Philip Palmer, a former senior general counsel at the Department of Justice, recently appeared before the Parliamentary Justice Committee and told them that Bill C-10 is unconstitutional. In his submission, Palmer questioned whether Parliament has the legislative competence to make laws respecting online and on demand services.
Bill C-10 was introduced to Parliament by Canadian Heritage Minister Steven Guilbeault as part of the Liberal government’s attempt to regulate the internet via reforms to the Broadcasting Act. If passed into law it could regulate social media platforms such as Facebook, Twitter, Instagram, YouTube, and any other user-generated content online. Guilbeault has suggested that these big companies are a threat to Canada and its culture.
However, Bill C-10 has been harshly criticized by the Official Opposition. Alain Rayes, the Conservative heritage critic says that “Conservative’s 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.”
Former CRTC Commissioner Peter Menzies was more blunt saying calling out the government, Guilbeault and Bill-C10 saying , “It’s difficult to contemplate the levels of moral hubris, incompetence or both that would lead people to believe such an infringement of rights is justifiable.”
University of Ottawa law professor Michael Geist is the Canada Research Chair in Internet and E-commerce Law and is one of the foremost experts in Internet and E-commerce Law in Canada. He says that Bill C-10 would treat posts that millions of Canadians upload every day to platforms like Facebook, Instagram, Twitter, and YouTube the same 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.
Geist also dismisses Minister Guilbeault claim that the Bill will have positive economic benefits saying, it is likely to decrease investment in the short term and will cause more harm than good.
“Canadians can be forgiven for thinking that the shift to digital and internet streaming services has created a crisis on creating Canadian content. Yet the reality is that spending on film and television production in Canada is at record highs.”
Palmer, Menzies Geist and other experts have all pointed out that Bill C-10 does not specify what is to be regulated on these platforms. Additionally, the concern of the public is the possibility of the government regulating everything that Canadians say online. The national media have also criticized Bill C-10. In an interview with the CBC, Guilbeault struggled to explain the purpose of the Bill at a basic level and was skewered by the CBC’s David Cochrane for not being able to defend its provisions.
The National Post claims Bill C-10 is “a full-blown assault on free expression, writing.” “Free speech is a pillar of democracy and should not be taken away from Canadians”.
Guilbeault’s press secretary, Camille Gagné-Raynauld later responded to the criticisms of Bill C-10 on behalf of Guilbeault releasing a statement saying that 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,” says Gagné-Raynauld.
Guilbeault and the government does not deny that the CRTC would have wide latitude to decide how to implement its new powers — and concerns about regulatory overreach remain.
Emily Laidlaw, Canada research chair in cybersecurity law at the University of Calgary says that , “If they want to explicitly regulate what these platforms are doing, be explicit about it and be narrow about it,” “But that's not the way [the bill] is drafted.” On this point Geist agrees saying that bringing user-generated content under the purview of the CRTC amounts to an attack on Canadians' right to free expression
