition parties, free speech activists, and academics . The reason being that section 4.1 protected individual users who, with the elimination of the section, can be regulated by the CRTC .
Reactions to the Bill
At a committee hearing on May 3, Conservative MP and digital government critic Rachael Harder stated that “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” . Many young people have turned to social media to not only learn about events occurring around the world but also to promote causes that are important to them. While, according to Michael Geist, a law professor at the University of Ottawa and the Canada Research Chair for internet and e-commerce law, “a prior generation would express themselves by writing letters ... [the current] generation posts videos to TikTok and Instagram. It’s all speech,” making the possibility of present or future government regulation particularly unwelcome .
While the NDP have been largely supportive of the bill, “the party is backing the Conservatives’ call for the government to issue an updated Charter statement on the legislation” . NDP MPs Heather McPherson and Alexandre Boulerice issued a joint statement highlighting the need to “understand the potential impact of this Bill on regular Canadians and content creators before... [moving] forward” . As a result, on May 10, after weeks of uproar, the MPs of the four parties who make up the heritage committee (Liberals, Conservatives, NDP, and Bloc Québécois) decided to pause all work on the bill, asking Justice Minister David Lametti for a revised Charter statement .
The Department of Justice
A statement from the DOJ, notes that Clause 1 (section 2(2.1)) of the Bill states that users who are not affiliated with the streaming or social media service but upload content—specifically audio, visual, and audio-visual content (primarily textual content is excluded)—onto the platform are not subject to the Broadcasting Act . As a result, the removal of section 4.1 is largely null and void .
Social Media Companies
The social media giant Facebook has already made clear that they would welcome increased government regulation of the content posted on its platform . The global director and head of public policy for Facebook Canada, Kevin Chan, stated that the Canadian government should produce clear legislation regarding what content should be eliminated off various social media platforms . According to Chan, Facebook Canada already eliminates illegal content off their platform and prohibits ads for products prohibited from being sold in Canada. However, he believes that “having platforms make decisions… in an uncoordinated fashion with different platforms having different postures… [is] not sustainable” .
Lauren Tribe, Executive Director of OpenMedia, “a community-driven organization that works to keep the Internet open, affordable, and surveillance-free,” cautions against the elimination of section 4.1 from Bill C-10 . According to Tribe “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,” .
Director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association, Cara Zwibel, also worries that Bill C-10 could result in an infringement individual expression. . She highlights that despite the government “going through an intermediary [social media platforms]... by imposing these requirements, YouTube may decide that they have to promote content and demote other content” which can also be troublesome given the desire by social media companies such as Facebook to have further guidance on what should and should not be eliminated off their platforms .
A former commissioner of the CRTC, Peter Menzies, went so far as to say that Bill C-10 “doesn’t just infringe on free expression, it constitutes a full-blown assault upon it and, through it, the foundations of democracy” .
However, proponents of the elimination of section 4.1 like Jérôme Payette, general manager of the Association des Professionnels de l'édition musicale, says that the reinsertion of section 4.1 would allow for streaming platforms such as YouTube to avoid government regulation which could hurt Canadian artists on the platform .
Tamir Israel, a technology lawyer at the University of Ottawa, said the elimination of section 4.1 could make individual uploads “subject to regulation by the federal government,” . As the scope of Bill C-10 is so broad, “it’s hard to say how it would materialize” . Thus, “having a law on the books like Bill C-10 in its current state could pave the way for future governments to make regulations around user-generated content on the internet, even if the current Liberal government has no intention of doing so” .
Geist believes the bill could face a Charter challenge . According to Geist while “the individual platforms could have to answer for user-generated content, ... it’s [ultimately] the ‘individual speech that will be regulated’... infringing on freedom of expression rights.” He warns that if left unchecked, the bill could result in the CRTC attempting to regulate daily posts to social media .
Brandon Rigato, a Carleton Ph.D. candidate whose research focuses on digital media and the alt-right, highlights the challenges that VPNs also create for Canadian regulation of online content. “Whenever I want to watch a YouTube video that is unavailable in Canada, I can simply jump on a VPN and then I’m American, so I’m going to override any sort of moderation there is. So, if there is to be any sort of success, it must come from the platform because geographies don’t play by the same rules. The laws in place make it far easier for any type of content to be fair game in the US as there are no hate speech laws.” And the same applies to the promotion of Canadian content. Should someone prefer to exist in a world of net neutrality, they can simply hop on a VPN and bypass the promotion of Canadian content.
Another cause for concern is the prospect of over-moderation . Krishnamurthy believes that social media companies may become increasingly inclined to remove potentially illegal or hateful content without fully vetting the post in order to avoid being fined by the government . This criticism is not unfounded. Krishnamurthy’s concern could quickly become the reality as Canadian Heritage Minister Steven Guilbeault has already stated that if social media companies fail to meet the requirements put in place by the government, they could face millions of dollars in fines .
Thus, while ethical critiques of the bill must be considered, what also needs to be discussed is if Bill C-10 will even be effective in serving its purpose because at this point in time, that does not seem to be the case.
However, what is to say these regulatory measures proposed by the Bill will have any impact on the promotion of Canadian content or the regulation of hate speech online? As Ottawa law professor Vivek Krishnamurthy explains, “much of the content that led to January 6 wasn’t illegal in the United States and arguably wouldn’t be in Canada” . For example, misinformation is legal in Canada and protected under freedom of expression . As a result, the Bill in question may not do much to prevent events such as those that occurred on January 6th from occurring again. And, even if the content being published is illegal under Canadian hate speech laws, there are ways for those individuals generating this hateful content to get around government regulation and moderation. Thus, while the Broadcasting Act requires much-needed updates, Bill C-10's ability to regulate hate speech, even with the elimination of individual user protection, is limited.
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