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A Fatally Flawed Gateway to Government Censorship

Jay Goldberg: Author

Canadian Taxpayers Federation

SEPTEMBER 2022

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Contents

About the Canadian Taxpayers Federation Foreword Section I: Newspaper Columns Free speech cant be filtered through a bureaucratic superstructure Freeland tweet makes the case against online censorship Censorship deja vu on Parliament Hill The Trudeau government is on a quest for censorship Section II: Jay's Testimony Section III: Online Government Censorship Report Foreword Introduction

What is Bill C-11?

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Why Bill C-11 Isnt Needed S| Core Provisions and Key Concerns 36 Conclusion 53 Section IV: Podcast Transcript 55

About the Canadian Taxpayers Federation

The Canadian Taxpayers Federation is a federally incorporated, not-for-profit citizens’ group dedicated to lower taxes, less waste and accountable government.

The CTF was founded in Saskatchewan in 1990 when the Association of Saskatchewan Taxpayers and the Resolution One Association of Alberta joined forces to create a national organization. At the end of 2020, the CTF had over 235,000 supporters nationwide.

The CTF maintains a federal office in Ottawa and regional offices in British Columbia, Alberta, Prairie (Saskatchewan and Manitoba), Ontario, Québec and Atlantic Canada. Regional offices conduct research and advocacy activities specific to their provinces in addition to acting as regional organizers of Canada- wide initiatives.

CTF offices field hundreds of media interviews each month, hold press conferences and issue regular news releases, commentaries, online postings

and publications to advocate on behalf of CTF supporters. CTF representatives speak at functions, make presentations to government, meet with politicians and organize petition drives, events and campaigns to mobilize citizens to effect public policy change.

Any Canadian taxpayer committed to the CTF's mission is welcome to join at no cost and receive emailed Action Updates. Financial supporters can additionally receive the CTF’s flagship publication The Taxpayer magazine, published three times a year.

Taxpayers

The CTF is independent of any institutional or partisan affiliations. All CTF staff, board members and representatives are prohibited from donating to or holding a membership in any political party. In 2019-20, the CTF raised $4.8 million on the strength of 39,792 donations. Donations to the CTF are not tax deductible as a charitable contribution.

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Canadian Taxpayers Federation 901 11th Avenue Regina, SK S4P OJ8

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Foreword

The government wants the power to regulate the internet. It wants to make it easier or harder for you to find content based on whether the government views the content as Canadian. The government says it will use the new powers it seek through Bill C-11 to make sure Canadian content shows up more prominently, but allowing the government to filter what we see and share online could be a dangerous gateway to government censorship.

Through Bill C-11, the government proposes to give these new regulatory powers to the Canadian Radio and Telecommunications Commission (CRTC). It would be up to the CRTC to decide what content qualifies as Canadian, with content being made more or less accessible online based on that standard.

Until now, Canadians have been against the idea of the government regulating the internet, other than to enforce laws that target criminal activity, such as terrorism or child pornography. Bill C-11 is not about criminality it is about empowering bureaucrats to play a role in deciding what comes up and what gets buried on Canadians’ social media feeds and streaming platforms. Many rightly question whether the government is even competent enough to decide what should be considered to be Canadian content. As of now, the legislation gives the CRTC the power to regulate the internet, with rules and instructions about how far the CRTC should go in regulating the internet to follow only after Bill C-11 is passed into law. That's asking for a lot of trust from Canadians.

Bill C-11 would impact Canadians’ ability to hold the government to account. If the government has the power to filter and prioritize what Canadians are able to see and share online, the risk is that the government could use its new regulatory power to bury unfavourable content and promote content that is friendlier to the government. This raises very serious accountability issues.

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The Canadian Taxpayers Federation's core mission is to advocate for lower taxes, less waste and more accountable government. Bill C-11 would make government less accountable, which is why the CTF is putting out an eBook outlining the dangers of the government's censorship legislation.

This eBook contains several components.

First, it includes four newspaper columns written by the CTF's Ontario Director, Jay Goldberg, outlining the pitfalls of the government's censorship efforts.

Second, it includes the testimony Goldberg gave before the House of Commons Standing Committee on Canadian Heritage outlining the CTF’s concerns with Bill C14,

Third, it contains the text from the CTF’s report on Bill C-11, which was written with the advice and input of Dr. Michael Geist of the University of Ottawa.

Finally, it contains a transcript of a podcast in which our Federal Director, Franco Terrazzano, interviews Ontario Director Jay Goldberg and Dr. Geist about the C-11 report.

For those who want to get the key points quickly, the newspaper columns and interview transcripts are a great introduction, while the report dives into the deep detail of the issue.

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Section I: Newspaper Columns

Summer 2021

Free speech can’t be filtered through a bureaucratic superstructure

Free speech ensures that Canadians have the right to tell governments when they're wrong. While this may be unpleasant for governments, it is absolutely vital in a democratic society.

Rather than strengthening Canadians rights, the Trudeau government wants to filter free speech through the lens of a bureaucratic superstructure.

There can be no doubt that there are bad things on the internet. Child pornography, hate speech, and other such crimes are detestable. But these crimes are already labelled as such through the criminal code with lengthy prison sentences for those who are convicted.

If the federal government wants to review these laws, that’s a discussion worth having. However, it is an entirely separate issue.

The government wants you to believe it’s targeting hate speech, when in reality it's targeting free speech.

Experts say that the Trudeau government's new proposed law would fundamentally weaken free speech in Canada and would require a costly bureaucratic superstructure to enforce all of the government's new rules.

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As University of Ottawa Law Professor Michael Geist put it, the government seems to treat “freedom of speech as a danger to be constrained’ rather than a right to be defended.

The planned legislation would create four new government bodies, which would

become the foundation of a costly new bureaucratic superstructure.

The new bodies include a Digital Safety Commission, led by a commissioner appointed by the federal cabinet, and an Advisory Board composed of seven members chosen by the Minister of Heritage.

The commissioner and Advisory Board would be tasked with identifying content

that should not be kept online and would refer that content to a new tribunal.

Does anyone really believe a commissioner appointed by cabinet and an Advisory Board appointed by the Minister of Heritage would be completely impartial in identifying what should be removed online?

Of course not.

If these new bodies were created today, all eight bureaucrats would be appointed by the Trudeau cabinet. Does that sound fair, balanced, and neutral?

Some of the powers that would be handed to the new tribunal are reminiscent of the Ministry of Truth in George Orwell's 1984.

The tribunal, acting on the recommendations of the commissioner, could order online communication services like Facebook and Twitter to take down any content the government deems harmful.

These platforms would have to address any complaints within 24 hours. Failing to remove content could lead to an indictable offense and fines of up to $25 million.

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These undemocratic proposals seem eerily similar to those supported by authoritarian regimes.

Canadians shouldnt have to rely on a hope and a prayer that a superstructure of bureaucrats installed by a partisan government will safeguard our right to criticize that very same government.

To put the cherry on top of this disastrous cake, the Trudeau government's new bureaucratic superstructure would cost taxpayers millions of dollars a year.

Online communications services would face regulatory charges to do business in Canada, which no doubt will be passed onto consumers.

The government's new proposals amount to a dangerous shift toward state censorship. Canadians, not a costly bureaucratic superstructure, should be able to determine exactly how and why they want to criticize the government online.

With an election just weeks away, now is the perfect time to have a vigorous national debate about government censorship.

Jay Goldberg is the Interim Ontario Director for the Canadian Taxpayers Federation

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Winter 2022

Freeland tweet makes the case against online censorship

Imagine if Chrystia Freeland’s tweet about Erin O'Toole's health-care policies had been vetted by a layer of government bureaucracy.

For those who have been enjoying the summer rather than obsessing over political shenanigans, Freeland tweeted a video of O'Toole seemingly embracing the idea of private health care. But the clip cut the part where O Toole said universal access is

paramount. Twitter flagged Freeland's tweet as “manipulated media.’

Now imagine if bureaucrats had to make a ruling on Freeland’s tweet.

Should they side with the government that appointed them? Or should they side with someone who might be their boss in a month?

While these questions may seem abstract now, the federal government's internet censorship agenda could make these questions much more real in short order.

For months, Prime Minister Justin Trudeau has been trying to convince Canadians that we desperately need government bureaucrats to regulate, filter and block online content that might be seen as harmful.

But Freeland’s tweet lays bare the ever-true reality of politics: governments have a poor track record when it comes to telling Canadians the truth. How can we trust bureaucrats appointed by government to become neutral arbiters of truth? The fact is, we can't.

Canadians are smart. We know that politicians dont always tell the truth. We can tell when words are taken out of context. No government adjudication is necessary.

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Yet, earlier this year, the Trudeau government introduced Bill C-10. The legislation sought to give massive new powers to government bureaucrats to put Canadians’ online content under the microscope.

Under the guise of promoting Canadian content, unelected regulators at the Canadian Radio-Television and Telecommunications Commission would have been given the power to monitor what Canadians watch and share online and ensure it conforms to government approved standards.

This attack on free speech is unprecedented.

“Regulating user generated content in this manner is entirely unworkable, a risk to net neutrality, and a threat to freedom of expression, said University of Ottawa Law Professor Michael Geist.

The government also released a proposal for a so-called online harms bill earlier this summer, which would take government censorship a step further.

The Trudeau government's rationale for introducing this sweeping new legislation was supposedly to guard against online harms like hate speech and child pornography, but these evils have already been illegal under the criminal code for decades.

The government's proposal would create a new Digital Safety Commission, led by a Commissioner chosen by cabinet, and a new tribunal, whose members would be chosen by the minister of heritage.

Collectively, the Commissioner and the tribunal would be empowered to recommend and ultimately block online content that they deem to be harmful.

Given that all of the powerful actors would be appointed by politicians, there is a clear risk that the very partisans that appoint these bureaucrats might be able to influence what should or should not be removed online.

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While the targeted content might be online harms today, what's to stop the government from expanding the parameters of those bureaucrats’ powers tomorrow?

The combination of Bill C-10 and the online harms legislation sets the stage for significant government influence over what Canadians can watch, see and share. And these powers could easily be expanded in the future.

Freeland'’s tweet has unintentionally shown Canadians exactly why government bureaucrats should not become Canada’s new arbiters of truth.

When it comes to freedom of expression, Canadians, not government bureaucrats, should be put in the driver's seat.

Jay Goldberg is the Interim Ontario Director at the Canadian Taxpayers Federation

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SECTION I: NEWSPAPER COLUMNS Ta paye rs

Winter 2022

Censorship déja vu on Parliament Hill

Buried in a news cycle dominated by former Conservative leader Erin O’Toole’s sacking and honking truckers, Heritage Minister Pablo Rodriguez unveiled the government's replacement for Bill C-10. That bill died in a storm of controversy when Prime Minister Justin Trudeau called last September's election. At this moment of peak distraction, Rodriguez decided to revive it.

He tried to spin the new bill, known as Bill C-11, as a marked change from the government's attempts to regulate free expression online, including on social media. He claimed that the government “listened to concerns” about Bill C-10 and took them into account in crafting Bill C-11.

But make no mistake: this is the same government censorship is slightly fuzzier sheep clothing.

Bill C-10 was heavily criticized for allowing government bureaucrats at the Ministry of Heritage to regulate social media content. In response to those concerns, Rodriguez claimed that Bill C-11 would exempt social media content from government regulation.

But it turns out Rodriguez's exemption has an exemption of its own.

Professor Michael Geist of the University of Ottawa notes that Bill C-11 still allows the Canadian Radio-Television and Telecommunications Commission to regulate social media content.

So, while bureaucrats in the Ministry of Heritage will no longer have the power to regulate social media content, as was proposed in Bill C-10, the government now wants to farm out its dirty work to the CRTC.

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There are three circumstances in which the CRTC will be allowed to regulate social media content: if it indirectly or directly creates revenue; if the program is broadcast by a broadcast undertaking not regulated by the CRTC; and if the program has been given a unique identifier under an international standards system.

As Geist notes, these three exemptions may sound complicated, but content

Uploaded to sites like YouTube and apps like TikTok are still vulnerable to government regulation and censorship. Under Bill C-11, the CRTC will have the power to require media platforms to promote the accessibility of certain content over others.

That means the censorship danger is still clear and present. When bureaucrats are given the power to interfere with freedom of speech and freedom of expression, theres always a risk that theyll turn down the volume on critics and promote the messages they want Canadians to see.

Despite what Rodriguez and others in the Trudeau government might try to argue, certain social media content is very much subject to government regulation under Bill C-11.

When the Trudeau government was trying to pass Bill C-10 into law last year, Canadian society was largely unified in opposition to the government's efforts.

Journalists, academics, civil liberties groups, privacy experts, librarians and think tanks, among others, all sounded the alarm on the government's censorship efforts.

The Independent Press Gallery, for example, expressed “serious concern to the harmful effects on freedom of expression and principles of law that will ensue if the government moves forward with the proposal.”

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OpenMedia called the government's efforts “dangerously misguided.’

By keeping a mechanism in place to regulate social media content, which empowers bureaucrats to push some content online over others, the Trudeau government is going right back down the rabbit hole that generated such grave concern just last year.

Rodriguez's claim that the government listened to Canadians is ridiculous. Rather than taking the time to consult with Canadians from coast to coast about such an important issue, the Liberals are trying to ram through a replacement for Bill C-10 just weeks after Parliament came back into session.

The bottom line is that the Trudeau government didnt listen to Canadians. It didn't listen to experts, who called for a full social media content exemption from regulation, and it didnt even bother to spend the time to engage with concerned citizens.

Jay Goldberg is the Ontario Director at the Canadian Taxpayers Federation

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Spring 2022

The Trudeau government Is on a quest for censorship

Sign first, then we'll discuss the details.

Nobody would trust a real estate agent or used car dealership with that approach, but that's how the Trudeau government is trying to sell its plan to regulate the internet.

The government is currently trying to rush new censorship legislation through Parliament at lightning speed. Through Bill C-11, the Trudeau government plans to hand the CRTC the power to control what content Canadians are exposed to online. This includes filtering feeds on popular apps like Netflix, YouTube and TIKTOK.

As if that wasnt bad enough, the government is deliberately choosing not to disclose the scope of these new regulatory powers until after the bill becomes law.

Such an approach runs roughshod over the democratic process.

If the government wants to ram through new censorship powers, at a bare minimum we deserve to know just how aggressively the CRTC will be instructed to regulate what we see and share online.

The government cant even get bureaucrats singing from its own hymnbook.

Heritage Minister Pablo Rodriguez has promised up and down that user-generated content, meaning content a typical Canadian might upload to YouTube or share on Twitter, will not be regulated through Bill C-11.

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But lan Scott, the chair of the CRTC, the entity that will be responsible for doing the regulation on the government's behalf, says user generated content will be fair game.

Who should Canadians believe?

If the CRTC says it will have the power to regulate user-generated content through Bill C-11, and they're the ones tasked with implementing it, Canadians should listen to the CRTC.

As the government attempts to give itself sweeping new powers, it is worthwhile to ask why the government wants bureaucrats to have these new powers in the first place.

The government claims it wants to do so to ensure that Canadians are exposed to enough Canadian content online.

But this raises serious questions.

First, is the government competent to decide what should count as Canadian content?

As of right now, the CRTC’s process in making that determination is flawed. A biopic of the Trump presidency, entitled Gotta Love Trump, is considered by the CRTC as Canadian content, while the Handmaid's Tale, based on legendary Canadian writer Margaret Atwood’s famous novel, is not.

On the competence question, the answer clearly is no.

Second, what happens if the government decides it wants to use the CRTC’s new powers to influence what we see and share online based on standards other than Canadian content?

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It's easy to foresee mission creep. Today, the government wants to promote Canadian content. But tomorrow, with the CRTC’s powerful new tools to regulate the internet, Bill C-11 could easily be repurposed to quiet dissent or promote favourable narratives. Public Safety Minister Marco Mendicino, for example, has mused about the government pursuing new regulatory measures for the sake of “social cohesion.’

With these clear risks, it is worth asking whether this legislation is even needed, as the government claims, to ensure Canadian content gains adequate exposure.

The truth is that Canadian content is thriving like never before. In 2020 alone, Canada’s film and television industry enjoyed S6 billion in foreign investment, up five per cent from the year prior. And Canadian films and shows are easy to find on streaming services like Netflix.

If the sole rationale of Bill C-11 is to have Canadian content thrive and succeed online, then present data demonstrates that the legislation simply isn't needed. The government could just scrap Bill C-11 and call it a day.

The fact that Rodriguez and the Trudeau government are still aggressively pushing Bill C-11 in light of these facts demonstrates that the government's motive is not, as it claims, to promote Canadian content. Rather, it is all about control.

Jay Goldberg is the Ontario Director at the Canadian Taxpayers Federation

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Section II: Jay’s Testimony

Jay’s Testimony, June 2, Standing Committee on Canadian Heritage

Mr. Jay Goldberg (Director, Ontario, Canadian Taxpayers Federation): Thank you very much.

I'm very grateful to be here today to speak on behalf of tens of thousands of Supporters, including tens of thousands of Canadians who have signed our petition calling on the government not to move forward with Bill C-11.

The Canadian Taxpayers Federation is concerned by this bill for three key reasons.

First, the government's “empower the CRTC now, give guidance later” approach raises major concerns about accountability. There are many Canadians who are asking why the government is trying to give such unprecedented power to an entity like the CRTC without first sharing with Canadians exactly how much power and on exactly what basis it plans to do so. The government has said that instructions and guidance will come later, but that’s a backward approach when it comes to accountability.

Second, contrary to the government assertions, the CRTC has determined that user-generated content will be regulated by the CRTC under Bill C-11 through broadcast regulation. As Professor Michael Geist has said, “no other country in the world regulates content in this way, and to do so is a major threat to individual freedom. Again, many are asking why the government wants to give the CRTC

the power to regulate user-generated content while at the same time saying that it's not.

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Before | move to my third point, let me note that although the government has insisted that user-generated content won't be regulated, CRTC chair lan Scott told this committee that “section 4.2 allows the CRTC to prescribe by regulation user- uploaded content subject to very explicit criteria.” In addition, the very fact that user-generated content would be regulated demonstrates that this bill is not, as the minister and others have suggested, solely about Canadian culture.

Third, this could set a very dangerous precedent for the future. Today, this new government regulatory machine that is being built plans to filter content based on what it considers to be Canadian, but this could be repurposed in the future for other means. Not being able to hold the CRTC accountable in determining what is or is not Canadian content may concern some, but not being able to hold it accountable on future issues such as social cohesion, as Minister Mendicino has alluded to in the online harms conversation, is even more concerning.

There are also deep concerns about the process of this legislation, the lack of debate and the government failing to genuinely listen to Canadians. Our right to free speech and free expression must be sacred, and we should not be in a situation in which a bill like this is being pushed through Parliament in this way, with such limited debate and opportunity.

Thank you for having me here. | look forward to your questions.

Mrs. Rachael Thomas (Lethbridge, CPC): Thank you very much, Chair. My first question is for Mr. Goldberg.

Mr. Goldberg, I’m wondering if you can just talk to me a little bit about the work you

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do on behalf of Canadian consumers and how Bill C-11 might impact them and what your concerns are around that.

Mr. Jay Goldberg: Yes, thank you for the question.

Essentially, were deeply concerned about this legislation because It could

impede the ability of Canadians to hold the government accountable, and

as an organization we focus on less waste, lower taxes and more affordable government. Unfortunately, this legislation sets a very dangerous precedent. It allows for this brand-new regulatory machine that can filter content based on what it considers to be Canadian, but what we're all concerned about is the potential for that to expand into other areas in the future. It may not be phrased that way now, but we have to worry about what governments might do in the future and what ground this lays for potential stretching as we go forward.

Mrs. Rachael Thomas:

Sorry, let's be really clear here then. When you say “potential stretching” could take place in how this bill is used to require these different platforms to curate content in a specific way according to whatever the government mandates through the CRTC, what are you potentially concerned about?

Today it looks innocent. It looks like it’s just propping up Canadian content, even though it's an antiquated definition, and that certainly is harmful in and of itself. Nevertheless, beyond that do you have any other concerns?

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Mr. Jay Goldberg:

Absolutely. This legislation sets the stage for the government, through the CRTC, to be able to decide what ought to be promoted and what ought not to be promoted as we view products online. So, yes, today the criteria might be Canadian, that is, whether or not something is considered to be Canadian content. However, | would note here that some of the programming decisions are very outdated. A film called Gotta Love Trump is actually considered Canadian content while The Handmaid's Tale is not.

There are lots of problems there. But what | would also say is, yes, there could

be expansion. Today the government's talking about whether or not something

is considered to be Canadian. Weve heard Minister Mendicino talk about things like social cohesion. We know that the topic of online harms is coming down the pipeline, and so were very concerned that this could create a mechanism through which the government could promote and demote certain Canadian content—what people are saying based on standards that are not just Canadian and that could go all the way to social cohesion, which is very vague and allows a lot of room for the government to make decisions like that.

Mrs. Rachael Thomas: Thank you.

With regard to the bill, presently there is no policy directive that has been given to the CRTC. In other words, Bill C-11 is vague in some areas, and it will be left up to the CRTC to determine how they are going to apply the bill at large.

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Without a policy directive, it is impossible for the CRTC to understand what the ministers intent is. Now, the minister is saying that will come later, and he's asking Parliament to trust him as he requests that this legislation be moved forward. However, that seems out of step. Do you have any thoughts on that?

Mr. Jay Goldberg: Absolutely.

If the government is trying to say that they're going to create this legislation and pass this, and then they're going to figure out exactly what the orders are down the line, Canadians shouldn't have to trust that. We need proof of exactly what the government intends to do with this legislation. The regulations, the rules and the instructions should all be coming first. This is a very backward way of doing things in government, to pass a bill, to give all kinds of power to an organization that is rather unaccountable, and then just to presume that the minister, based on what the minister decides at a later date, will simply make a determination, which, because the power has already been given, Parliament has little way to stop.

Mrs. Rachael Thomas:

The minister has said that user-generated content, in other words the content put up by individuals, is exempt from the bill. However, the chair of the CRTC, Mr. Scott, has said nope, that in fact it is captured by the bill. Obviously, there's a discrepancy there that | would say is all the more reason for clear guidelines to be established at the beginning.

Do you have thoughts with regard to the capturing of user-generated content?

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Mr. Jay Goldberg:

Absolutely. |'ve had conversations with Professor Michael Geist, one of the foremost experts in this area. What he says is that there's an exception for user- generated content, but then there's immediately an exception to the exception, which he says throws the door wide open. As | quoted Mr. Scott earlier, he said, “section 4.2 allows the CRTC to prescribe, by regulation, user-uploaded content Subject to very explicit criteria.” That’s pretty open and shut. There is room for the regulation of user-generated content. If the CRTC is the organization that’s going to be getting that power—and indeed they themselves are saying they're getting that power—then | think they're the ones we have to listen to.

Mrs. Rachael Thomas:

Some content will be bumped up in the queue and some will be bumped down when people are using their search bars to look for information. Of course,

we know the content that will be bumped up is that which fits the definition of CanCon, which is very antiquated. Then anything that doesnt fit that definition will be bumped down.

It could even be produced by a Canadian on Canadian soil and be full of Canadian songs, etc., but it will not capture the attention of an audience because it will be bumped back to page 500 of the Internet, where it’s undiscoverable.

The Chair:

You have 30 seconds left.

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Mrs. Rachael Thomas:

Do you have thoughts on that?

Mr. Jay Goldberg:

Absolutely. There is a great documentary on the Maple Leafs’ playoff run in 2021. Lots of us love the Maple Leafs. It's not considered Canadian content and it will go down to the bottom of your streaming service, while Gotta Love Trump will be right at the top because it’s considered Canadian.

Mrs. Rachael Thomas:

Thank you.

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Section III: Online Government Censorship Report

A Fatally Flawed Gateway to Government Censorship

Foreword

The government wants the power to regulate the internet. Then it wants to decide what content qualifies as Canadian. And, based on that determination, it wants to make it easier for you to find that content.

All of that raises questions about Bill C-11 and Ottawa's push to give the Canadian Canadian Radio-television and Telecommunications Commission (CRTC) the power to regulate the internet.

Do Canadians want the government to regulate the internet? Until now, the answer has always been no. This isnt about terrorism or child pornography criminal law already applies to those evils and the people involved are prosecuted. This is about whether the government should decide what shows up and what gets buried on Canadians online platforms.

The government says it will use the power to make sure Canadian content shows up more prominently, but that raises So many more questions.

Is the government competent to decide what Canadians consider Canadian? What if a Canadian producer makes a documentary about an American president? What about a Canadian with a podcast about cricket matches in Pakistan? What about a YouTube channel operated by Quebec or Western separatists? What happens if the government's starts to view content that's inconvenient for the government as unCanadian?

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The government says none of this will be a problem. The legislation will give the CRITIC the power to regulate the internet and the agency will figure out how to do it. That's asking for a lot of trust from Canadians.

There's a true oddity at the heart of this issue: money. The government says it’s doing this to make internet giants pay for Canadian content. But money is already pouring in for Canadian content makers. And if this is about the money, why is the government entangling it with fundamental freedoms that give Canadians the right to consume and communicate whatever they want online?

There's another oddity: the rush. The government tried to rush Bill C-10 (Bill C-11’s predecessor) because it clearly knew a snap election was coming, but the initiative for that initial bill was ultimately ground to a halt with controversy. Now, with no hint of an election looming, the government is again limiting debate and using every procedural tactic to push through Bill C-11. Why the rush? Why not take the time to hear from both advocates and critics? The government's process with this bill is almost as concerning as Its content.

Lastly, whenever the government does anything there needs to be a discussion about making sure it doesn't go too far. The government says it wants to regulate the internet to make sure Canadian content gets viewership and revenues, but a regulatory machine built to promote Canadian content, and thereby demote other content, can be repurposed. It opens the temptation for the government to quiet critics. Perhaps the current government could resist that temptation, but will all future government be that virtuous? The government dismisses any concern about government overreach, but it isnt implementing any protections to prevent erosions of fundamental rights of expression.

Ultimately, C-11 will have an impact on the way all Canadians express themselves and consume content online. They deserve the fullest possible explanation about those impacts and the associated risks. This report provides that explanation.

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Introduction

Bill C-11 would hand the Canadian Radio-television and Telecommunications Commission (CRTC) the power to regulate all audio-visual content online to determine whether the content is Canadian and how easily consumers should be able to access that content based on that standard.

Ultimately, Bill C-11 is about government power: through this legislation, the government wants bureaucrats to have the power to decide what is Canadian content online and what is not, even though the government has not presented

a roadmap of exactly how the CRTC would make such a determination. The government wants Parliament to hand the CRTC new powers and is hiding the scope and guidelines it will give the CRTC until after the legislation is passed into law.

Audio-visual content generally falls into two categories: commercial and non- commercial. Bill C-11 would empower the CRTC to regulate commercial content, but there is serious concern that the legislation’s definition of commercial

content is overly broad and could capture some user generated content, which is traditionally seen as non-commercial. Regulation in this case would mean allowing the CRTC to decide whether the online content in question should be considered Canadian content or not, which would then lead to the promotion of certain online content (and, inherently, the demotion of other content) that consumers see based on that standard.

While the government says it will regulate commercial content, but allow some user-generated content to be made exempt, its guidelines for the CRTC are

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incredibly vague, potentially allowing bureaucrats to shift standards in deciding exactly which pieces of user-generated content should be regulated. This means that online posts made by average everyday users on platforms like TikTok or YouTube could easily become regulated and fall within the CRTC’s purview. The CRTC would then determine, based on its own standards, whether that content should be pushed on Canadian consumers. Inherently, this means other content will become less discoverable, even on social media platforms.

While Bill C-11 may be handing the CRTC the power to promote certain content on the basis of whether it is Canadian in character, the toolset given to the CRTC to do so could set a dangerous precedent in the future. If government bureaucrats have the power to reorder what we see online on the basis of one set of criteria, a future government could easily expand the categories of content it wants the CRTC to reorder. Other bills, such as the government's online harms bill, could serve as the basis for that expansion in the future. Thus, Bill C-11 is just the starting point for online content regulation and must be viewed in concert with other government initiatives to limit free speech.

Finally, after examining the rationale given by the government for the creation of Bill C-11, it is clear that the legislation is not only dangerous, but also unnecessary. The government's stated goal is to promote the creation of Canadian content in the online streaming world. However, Canadian content is thriving more than ever before, with record foreign and domestic investment in recent years. If the sole objective of Bill C-11 is for Canadian content to survive and succeed, the legislation is simply not needed.

The remainder of the report will proceed as follows. First, the report will examine exactly what Bill C-11 Is, including its content, context and what the government says It wants to achieve through the legislation. Second, the report will outline why the government's rationale for the legislation, supporting domestic Canadian

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content, doesnt hold water and it will show that Canadian content has been thriving in recent years. Third, the report will outline the core concerning provisions of Bill C-11, most notably the regulation of user generated content and the burgeoning new powers to be given to the CRTC.

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What is Bill C-11?

Overview

Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts,' was tabled by Canadian Heritage Minister Pablo Rodriguez on Feb. 3, 2022. The bill, known as the Online Streaming Act, is the government's follow-up to Bill C-10, which was introduced in the previous Parliament.

The original Bill C-10 made it through three readings in the House of Commons and two readings in the Senate. Despite desperate attempts to pass the bill, Bill

C-10 finally stalled at committee consideration shortly before the Senate's summer break, followed by the federal election in fall 2021. From the start, Bill C-10 was controversial, and its failure was a relief to many.

During the election campaign, the government committed to re-introducing the legislation within the first 100 days of a new Parliament. The new bill contains some modest changes to the prior bill, but many of the sources of concern that sparked widespread discussion regarding government or CRTC regulation of user generated content on the internet remain.

1. Bill C-11, An Act to amend the Broadcasting Act and to make consequential amendments to other Acts, 1st sess, 44th Parliament, 2021, online: Parliament of Canada

https://www.parl.ca/legisinfo/en/bill/44-1/c-11 [Bill C-11].

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What does Bill C-11 do?

Bill C-11 would establish a new class of regulated broadcaster called the “online undertaking. Online undertakings would include any services that transmit programs over the internet in Canada. These new online undertakings would not be licensed per se, but they would face regulation from the CRTC including:

* mandated registration, - the possibility of mandated payments to support Canadian content production,

* discoverability requirements that would require online services promote Canadian content,

* mandatory disclosure of detailed confidential information, including algorithmic data, and

* the prospect of multi-million-dollar penalties for failure to comply that could be applied to any online undertaking, whether an internet giant or a smaller, niche podcasting or gaming service

Much like Bill C-10, the bill leaves many of the specifics to the regulator, subject to a prospective policy direction in which the government would direct the commission to prioritize issues such as support for diversity and inclusion as well as revisiting what is considered Canadian content. The government admits that the definition of Canadian content is outdated and requires updating, but has provided little guidance on what it has in mind.

In fact, the government has indicated that it will only publicly release the policy direction after Bill C-11 receives royal assent, meaning that these specifics will remain hidden for the foreseeable future. The government wants Parliament to empower the CRTC now and figure out guidelines later. This approach is both backwards and lacks transparency.

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Why Bill C-11 Isn’t Needed

What is the political context for this legislation?

Bill C-11 and its predecessor Bill C-10 did not come about by accident. Rather, the bills are better understood as part of a broader effort to regulate the online environment.

In recent years, the government has emphasized internet regulation with obvious implications for freedom of expression. Laws, including hate speech, defamation, and child pornography, have always applied to online content and efforts to ensure their effectiveness in the online environment may be needed. However, the government's regulatory shift envisions applying additional laws that invoke broadcasting-style rules or envision the establishment of new regulators with mandates that could include takedown requirements or website blocking.

What are the government’s stated goals?

Former Heritage Minister Steven Guilbeault made it clear from early on that his top legislative priority was to get money from web giants? and his first legislative step would be to use Bill C-10 to target internet streaming services such as Netflix, Amazon, and Disney, with new requirements to fund Canadian content and to increase its discoverability by making it more prominent for subscribers.

2. “Town hall with / Assemblee virtuelle avec Steven Guilbeault” (16 September 2020) at 00h:47m:58s, online (video): Vimeo <player.vimeo.com/video/458756268>.

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SECTION Ill: ONLINE