Your free speech is at risk with Ottawa's push to regulate online content, experts warn

The federal government is facing an uproar over controversial changes to a bill that would bring videos and other content posted to social media sites like YouTube under the purview of the country's broadcasting regulator.

The changes to Bill C-10 — made at the behest of Liberal MPs on the heritage committee — would allow the Canadian Radio-television and Telecommunications Commission (CRTC) to regulate user-generated content uploaded to social media platforms, much as it regulates radio and TV content now.

The government says the changes apply only to professional content and are necessary to make wildly successful online streaming services and apps contribute to Canadian culture.

But critics argue they amount to an unjust infringement on the Charter of Rights' guarantee of free speech.

Here is what you need to know.

Canadian Heritage Minister Steven Guilbeault introduced Bill C-10 in November. The stated intent was to modernize the Broadcasting Act for an era when Canadians increasingly consume music, movies, TV shows, videos and podcasts either online or through mobile apps.

The government says the objective is to ensure that digital streaming services enjoying booming revenues from online traffic contribute to the creation, production and promotion of Canadian content.

Unlike the online platforms, Canadian distributors of broadcast content such as Rogers, Shaw and Bell are required to pay a portion of their revenue into the Canada Media Fund, an agency that funds Canadian programming. CRTC-regulated broadcasters are also required to broadcast a minimum amount of Canadian content on radio and TV.

Minister of Canadian Heritage Steven Guilbeault says Bill C-10 is intended only to regulate the actions of Big Tech companies, not individual Canadians. (Adrian Wyld/The Canadian Press)

If passed, Bill C-10 would subject online streaming platforms that operate in Canada — like Netflix, Spotify, Crave and Amazon Prime — to the Broadcasting Act, allowing the CRTC to impose similar regulations on them.

Such regulations could compel them to pay into funds that support Canadian musicians, writers and artists, or require them to make Canadian content more visible on their platforms.

In its original form, Bill C-10 exempted user-generated content posted to social media sites from the CRTC's authority.

That meant professionally-produced shows or songs streamed on Crave, Netflix, Amazon Prime or Spotify would be subject to CRTC regulation, while music videos on YouTube, posts made to Facebook or podcasts uploaded to Apple Podcasts would be exempt — because they are uploaded to those platforms by individual users.

Guilbeault himself touted these exclusions when he introduced the bill to the House. "Our approach is balanced and we have made the choice to exclude a number of areas from the new regime," Guilbeault told MPs. "User-generated content will not be regulated."

But the exclusion for user-generated content was removed by members of the heritage committee last Friday. Another amendment approved by the committee on Monday would grant the CRTC the power to regulate smartphone apps as well.

Critics say these amendments could give the CRTC the power to regulate the posts that millions of Canadians upload every day to platforms like Facebook, Instagram, Twitter and YouTube.

Michael Geist, a University of Ottawa professor and the Canada Research Chair in internet law, said those posts could be treated as "programs," which would allow the regulator to set terms and conditions associated with that content.

"The kind of speech that many Canadians engage in on these platforms is just basic, fundamental freedom of expression that does not require, and should not be subject to, any sort of regulation or regulatory oversight by a broadcast regulator," said Geist.

University of Ottawa law professor Michael Geist says bringing user-generated content under the purview of the CRTC amounts to an attack on Canadians' right to free expression. (michaelgeist.ca)

Google, which owns YouTube, has also raised free speech concerns.

"This potentially extends CRTC regulation to all audio and audio-visual content on the internet," the company said in a media statement. "We remain concerned about the unintended consequences, particularly with regards to the potential effects on Canadians' expressive rights."

Guilbeault's press secretary, Camille Gagné-Raynauld, said Bill C-10 is meant to target services that curate and commission music and video content and "professional series, films and music" — not posts made by individual Canadians.

"Where content uploaded by individual users is curated by a platform, and is deemed of significant impact, that platform, not the users, could be subject to the Broadcasting Act," Gagné-Raynauld wrote in an emailed statement.

Jérôme Payette, director general of the Association des professionnels de l'édition musicale, said YouTube would have been excluded from CRTC regulation before a recent amendment, despite being Canada's most popular online music service. (Richard Vogel/Associated Press)

Gagné-Raynauld added that safeguards have been built into the law already to protect freedom of expression.

Jérôme Payette is general manager of the Association des professionnels de l'édition musicale, a group that represents French-speaking music publishers in Canada. He said the user-generated content exclusion provided a loophole that would have allowed YouTube to avoid CRTC regulation — despite it being one of the most popular platforms in Canada for music.

Payette said the amended version of Bill C-10 will bring transparency to how Canadian content is shared on YouTube by requiring the company to report to the regulator and attend public hearings.

"What we're interested in is really having a clear picture of what's happening on YouTube concerning professional content," said Payette. "Once we know that, maybe we could have discoverability measures put in place to favour Canadian music. We can have them fund music as well."

Could regulators control what people post on social media?

According to the federal government, Bill C-10 is not meant to moderate content posted by individual users.

"[Bill C-10] doesn't allow for ... the government [or] the CRTC to do content moderation, determine topics or subjects published, or impose removal of content based on Canadian content requirements," Gagné-Raynauld said.

So cat videos and acoustic covers of Taylor Swift songs by amateur musicians are supposed to be safe.

But the CRTC would have wide latitude to decide how to implement its new powers — and concerns about regulatory overreach remain.

"If they want to explicitly regulate what what these platforms are doing, be explicit about it and be narrow about it," said Emily Laidlaw, Canada research chair in cybersecurity law at the University of Calgary. "But that's not the way [the bill] is drafted."

What about the politics of the bill?

The bill is now undergoing a clause-by-clause review at the heritage committee; the next meeting is scheduled for Friday. The Liberals require the support of at least one opposition party to pass it.

The Conservative Party has called on the government to scrap the amendments to Bill C-10.

"Conservatives support creating a level playing field between large foreign streaming services and Canadian broadcasters, but not at the cost of Canadians' fundamental rights and freedoms," said Alain Rayes, the Conservative heritage critic.

NDP Leader Jagmeet Singh said this week he's open to voting in favour of the bill.

"We will take a close look at the amendments and a close look at the bill before giving our final position," Singh said, indicating that his party supports stronger regulation of misinformation and hate speech on social media platforms.

Bloc Québécois MP Martin Champoux said the free speech concerns put forward by the Conservatives are overblown.

"The Conservatives must stop spreading false fears about the bill," Champoux said. "We must stop delaying work on C-10. The industry has been calling for a review of the law for years."