Canadian Heritage Committee on May 28th, 2021

[Thomas Owen Ripley, Director General, Broadcasting, Copyright and Creative Marketplace Branch, Department of Canadian Heritage]

Mr. Manly, with respect to the question of whether they would be caught under the act, the definition of “program” is broad in that it encompasses both audiovisual and audio content. It's clear that for the purposes of the act, there is no time limitation, necessarily, with respect to what may constitute a program.

With respect to the question about CAVCO certification, that answer I don't have at the tip of my finger in terms of whether there's a point in time when a video is too short that it cannot be certified as Canadian content. I don't have the answer for you on that one, at this time.

[The Chair, Liberal, Scott Simms]

Thank you.

Mr. Shields, can I get you to lower your hand if you're not asking a question unless you want back in? Oh, you want back in. Let me go to Mr. Waugh first and then to you.

Mr. Waugh.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Thank you, Mr. Chair.

I need some clarification from the department, if I could. It's really not clear in this legislation whether or not social media companies are considered to exercise programming control over the user uploads. I guess to simplify it, do social media sites have programming control?

That question is for either Mr. Smith or Mr. Ripley.

[The Chair, Liberal, Scott Simms]

I'm looking to you, Mr. Smith. Go ahead.

[Patrick Smith]

Thank you, Mr. Chair.

Thanks for the question, Mr. Waugh.

Programming control, as I indicated earlier, is a defined term in the bill. Let me get the exact wording. It means:

control over the selection of programs for transmission, but does not include control over the selection of a programming service for retransmission;

In the example of social media services, I could perhaps provide an illustrative example. There are many facets to YouTube's service. They have original programming that they themselves produce and are for all intents and purposes in a direct programming control function in that sense. They are producing it. They are commissioning it themselves, but then there is also the programming that is uploaded by users, over which they are not exercising any degree of programming control. I think that's maybe the easiest way to sort of separate the two items here.

[The Chair, Liberal, Scott Simms]

Okay.

We're going back to Mr. Shields.

[Martin Shields, Conservative, Bow River, AB]

Thank you.

I'm just following up, Mr. Champoux, on how this plays in the sense of when you're talking about the possibility of divulging trade secrets and if they're foreign companies.

I know that on certain things that would come into a country, you're looking for specific information about products that may be coming in as to where they're built, what is the chemical composition and those types of things. I think that's a real interesting concept, but if.... I'm troubled in the sense of companies wanting to agree with you on that in particular. Do you believe that's something that the major tech companies would want to divulge even though you say it could be held in confidence?

[The Chair, Liberal, Scott Simms]

I see that we're going to Mr. Smith or Mr. Ripley.

[Martin Shields, Conservative, Bow River, AB]

Mr. Champoux was the one who mentioned it. I just wondered if he wanted to respond.

[The Chair, Liberal, Scott Simms]

Okay. If that's the case, I'll look to Mr. Champoux. You have my apologies. I didn't catch that.

Mr. Champoux, would you like to interject? Then we'll go to Mr. Manly afterwards.

[Martin Champoux, Bloc, Drummond, QC]

Absolutely.

Thank you, Mr. Shields.

I don't think we need to wonder whether undertakings may dislike the act. The question instead is how do we legislate and enforce the regulations we make.

We establish requirements under the act and hope the CRTC enforces those regulations. We also have to give the CRTC the tools it needs to verify properly whether the regulations are being enforced. We've previously adopted amendments requiring that online undertakings promote Canadian programming. So we need to create tools that enable the CRTC to do the necessary verifications.

Will online undertakings willingly provide access to their algorithms and books? We can definitely assume they won't be happy about it. However, they do business within a Canadian regulatory framework, and it's up to us to establish that framework.

Will undertakings be willing to show us the resources they use to comply with the regulations we make? It will probably be up to someone else to manage that. The potential reaction of the undertakings we want to include in our regulatory framework shouldn't be a factor preventing us from regulating them as we see fit.

[The Chair, Liberal, Scott Simms]

Mr. Manly.

[Paul Manly, Green, Nanaimo—Ladysmith, BC]

Thank you, Mr. Chair.

I just want an answer to my first question to you, Mr. Ripley. I'm looking at the CRTC regulations right now. Under “What productions do not require CRTC certification?”, it lists, “Commercially released music video clips of 5 minutes or less” and “Public service announcements, interstitials, and any other productions of less than 5 minutes”. Just so this is clear, the CRTC regulations would not affect Instagram videos or audio. They would not affect TikTok videos.

We're talking about algorithms, and there is bias in these algorithms. A recent example was from May 5, the National Day of Awareness for Missing and Murdered Indigenous Women and Girls, Red Dress Day. Hundreds of people had their posts disappeared on Instagram and on Facebook. Activists and journalists who have been posting material about Palestinians, Crimea, Kashmir and central Sahara have had their posts disappeared by these algorithmic biases and automated content moderation.

We already have a serious problem with interference by corporate entities that are censoring Canadians, Canadian journalists and people who are trying to post about missing family members on Red Dress Day. The discussion around government interference is one thing, but we need to deal with this algorithmic interference by corporations who are censoring people. It's also come up a lot with people who are trying to share information about COVID. Whether we agree with it or not, people have a right to free speech. That includes all of these social justice movements that I mentioned. Black Lives Matter is another place where activists have complained about their posts being flagged or taken down by Facebook and Instagram. Twitter is doing the same thing. They are locking people's accounts and not letting them post. Facebook is doing the same thing.

Right here on Vancouver Island, we have activists who are fighting to save the last 1% of old-growth forest that is on the cutting block. There's less than 3% of that old-growth forest left. Activists who are posting are having their posts flagged by loggers and then having their accounts locked for 30 days.

We already have a problem of censorship from the corporate sector who controls this. This is not democracy. This is corporatocracy. We need to have a serious discussion about how this is being dealt with. Social media is not free speech. It is controlled by the corporations who own these platforms.

[The Chair, Liberal, Scott Simms]

Thank you, Mr. Manly.

Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you very much, Mr. Chair.

I wanted to get back to a pragmatic question. In response to Mr. Rayes, Mr. Smith stated that the numbering of the proposed amendment may not be the ideal place for it. I wanted to come back to that question. I'm wondering if Mr. Smith or Mr. Méla have a different preferred alternative in terms of paragraph numbering for this amendment.

It's not a question of substance. If it should be somewhere else with a different number, could you please let us know?

[The Chair, Liberal, Scott Simms]

Obviously, this would be a question for the legislative counsel.

I'll turn to Monsieur Méla, our legislative clerk, to shed more light on the particular issue of placement, which was brought up earlier by Mr. Smith.

Mr. Méla.

[Philippe Méla, Legislative Clerk]

Thank you, Mr. Chair.

Thank you for your question, Mr. Housefather.

I unfortunately don't see a better place to insert the wording of the amendment in question. As you know, amendments are drafted by legislative counsel. They're the ones who add the amendments to the bill where they see fit, having regard to members' demands. Personally, I don't have the necessary expertise to tell you where this wording should go.

[The Chair, Liberal, Scott Simms]

Okay.

Mr. Housefather, you mentioned Mr. Smith as well. Do you wish Mr. Smith to address your query?

[Anthony Housefather, Liberal, Mount Royal, QC]

I do, only because Mr. Smith was the one who suggested it in the first place. If perhaps he has something to say, this will probably be the only time he gets to say it. He can let us know if he has a suggested location.

[The Chair, Liberal, Scott Simms]

That may be the case.

Mr. Smith.

[Patrick Smith]

The only reason I brought this up was because of the intent. The way that proposed subparagraph 9.1(1)(j)(v) is drafted, it is intended to be a paragraph that provides flexibility for the CRTC to consider other factors. The way that the provision is written, it seems to add a lot more specificity to that section now, which would alter the intent or purpose of that subparagraph.

I had indicated that perhaps the suggested motions could be severed into two parts, but I'm really not the person who should be directing where they go.

[The Chair, Liberal, Scott Simms]

Thank you, Mr. Smith. I'm sorry—were you finished?

[Patrick Smith]

I was. Thank you.

[The Chair, Liberal, Scott Simms]

I didn't mean to cut you off. I apologize.

Yes, they do place the amendments where they fit best, according to the drafting instructions of the members, so the drafting instructions are quite important when legislative counsel deals with this.

Mr. Shields, go ahead.

[Martin Shields, Conservative, Bow River, AB]

Thank you.

Just one more time, Mr. Champoux, I appreciate the discussion on your particular point. One of the concerns I have is that maybe the big ones—maybe the biggest ones—have the ability to work with the CRTC and to provide that kind of information. My fear is that you're getting into a lot of the smaller platforms out there that creators go to. They may look at Canada and say, “We're not willing to go through this.” I'll give you an example.

We have Trikafta, which is a drug by a company called Vertex in the U.S. Because of the bureaucracy in Canada, or proposed bureaucracy, they will not yet bring that drug to Canada for cystic fibrosis patients, but it has a 90% cure rate.

Here's the other side of that. If we have a small market and we have a lot of creators who look to different types of smaller platforms, will they be willing to go through that kind of mechanism given their limited resources? We may lose out on platforms that creators could go to.