The world is not ending. Despite everything you may have heard about Bill C-10, Canada is not turning into North Korea. Freedom of speech isn’t at risk. And the Internet is not about to become the exclusive fiefdom of the House of Commons.
Bill C-10 aims to reform the Broadcasting Act and was written to reimagine the regulation of broadcasters in Canada. The last time this took place was in 1991, but given the significant shifts in culture and technology—especially around social media—that have occurred since then, the need to revisit how broadcasters are regulated should be clear.
One of the major changes proposed in the bill is bringing online streaming and social media platforms under the regulation of the Canadian Radio-television and Telecommunications Commission (CRTC) in much the same way that traditional broadcasters are currently regulated.
This has generated significant controversy, to say the least. Much of this surrounds the regulation of user-generated content on social media platforms including YouTube and Facebook. Critics claim that the ultimate effect of the bill would be to police individuals’ posts on social media, which would lead to an “assault on freedom of expression.”
However, these concerns can largely be attributed to misunderstandings on the part of the public, sloppy legislative drafting, and poor communication on the part of the Liberal government. The most recent firestorm surrounding the bill is focused on the government’s removal of a provision from which would have exempted platforms based on user-generated content (e.g., YouTube) from regulation. The removal of this exemption would have little direct impact on end users. Indeed, another provision, which functions to protect social media end users from regulation, was upheld.
It seems that until a second Charter review of the bill is complete, and until government messaging becomes more effective, Bill C-10 will continue to be characterized as a governmental attempt to limit free expression.
But this is simply not the case.
First, it is difficult to imagine that the vast majority of user-generated content will ultimately be regulated. If there is any regulation of user-generated content, it will be the “influencers” or users with millions of followers and massive reach. These “influencers” behave more like large broadcasters than normal end users in their scope, reach, and impact. When an “influencer” posts something vaguely discriminatory, it can quickly become inflamed into promotion of hatred; when your Aunt Mildred does the same, it becomes, at worse, an annoyance. To compare the two is like comparing a velociraptor to a Toronto Raptor—it’s ridiculous. While it remains unclear whether and how the “influencer” set will be regulated, it is extremely unlikely that such regulation will apply to the majority of end users.
Second, the effects of Bill C-10 will largely be to regulate the companies that rely on user-generated content. In practice, this will likely not mean regulation of users or content, but broader regulation of corporate behavior. This is often framed in terms of companies needing to pay to promote Canadian-based art or media. This argument has merit, but regulation is needed to prevent these companies from escaping responsibility for profiting from illicit, harmful, and illegal content simply on the basis that it is user-generated. For example, pornography websites may escape liability from profiting from illegal images generated and posted by end users.
Finally, the type of authoritarian policing of end users envisioned by critics of the bill would be constitutionally prevented by the Charter and Rights of Freedoms. Section 1 of the Charter requires, among other things, that any limitation to Charter rights must be rationally connected to the legislation’s objective. It is difficult to see how the regulation of individual end users could ever be seen as rationally connected to the objective of the Broadcasting Act: regulating broadcasters. Any “assault on freedom of expression” would be effectively nullified by a Charter challenge.
In combination with the current iteration of the bill itself, it is extremely unlikely that normal end users of social media will ever fall under the scope of Bill C-10 – if it passes into law. So take a deep breath and enjoy your cat memes. It’s all good.
About the authors: Jordan Glick(L) & Aly Háji(R) are lawyers at GlickLaw, which specializes in regulatory law and professional regulation.