Evidence of meeting #34 for Canadian Heritage in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was crtc.
A video is available from Parliament.
3:25 p.m.
Liberal
3:25 p.m.
Green
Paul Manly Green Nanaimo—Ladysmith, BC
Thank you, Mr. Chair.
Thank you to the witnesses for appearing today. This is a very interesting debate on a very important bill. I've worked in the broadcasting industry in multiple different ways. I was a professional musician as well, so this is very near and dear to me.
To start, I want to ask Mr. Trudel if he approved of the removal of proposed section 4.1.
Then I would like to ask you, Mr. Trudel, about net neutrality and how the algorithms affect the concept of net neutrality in terms of the Canadian law on net neutrality. I understand the concepts of throttling, but how do the algorithms affect the law on net neutrality?
3:25 p.m.
Professor, Public Law Research Centre, Université de Montréal, As an Individual
I am among those who believe that section 4.1 was unnecessary. It was confusing because the act already provides all the necessary safeguards to ensure that the regulation of the broadcasting system in Canada is done in full respect of freedom of expression. In addition, the CRTC is obliged to limit its action to those undertakings whose activities and actions have a discernible impact on the achievement of Canadian broadcasting policy. Therefore, section 4.1 was rightly removed as unnecessary, in my view. In fact, I wrote about it in an article in Le Devoir.
The algorithm is interesting. Algorithms, currently, regardless of how they work, determine which types of content will be more visible than others.
Whether it's traditional broadcasting or online broadcasting, a fundamental feature of broadcast media regulation in all countries is that there are laws that necessarily balance the commercial interests of companies with other interests that must be accommodated. In traditional broadcasting, this has taken the form of rules limiting the commercial activity of radio or television stations, limiting advertising time, for example. In the case of online broadcasting networks or undertakings, it is foreseeable that the CRTC will develop new ways of ensuring that balance between commercial imperatives and other objectives that broadcasting legislation has always sought to uphold throughout Canadian broadcasting history.
What sets Canada apart from many other countries in the world is that we have a radio and communications system that is more than just a conduit for the delivery of material based on strictly commercial or business logic. So it's this type of—
3:30 p.m.
Green
Paul Manly Green Nanaimo—Ladysmith, BC
I want to just take a moment to ask Mr. Geist the same question about the concept of net neutrality and how algorithms work.
Are they are just feeding us commercial content? How is having Canadian content rules and discoverability as part of that algorithm going to be different? How do these things affect net neutrality and the law on net neutrality?
3:30 p.m.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
I appreciate the question.
First, for those who are not aware, net neutrality speaks to the need to treat all content in an equal fashion, regardless of source or destination. That's been a core principle, I thought, of successive governments, although it seemed like the heritage minister expressed some doubt on it, at least in one media interview around that issue.
Quite frankly, we just heard from Professor Trudel. He said that algorithms determine the type of content that is visible. That speaks exactly to the concerns around net neutrality and the notion that an algorithm can in fact undermine those net neutrality principles.
If it is being done at the behest of a government, which is precisely what is being proposed under this bill, the CRTC will be making those determinations. That is where the speech implications and the concerns from a net neutrality perspective arise. That is, I repeat, precisely why no country in the world does this. Nobody thinks it is appropriate to have a government make these kinds of choices about what gets prioritized or not prioritized with respect to content.
The algorithmic transparency that Professor Trudel mentioned is something entirely separate. In fact, it is something that is absolutely necessary from a regulatory perspective and is even included in Bill C-11, which the government, for whatever reason, has largely buried and hasn't moved forward.
It's not about whether we regulate algorithms; it's about whether the CRTC and the government use those algorithms to determine or prioritize or de-prioritize what we can see.
3:30 p.m.
Liberal
The Chair Liberal Scott Simms
We will now move on to our second round, everybody.
Mr. Rayes, you have five minutes.
3:30 p.m.
Conservative
Alain Rayes Conservative Richmond—Arthabaska, QC
Thank you, Mr. Chair.
Mr. Trudel, I'd like to ask you a fairly direct question, and I'd like a fairly brief answer.
You've spoke several times about the CRTC as an effective regulatory body, which will ensure that it is a bulwark against the questions of many experts regarding freedom of expression.
However, in Le Devoir this morning—you even quoted a letter you sent to the same newspaper—former CRTC officials express an opinion completely opposite to your current reading of Bill C-10. These former CRTC officials are Timothy Denton, CRTC commissioner from 2009 to 2013; Konrad von Finckenstein, CRTC president from 2007 to 2012; Peter Menzies, the CRTC's vice-president of telecommunications from 2013 to 2018; Michel Morin, the CRTC's national commissioner from 2008 to 2012; and Philip Palmer, legal counsel at the Department of Justice and senior counsel at the Department of Communications from 1987 to 1994.
Could it be that experts have opinions that are different from yours and that hold water. These are people who were on the ground.
Do these people have any credibility, yes or no?
3:30 p.m.
Professor, Public Law Research Centre, Université de Montréal, As an Individual
I don't comment on the credibility of competence of individuals.
What I see, however, is that the CRTC is governed by legislation. Its decisions throughout its history have been upheld by the courts. The most famous decision that could be invoked by people who think that the CRTC is a censorship bureau or inquisition tribunal is the decision not to renew the licence of a Quebec City radio station in 2004. The Federal Court confirmed that the CRTC properly applied the rules and did not violate freedom of expression. That has been confirmed by the Supreme Court.
3:35 p.m.
Conservative
Alain Rayes Conservative Richmond—Arthabaska, QC
You mentioning the CRTC a lot, but CRTC actors raised a red flag this morning because they feel that they're seeing a one-size-fits-all discourse in the public realm. These people, who were enforcing this legislation, say that it's not working.
Excuse me, I want to finish my comment because my next question is for another witness. I only have five minutes.
I want to show you that there are different discourses. These people have the right to speak, and they have the right to have a voice in the Canadian Parliament.
With that said, I will allow Dr. Geist to explain to us the difference between section 2.1 and section 4.1. The Minister keeps telling us that under section 2.1, everything is protected and user content will not be put at risk. At the same time, Mr. Trudel refers to section 4.1 as a source of confusion, saying that ultimately it should not have existed.
Dr. Geist, as a law professor and a great defender of freedom of expression, can you give us your perspective on that?
3:35 p.m.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
Sure, I'd be happy to.
I find it quite remarkable that we get some witnesses saying that it doesn't mean anything at all and we get others saying that it should be removed. Presumably, then, there was a problem with it.
Here's the bottom-line reality as I see it, as many other experts see it and as the department saw it, including in comments made directly to this committee and in memos written to the heritage minister that are now available under the Access to Information Act.
First, proposed new section 2.1 speaks, as we've heard, directly to regulating online undertakings. It is true that we are not going to treat a million TikTok users as equivalent to CTV or other broadcasters. They won't have to appear before the CRTC, which makes a whole lot of sense, because they are not broadcasters.
However, there's been some concern even around that. Of course we had the heritage minister mention the number of viewers or followers you have might pull you into that scope, and some creator groups have suggested that this ought to be the standard that is used. It doesn't appear to me, however, that this is what proposed new section 2.1 would do.
What proposed new section 4.1 sought to do was ensure that the programs themselves, the content, would not be treated as something potentially subject to regulation by the CRTC.
There was not significant confusion. There were, to be sure, any number of different online services that would have to go before the CRTC to determine whether the content on their service was captured by this measure. These would include some of the YouTube services. It certainly was within the realm of possibility that those would be captured.
If we are such big fans of the CRTC's getting it right, I would have thought we would have confidence that we could both safeguard and protect user-generated content and that critical form of expression and also have confidence in the CRTC to get it right in determining where the application of the law might lie.
3:35 p.m.
Conservative
Alain Rayes Conservative Richmond—Arthabaska, QC
Thank you, Dr. Geist.
I have one last very quick question to ask you.
Can we be both for net neutrality, as stated by Mr. Guilbeault, Ms. Joly, Mr. Lametti and Mr. Bains in various speeches, and support the bill as amended?
Can both of these things be stated at the same time?
3:35 p.m.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
I don't believe that the bill, as currently drafted, much less some of the plans that we know the government has talked about with respect to website blocking, is consistent with net neutrality.
We should be clear. Canada has been looked to as a leader in this space, as a leading voice on net neutrality. It even has sometimes sought to distinguish itself from the United States and others that have taken a step back from net neutrality. To pass this legislation and give the government the right to prioritize or de-prioritize speech severely undermines our credibility as a voice for net neutrality.
3:35 p.m.
Liberal
The Chair Liberal Scott Simms
Dr. Geist, thank you very much.
Now we move on to Ms. Ien.
Folks, before we go to Ms. Ien, earlier I mentioned a short health break. Do we still want one?
We do. Okay, we'll do one very shortly, after Ms. Ien.
Go ahead, Ms. Ien.
3:35 p.m.
Liberal
Marci Ien Liberal Toronto Centre, ON
Mr. Chair, thank you so very much.
Thank you to our witnesses for joining us today in what has been an excellent discussion.
I'd like to go to Ms. Yale first.
Ms. Yale, I want to pick up on net neutrality, because we've been hearing a lot about that for the past several minutes. Does this bill risk net neutrality? As pointed out, Canada has been a leader with regard to net neutrality.
May 17th, 2021 / 3:40 p.m.
Chair, Broadcasting and Telecommunications Legislative Review Panel
Thank you for the question.
Obviously, from my perspective, it does not risk compromising net neutrality. Net neutrality has to do with the ability of primarily telecommunications carriers, in their carriage function, to ensure that they don't advantage or disadvantage particular content. If you think about online Internet services that are offered, if you're a Bell or Rogers customer, you have to make sure that your online subscription to Disney isn't better serviced than your online subscription to Crave or to a different streaming service. The principle of net neutrality is that carriers should be agnostic about the way in which they make sure that content starts at point A and gets delivered to point B without interference, throttling or blocking. In our report, we were very clear that the principle of net neutrality is fundamental.
It's quite a different thing to talk about cultural policy objectives, as my colleague Mr. Trudel described. If we believe in cultural policy, we make choices, whether it's on traditional broadcasters having obligations about what shows you watch at what time of day or whether it's cable companies having carriage requirements. The fact that these are now distributed on the Internet doesn't change the fundamental question as to whether or not, for our values and cultural policy purposes, there should be a requirement—in a world, as we say in our report, of fantastic choices and borderless access to content—for Canadians to be aware of the choices that are available to them that are Canadian. I don't see that as being in any way in conflict with the principle of net neutrality. It really is a completely separate subject, in my view.
3:40 p.m.
Liberal
Marci Ien Liberal Toronto Centre, ON
Thank you, Ms. Yale.
I have another question for you. Dr. Geist has said that with the removal of proposed section 4.1, the bill now threatens user-generated content and freedom of speech. In your expert opinion, what would you say to those Canadian citizens who are concerned about that?
3:40 p.m.
Chair, Broadcasting and Telecommunications Legislative Review Panel
First I would say that there is nothing in the bill as amended, with the exclusion of proposed section 4.1, that threatens free speech.
I've tried to make it clear in my comments thus far in this meeting that users put content on, say, a social media platform. For sure that content may be under the legal definition of a “program”, but as I've said before, programs aren't regulated, so if you are a blogger or someone who makes podcasts, that's content for sure, but how is it distributed? It's distributed because you do an arrangement with Spotify or you do an arrangement with YouTube, and it's carried on those platforms.
The platforms are the online undertakings that would be regulated, not the creators of the content, whether they're users or whether they're amateurs or professionals. You are free to put up anything you want, whether you monetize it or not, whether you get advertising or subscription revenues or not. It's not covered by Bill C-10. It's the online undertakings that are, and users are not operating online undertakings. They're not regulated.
In my view, there is no threat to freedom of speech, freedom of expression or the ability to put out anything you want on any platform you like without fear that your content could be moderated or regulated in any way.
3:40 p.m.
Liberal
3:40 p.m.
Liberal
3:40 p.m.
Liberal
The Chair Liberal Scott Simms
I'm sure a lot of people will thank you, because that brings us to our break.
Folks, once you come back online, please turn your video on so that I can see that we're ready. Meanwhile I ask you to be no more than five minutes, please.
Let's suspend for five minutes.
3:50 p.m.
Liberal
The Chair Liberal Scott Simms
Welcome back, everyone.
We're now going to go straight to the next person.
Mr. Champoux, you have the floor for two and a half minutes.
3:50 p.m.
Bloc
Martin Champoux Bloc Drummond, QC
Thank you, Mr. Chair.
I'd like to ask Dr. Geist a question.
I see you have every reason in the world to oppose this bill.
With respect to the possible infringement on freedom of expression, which is the subject of our meeting today, is there any language that could be used in this bill that would reassure you and allow us to resolve the issue and continue our work?