Thank you very much, Chair.
Good morning, everyone. My name is Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada research chair in Internet and e-commerce law. I'm a member of the Centre for Law, Technology and Society. I'm appearing in a personal capacity, representing only my own views.
As you're surely aware, I've been quite critical of Bill C-11. I'd like to start by emphasizing that criticism of the bill is not criticism of public support for culture nor of regulation of technology companies. I think that public support for culture is essential and that one of the core problems in this area is that our current CanCon rules don't achieve their stated objectives.
As Peter Grant, a member of the Yale report panel and a long-time advocate for Internet regulation, recently noted, certified CanCon “doesn't have to look Canadian or be about a Canadian story.” I don't think that's how Canadians think about CanCon, and our rules should be changed to become better aligned with our policy objectives. Further, I agree with former Supreme Court Chief Justice Beverley McLachlin, who recently noted with respect to Internet platforms that there's a need for legislated transparency, accountability and rules on data governance and privacy.
Given my limited time, I'd like to focus on two main issues this morning. These are Bill C-11's regulation of user content and its overbroad regulatory approach, and the need for greater certainty.
First, I'll discuss the regulation of user content. When Minister Rodriguez introduced this bill, he stated, “we listened to the concerns around social media and we fixed it.” With respect, many of the concerns remain intact. While the proposed section 4.1 exception for user content was reinstated, proposed subsection 4.1(2) and proposed section 4.2, which together provide for the prospect of CRTC regulations on user content, were added.
The bottom line is that user content is treated as a program, and the CRTC is empowered to create regulations applicable to programs that are uploaded to social media services. Non-commercial, user-generated content may be out, but user content that generates even indirect revenue is subject to potential inclusion within the regulations. As you just heard, you don't need to take my word for it. As you know, when asked at this committee last week about whether the bill included the potential for regulating user content, the CRTC chair Ian Scott acknowledged, “As constructed, there is a provision that would allow us to do it as required”.
You may ask why any of this matters. Bill C-11 permits the creation of regulations on the presentation of programs to the public, and since it treats all audiovisual content anywhere in the world as a program, the potential regulatory scope is vast. Those regulations identify but aren't limited to discoverability. Discoverability has rightly attracted attention, since applying it to user content is both unworkable, as we don't have a mechanism to determine what qualifies, and potentially harmful to Canadian creators who may find their works downgraded globally.
The solution is obvious. No other country in the world seeks to regulate user content in this way, and it should be removed from the bill because it doesn't belong in the Broadcasting Act. In the alternative, remove all of the regulatory powers associated with user content, but leave in the potential for contributions by user content platforms.
Second, I have a few comments about the overbreadth and uncertainty with this bill, which, as currently structured, covers any audiovisual content anywhere in the world. As a Canadian Heritage department memo on the issue noted with Bill C-10, that includes video games, news sites, niche streaming services and workout videos. I recognize that this may not be the government's intent, and there is an expectation of a policy direction that creates some limits and the CRTC itself may decide to establish some others. However, I believe there is a clear need for thresholds and limitations in the legislation itself. Without it, services may regard the regulatory uncertainty—which you heard last week could take years to sort out—and block Canada, leading to less choice and higher consumer costs.
If the goal is to target the large streaming services or to exempt video games or niche streamers, say so in the legislation. While we're doing that, borrow from the European Union's approach of distinguishing between curated and non-curated services, and use that as a way of establishing more targeted regulatory requirements or exemptions.
There's certainly more to discuss, including the myriad of concerns about the CRTC: the current lack of transparency, the cloud of bias and the potential for government to overstep on CRTC decisions into program regulation. There are also the outdated CanCon rules that I noted earlier and the actual data on investment in film and television production.
I'll stop there. I look forward to your questions.