Tragicomedy in Regulating Cyberspace 🎭
Navigating the facts and fiction of Bill C-11: A closer look at the debate over the Canadian Online Streaming Act.
Photo by Yaroslav Shuraev/ Pexel.com
Foreword
On February 2, 2023, the controversial Bill C-11, the Online Streaming Act, was passed with 26 amendments by the Senate of Canada, and will be sent back to the House of Commons for final consideration after the Senate’s changes before it becomes law. The bill aims to promote the discoverability of Canadian content (CanCon) on digital streaming companies, including YouTube, Netflix and Spotify by requiring them to contribute to the creation and availability of Canadian Stories for users in Canada.
The bill will update the Broadcasting Act (which has its last major reform in 1991) and grants Canadian Radio-television and Telecommunications Commission (CRTC), the country’s independent administrative tribunal, more powers to regulate, supervise, and “update” our broadcasting system in hopes of reclaiming the way we create, discover, and consume the Canadian culture in the online streaming era.
Bill C-11 first came to my attention in November 2022 when I listened to a Big Story Podcast after the members of parliament rushed over 150 amendments in June 2022 and had already passed the bill for a debate in the Senate. I did some digging afterwards, and I discovered that there was a prominent voice calling Bill C-11 a “censorship bill” and a threat to freedom of expression online.
As someone who places a high value on the governance of cyberspace and is deeply committed to the protection of our digital rights, I firmly believe appropriate legislations and regulations are necessary to ensure equity for all users. However, I found it difficult to form an immediate opinion on this bill due to the deluge of opinions from across the political spectrum that inundated the Internet, as well as the intricacy of the bill and its connections to Senate debates and related committee meetings. With this goal in mind, I have committed myself to thoroughly research this bill to gain a more comprehensive understanding of the debate and to separate facts from fiction.
Upside down
A similar version of the bill, Bill C-10, was first introduced by the former Minister of Canadian Heritage in November 2020 but did not clear the Senate before the Parliament dissolved for the federal election in August 2021. In February 2022, the new Minister, Pablo Rodriguez, reintroduced the Online Streaming Bill, this time with amendments. Following its adoption at the third reading in the House of Commons on June 21, 2022, the Senate Committee on Transport and Communications has been authorized to pre-study the bill on May 31, 2022. After the completion of its first and second readings in the Senate in June and October 2022 respectively, Bill C-11 was eventually passed in the Senate on February 2, 2023.
The rationale is to expand the current broadcasting policy to encompass the digital realm and bring it in line with the obligations imposed on traditional broadcasters to serve the needs and interests of Canadians. Currently, CRTC policies and regulations require radio and television stations to allocate a specific percentage of their airtime to Canadian content. Specifically, television stations have to broadcast a minimum of 35% Canadian content throughout the day and a minimum of 50% during the evening; radio stations, on the other hand, must ensure that 35% of their weekly popular music selections are Canadian.
By modifying section 3 of the Broadcasting Act, which defines Canada’s broadcasting policy, CRTC will be endowed with new abilities, including the authority to impose financial penalties against online undertakings that contravene specific provisions of the Broadcasting Act or its regulations. It would also grant them the power to tailor the conditions of service and other regulatory requirements that broadcasters must comply with, and determine fairness and equity depending on the circumstances and adjust them as needed.
Some critics argue that if a song, for instance, is not well received under this new algorithm in Canada, it could be labelled as unpopular on these platforms and consequently demoted globally. However, I find it difficult to agree with this argument. After all, isn't this how algorithms typically work? While this is possible on some platforms, it's worth noting that algorithms generally prioritize popular content. Nonetheless, without the regulations outlined in Bill C-11, this song might not receive the exposure it needs to reach Canadian audiences. Regardless, the proposed regulations should ensure that Canadian content is visible to Canadians, which is the primary objective.
The bill seeks to encourage and uphold Canadian culture in the online streaming era by requiring online broadcasters to integrate discoverability provisions of CanCon in their algorithms, thus providing verified CanCon creators with more visibility. However, the CanCon verification process relies on a point system that was originally designed for legacy broadcasters like Bella Media and Rogers in the 1980s.
To qualify under the current point system, a production must earn 6 out of 10 points based on the number of key creative functions performed by Canadians. However, the lack of a clear definition of CanCon presents challenges for producers striving to meet these requirements and understand how to qualify in the future. Bill C-11 may end up creating a “two-tiered system”, where large production companies dominate the official CanCon verified space, leaving independent producers to struggle for viewership or even survival.
The fallacy of unregulated cyberspace
Despite garnering support from certain domestic industries and associations, Bill C-11 has faced a barrage of criticism from the public over privacy and freedom of expression concerns. Section 4.2 of Bill C-11 has been particularly contentious, as there is a deluge of concerns over the regulators being granted too much power to scrutinize online activities. This has led to fears that the bill could be abused and used to manipulate algorithms and censor user-generated content.
While Section 9.1(8) of Bill C-11 has specifically ruled out explicit orders from CRTC on requesting platforms to use a specific computer algorithm or source code to construct their feeds, the public remains apprehensive about its potential for algorithmic manipulation and content censorship. Despite assurance from the chair of CRTC, Ian Scott, that algorithmic manipulation is not the objective, the public outcry over the concerns has not subsided.
Some may see the bill as flawed, because it still opens a door for CRTC to indirectly pressure platforms to alter their algorithms and influence end results. It’s important to acknowledge the concerns with the bill, but we must also be careful not to conflate “regulation” with “manipulation”.
Although we should be entitled to the same level of freedom of expression and human rights online as in real life, it’s crucial to recognize that cyberspace is not entirely unregulated. Some of our online behaviours are already subjected to regulations by these platforms, meaning the content we are exposed to is already curated by a third party, like Google or Twitter. Remember these platforms are governed by guidelines and policies set up by the companies themselves and these policies can be modified at any time under the company's discretion based on their own agenda without prior consultation with the users. One day you may wake up to your videos being demonetized, because your swear words violate the new profanity policy and make your videos not advertiser-friendly enough to run ads.
While the government is trying to require these platforms to add new rules to their recommendation engines, we should be mindful that the algorithms we have today are not truly unbiased or organic. The primary objective function of these algorithms is to improve business metrics and maximize profit for the company. They have huge incentives to show what you want to see and keep you engaged on their platforms to increase their profits, making them more appealing to advertisers.
By personalizing your content, they avoid serving you content that you may disagree with or that might discourage you from continuing to stay in these privately-owned public virtual spaces. Although we may believe we are the ones choosing what we want to see, more often than not, we are being fed by what the algorithms suggest we need without realizing we’re already trapped in an echo chamber.
A double-edged sword
Bill C-11 has now passed with a “fix” by the Senate with amendments that reduce the scope of content being policed by CRTC and remove a clause in the bill that could have given the government the power to make decisions for political purposes. Section 4.1 has clarified an exclusion for “programs that are uploaded to an online undertaking that provides a social media service by a user of the service for transmission over the Internet and reception by other users of the service”, meaning the amendments will protect user-generated content and content creators from being regulated by Bill C-11.
While many of the proposed changes to the Canadian Online Streaming Act are universally welcomed, there is one addition made by the Senate at the last minute that has raised eyebrows. The new requirement mandates that platforms hosting adult content must verify users' ages before allowing access. This would mean that Canadians may soon have to provide proof of age before accessing pornography online. Although the intention behind this amendment is understandable, the lack of a clear definition for its implementation raises constitutional concerns about privacy and the potential infringement on Canadian's rights to access information anonymously under the charter and international law.
In the past, the primary means of accessing sexually explicit material were through print media and video recordings, but now the channels for the transmission of sexually explicit content have significantly diversified and expanded to various online platforms, including websites, social media, and instant messaging apps. However, this rise in online platforms has led to not only easier access to sexually explicit content but also the creation and distribution of such content.
A 2021 BBC documentary has uncovered an increasing trend of underage creators selling sexually explicit content on various platforms, including OnlyFans, Twitter, and Snapchat. Although these platforms have zero tolerance for any material promoting or featuring child sexual exploitation, their policies have failed to prevent underage users from selling and appearing in explicit videos, or from being exposed to such materials.
From a child protection standpoint, it is imperative that regulatory measures be put in place to safeguard underage children from sexually explicit content. However, the issues surrounding this topic are undoubtedly more complex than what Bill C-11 aims to address. Even if the regulator calls on the platforms to establish a legitimate age verification mechanism, or set up an age gatekeeper, similar to what we have for the websites of cannabis retailers in Canada, these solutions may not fully achieve their intended objective.
Epilogue
We are often inundated with information about how Bill C-11 may affect creators, but we rarely stop to consider how it could impact us as consumers. While the bill is intended to bring about positive changes to what can be discovered online, is it worth asking whether it will really broaden our exposure to Canadian content or inadvertently limit our access to valuable online resources?
As the Internet has become the backbone of the digital economy and a means for the transmission of information, it's not surprising that there is ongoing legislative intervention in various aspects of its use to achieve greater alignment among businesses, consumers, and policymakers. In essence, it’s crucial that we take appropriate legislative action; otherwise, we'll be leaving the regulation of digital spaces entirely in the hands of tech giants.
The Internet is a vast realm that goes beyond social media and streaming services. It's natural to become engrossed in discussions about regulations that could impact us individually, but we should remember there are deeper issues at stake and more profound matters are in play. While it’s easy to get carried away in public debates, we should stay mindful of the distinction between real legislative action and mere political grandstanding, and avoid being swayed by the sensationalism that pervades the media.
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