Industry Committee on Feb. 24th, 2020

[Luc Boivin]

Presentations were made regarding the measures. One of the measures we are advocating is, of course, the one related to the retailer code. It is a matter of framing practices to ensure that, with regard to supply management, there is control throughout the chain.

We are subject to price controls with respect to our raw material, but once we begin to sell our products in the marketplace, we face a highly consolidated retail market. This is not regulated. Similar measures have been put in place in England, among others, which have been successful and have helped control the profit margins of dairy processors.

Another important point we want to highlight is that we have been sacrificed on the altar of international trade. The government needs to take action.

[The Chair, Liberal, Sherry Romanado]

I'm sorry, Mr. Boivin, but your time is up.

Our next speaker, whom I skipped by mistake—my apologies—is Mr. Erskine-Smith.

You have the floor.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

Professor Geist, thanks for joining us.

We heard testimony earlier that maybe it wasn't our idea to extend copyright, that we didn't want it, but accepted it in consideration of the totality of the agreement and its benefits overall.

I take it that you would have us make a recommendation that this committee has previously made, which is that we should encourage the government to take the 30-month period to create a registration framework for the extension of 20 years. Is that right?

[Dr. Michael Geist]

That's right.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I'm less familiar with the cultural exemption concerns that you raise. Are there any particular recommendations that you think ought to be made by this committee?

[Dr. Michael Geist]

Listen, I think it's quite clear that there is a desire to have the cultural exemption in place, and I understand why, but I raise it to ensure that members of Parliament better recognize the costs associated with the cultural exemption, particularly in the current environment that we're facing.

Within, let's say, the digital chapter, there are provisions that could be triggered. As I've mentioned, there are clearly proposals, such as in the Yale report, that could be triggered. I've seen some that I think mistakenly think this is almost like a “get out of jail free” card, that you can do whatever you like from the perspective of the Canadian cultural sector.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

So it was preserved, but at some cost.

[Dr. Michael Geist]

At a significant cost, yes.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

When we talked about the digital chapter, I think you highlighted something that Ms. Rempel Garner had highlighted as well, namely, the concerns about data localization rules.

When I read article 19.12, I think it would have been preferable if it mirrored article 19.11, which at least allows us to limit cross-border data flows where it's in the public interest to do so. We don't see any exception or limitation on the restrictions on data localization.

When we look at the cross-border transfer of information by electronic means, is it any comfort at all that we can restrict cross-border data flows in the public interest, especially in reference to article 19.8, which deals with privacy protections?

[Dr. Michael Geist]

I think it's of limited comfort.

When this kind of provision was being negotiated as part of the TPP—indeed, they're similar provisions, although this one is even more limited, as I mentioned—a U.S. group, Public Citizen, did a study on the kind of comfort that the public interest exception provides. They took a look specifically at WTO cases where that language was used. They found, I believe, in 43 out of 44 cases that attempts to use public interest as the exception were defeated.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

That's interesting.

[Dr. Michael Geist]

The practical effect, at least under WTO jurisprudence, has been that it has not provided much comfort.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

One note of optimism may be the fact that there is in 19.8 a consideration specifically of the public interest related to privacy, but I take your point on the history of it.

When we talk about safe harbour—and you have previously written critically of the copyright extension, but in support of embracing safe harbour rules—I generally side with you in that we shouldn't be talking about imposing liability for content that isn't illegal in the first place.

My worry when I read 19.17, I think it is.... Perhaps I can read it out a little bit here:

...no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms...except to the extent the supplier... has, in whole or in part, created, or developed the information.

I don't expect Facebook, Google or whatever online company is hosting third-party content, to be developing and creating content. Otherwise, of course, liability would attach. My concern is with the promotion of content.

I can list off any number of illegal kinds of content—defamation, harassment, hate speech, disinformation in the context of elections, counterfeit goods that are advertised for sale. Shouldn't there be some liability? Is the liability limited to the criminal law, and would that be the way around the safe harbour provision?

[Dr. Michael Geist]

I think there are a few things. One, where we're talking about unlawful content, and one of the platforms is made aware of it, I think the answer is yes, there ought to be liability for failure—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Would this provision get in the way of that in any way?

[Dr. Michael Geist]

I don't think it gets in the way of illegal content. Part of the problem is that fake news isn't necessarily illegal content, although we can recognize the harm—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Sure.

[Dr. Michael Geist]

—and so there are questions about how to address or deal with some of those kinds of issues.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

But is that only because it's covered by the criminal law and there's an exception at paragraph 4 of article 19.17 in reference to the criminal law?

[Dr. Michael Geist]

The potential applicability here does still cover illegal content.

I think it's important to recognize that this language didn't come out of nowhere, right? It came out of U.S. legislation—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Yes.

[Dr. Michael Geist]

—known as the CDA, section 230(c). I don't think we have to guess a lot about how that kind of provision can and will be used. There are two decades of jurisprudence in the United States to see precisely how it's used, and it has been used to grant a very broad—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

So if I want a law, for example, that says where there is illegal content at a minimum for, say, advertising counterfeit goods—that seems like an obvious thing that shouldn't happen—so where goods are advertised that are counterfeit and Facebook profits from that ad, or YouTube profits from that ad, I would like them to disgorge that funding or those profits in some fashion. I would like a law in place to ensure that happens and would not be precluded by 230 or precluded by CUSMA.

[Dr. Michael Geist]

I think there are a couple of issues there. One is whether we're talking about illegal content to the extent to which you have legislated to render this kind of content illegal, and it sustains a potential Charter challenge, then you're okay on that front.

Bear in mind that you switched quickly to say it's a Facebook ad. Oftentimes what we are talking about here within this context, though, isn't necessarily the advertising that Facebook might be profiting from, but rather the third party content that is posted by users. That's where a lot of the attention has to be focused.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

But—