Proposed broadcast regulation legislation not ready for prime time

Not ready for prime time

In an earlier age – when water was free and you paid for music – there was some reason for a broadcast regulator.

Today: not so much, and in the expansive proposal now before Parliament, not at all.

A half-century apart, two bold federal initiatives by father and son Trudeau to influence the most popular culture we consume have spurred eerily contrasting apprehensions.

The critique of the 1970s move to regulate broadcasting was that it was forcing us to listen to and watch Canadian content. We got Trooper and The Beachcombers, no harm done. The critique of the 2020s move to regulate the internet is that it will suppress free speech. Anything but harmless.

Cultural regulation through the broadcast system, first introduced by Justin Trudeau’s father’s government, is a profound political centrepiece in Quebec. But in the rest of Canada, regulation was more widely panned for trying to decree taste through Canadian content rules and for distorting a market economy by restricting competition and manoeuvring consumption – even if one arguable, debatable byproduct has been artistry of international and domestic appeal.

Think Drake and Schitt's Creek or, in earlier times, Celine Dion and SCTV.

Let’s be real: the far simpler era of regulating a few TV channels and radio stations in any local market, even in their proliferation today, cannot compare with the internet’s abundant, globalized, border-averse transmission. It's comparing apples to orchards.

Nevertheless, Bill C-10, introduced by Pierre Trudeau’s son’s government, tries to apply the same ancient polish to the well-trodden shoes in asserting that regulation will ensure cultural production and protection.

But its proposals are sufficiently ambiguous to be profoundly worrying to anyone on social media. If the government aims to culturally shelter content, it’s a hopeless quest. If it aims culturally manage content, it’s a hazardous one.

The bill as constructed opens the door to regulate online content little differently than broadcasting. It would confer broad powers on the Canadian Radio-television and Telecommunications Commission (CRTC) to determine required production spending by internet platforms and to compel them to provide “discoverability” of Canadian content that would influence what we see in our feeds on these video and audio platforms.

More problematically, the proposed law exempts individuals from regulation, but not what they create. An exemption for user-generated content was taken out of the bill as it was being studied by a Commons committee, but the government left the regulatory framework in place. The genuine fear is that the CRTC will have the power to regulate the posts by millions of Canadians daily to TikTok, Instagram, Facebook and YouTube, among others, by determining terms and conditions to this content.

This is where free-speech fears surface. Last week the committee, even its Liberal MPs, froze its proceedings in order to get a “charter statement,” an opinion from the Justice Department on whether the law would harm free speech rights. This was quite the crawl down from earlier hubris about the principles of the legislation.

We might have been pacified if the minister in charge of the bill, Steven Guilbeault, had appeared in command of the bill. But he generated viral fear in an interview with CTV when he said everyone who acted like a broadcaster would be treated like one. (There goes my beer-league goaltending podcasting career.) Next day his office walked that back slightly by indicating individuals were not subject to the legislation. Even so nothing was said, still, about the treatment of user-generated content, the source of shame in the bill.

It hasn’t helped that Guilbeault petulantly tweeted that criticism was being fuelled by “commercial interests,” not aggrieved citizens or media lawyers or former CRTC officials or the Canada Research Chair in Internet and E-Commerce Law, Michael Geist, no slouch on these matters. (It was feared YouTube would use this as a way to evade definition as a music streaming service and evade compensating for it.)

The prime minister describes the Opposition criticism as the “tinfoil hats on the other side of the aisle,” but those critics supposedly hearing (regulated) radio stations in their fillings are simply trying to prevent Canada from derisive meme status with Trudeau as the internet's wet-blanket chaperone.

Lost in this ideological battle on cultural regulation is the potential positive side of this, particularly in a film and television hub like British Columbia with a great music scene, in creating sustainable conditions for Canadian production partly financed by bustling foreign online platforms.

Like many good ideas, this one is hampered by a bad one. Cultural subsidies, even if they come indirectly from industry, are common everywhere and hardly the stuff of troubling government intervention because the line is always drawn at cultural control.

Bill C-10's content oversight is troublingly unique to Canada – and, as a result, probably unenforceable. Still, better not to try at all. With an election possible in a few months, it is hard to see how the legislation surmounts skepticism in both Houses of Parliament to become law.

Time to take another run at this. Take the money from the Goliaths, leave the uploads from the Davids alone.

Kirk LaPointe is publisher and editor-in-chief of BIV and vice-president, editorial, of Glacier Media.

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