The Great Canadian Firewall

Canada, as its beloved Prime Minister Pierre Elliot Trudeau once described, is in the awkward position of sharing a bed with an extremely overbearing elephant. Every major American political or cultural development has a seismic effect on Canada, while the same cannot exactly be said to be the reverse. Sometimes, this national sensitivity has manifested as neurotic protectionism, starting with rock music.

Throughout the 60s and 70s, radio stations were indifferent to Canadian artists, while the airwaves were dominated by British and American artists. In response to this asymmetry, in 1971 the Canadian Radio-television and Communications Commission, a bureaucratic body, created mandated thresholds of between 40% and 60% Canadian content on radio and television. A rubric with the acronym MAPL (Music, Artist, Place, Lyrics) was even established to determine whether a piece of music was ‘Canadian enough’. And thus the parochial “CanCon” rules were born, and solidified in Canada’s Broadcasting Act.

There were certain technical realities that justified Canada’s heavy-handed regulation of its cultural environment: radio waves and television channels are a scarce commodity, as are their programming hours. This rationale does not obtain, however, in the context of Internet platforms: 720,000 hours of content are uploaded every day to YouTube alone.

It was to considerable puzzlement, then, that Justin Trudeau’s Liberal government began to hint at details of their forthcoming update to Broadcasting Act in Bill C-10, which was tabled last November. The Act purports to regulate the entire Internet. It would force YouTube, TikTok and other video- and audio-sharing sites to prominently feature more Canadian content, through a patriotically skewed algorithm which mandates enhanced “discoverability” of Canadian content. This is jargon for pushing certain content which is deemed by the CRTC regulator as meeting as-yet undefined criteria of “Canadian content”—with ample discretion to filter out content made by Canadians that doesn’t carry a desirable ideological posture and prioritize content that does.

When pressed by Conservative MPs, Heritage Minister Steven Guilbeault was consistently opaque in acknowledging that ‘discoverability’ unavoidably implies curating a user’s feed. In other words, granting the state license to promote and suppress certain types of online content—the types of techniques wielded by basic dictatorships like China.

Canada’s move is one that digital-law experts and former government officials call one of the most aggressive internet regulations yet from a Western country. The aim to promote domestic content on the sites is a step in the Canadian government’s multipronged effort to get the world’s biggest digital companies to contribute more financially to the country’s economy, including regulation, digital taxation, and policing online harms. Canada has vowed to levy a digital-services tax starting in 2022, regardless of whether there is a global deal among Organization for Economic Co-operation and Development members on such a tax this summer.

Bill C-10 is a clear and flagrant violation of the right to free expression: the right to express oneself through artistic and political creations, and the right to not be unfairly suppressed by a nebulous government algorithm. Technology law expert Michael Geist views C-10 as granting the Trudeau government license to erect the Great Canadian Firewall, with the discretion to block Canadians from viewing websites and content it deems undesirable.

Outrage crested in Canada over the bill when it was revealed that a section exempting user generated content from the bill’s purview was removed. This meant that millions of video, podcast, and audiovisual content uploaded to TikTok, YouTube, and Facebook would be treated as “programs” under Canadian law and thus subject to some of the same rules as those governing traditional TV and radio broadcasting services. Canada’s Heritage Minister did a series of disastrous media interviews, where his only response to pointed questions about the removal of the exemption was to throw his hands up and emote about the necessity of forcing big tech platforms to pay their fair share—a point that fell flat, since the section in question governed individual creators, not big tech. Most recently, the bill was further politicized when both the Liberals and Bloc Québécois limited committee debate, and then, alongside the NDP, introduced amendments without making them public, in an attempt to rush the bill to the House of Commons, pass it and send it to the Senate. Jarringly, the Speaker of the House deemed the amendments void the following day.

The idea of a regulator censoring cat videos and TikTok dances, of course, is a red herring. The more pertinent issue is how the CRTC will handle its disproportionate-by-population number of Canadian YouTubers who have built large, mostly international audiences (Canadian creators draw overwhelmingly international audiences, with 90% of viewers from outside of the country).

Some of Canada’s most successful YouTubers skew rightward: Jordan Peterson, Gad Saad, Steven Crowder.  They each enjoy audiences which far exceed any cable television program. (Guilbeault alluded to this when he conceded that, while the intention of the bill is not to regulate individuals, some individual creators have such large audiences that they are really more like broadcasters.) Will these creators see their videos, which are stridently critical of Canadian statist pieties, effectively shadowbanned and algorithmically cursed?

To grasp with what is being proposed here, recall the U.S. debate over ‘net neutrality’—the ability of Internet service providers to preferentially push certain content to its users. Donald Trump appointee Chairman Ajit Pai repealed to the horror of civil liberties groups in 2018. The principle of our informational feeds being skewed by the profit margins of service providers is rightly offensive. But now, instead of the fairly straightforward corporate interests of service providers and platforms—usually, to serve you up fresh content that will entice you to spend longer on the platform and watch more ads—imagine that the algorithm was being manipulated by statist interests. Why not hijack it towards the end of social engineering?

When it comes to constitutional guarantees of free expression, the government’s response has been circular and cynical: “I mean, to think that we would somehow adopt legislation that would be counter to the Canadian Charter of Rights and Freedoms, is a pure fabrication,” Guilbeault retorted. A “Charter statement” rubber-stamping the legislation’s constitutionality was presented at Committee, concluding that “The Act provides that it must be interpreted and applied in a manner consistent with freedom of expression.” The Minister of Justice did not appear to defend his office’s tepid statement.

Taking action to “level the playing field” is a staple of the Liberals’ rhetoric about the need for the bill. In fact, Netflix, Disney+, and YouTube have been steadily increasing their investment in Canadian entertainment production over the last decade, due to favourable fiscal incentives and well-nurtured hubs of local skill and talent, particularly in Toronto, Montreal, and Vancouver. The Liberals acknowledge this, but demur that C-10 is necessary to ensure that Big Tech’s investments are guaranteed, not voluntary—a dubious proposition for incentivizing artistic creation.

In order to understand the political game the Liberals are playing with C-10, it’s necessary to consider the fraught role of Québec in Canada. Indeed, polling shows overwhelming support for the Bill in Quebec, and both the Prime Minister and his Heritage Minister shepherding the bill represent ridings in Canada’s second-most-populous province.

Quebec perceives itself as a perennially besieged linguistic minority, the sole French-speaking nation in North America, constantly in peril of being steamrolled by Anglo-American culture, news, and mores. To some extent, this is justified. Anyone who has been to Quebec has noticed its distinct, proudly Francophone culture.

Canada is also expected to follow the template of Germany’s NetzDG law, which mandates that platforms take down posts that are determined to constitute hate speech—which requires no actual demonstrated discrimination or potential harm, and is thus mostly subjective—within 24 hours or to face hefty fines.

While Quebec’s attempts to legislate against use of English in commercial signs and advertising have routinely been struck down as unconstitutional limits on speech by the Supreme Court of Canada, the Trudeau government has acceded to the province’s various nationalistic whims: banning religious attire, and even, preposterously, claiming it could unilaterally amend the Constitution of Canada to declare French its sole official language. The Trudeau government’s combined instincts to regulate at the drop of a hat and pander to Quebec are on full display in C-10.

Most of the details of how C-10 will operate, of course, will be left to the CRTC to sort out: what counts as a “social media site”, how to define Canadian content in a digital age where a producer, director, writer, and cast frequently hail from different contents, how exactly to promote Canadian content so that it is more “discoverable” by users. The bill would follow a trend of increasingly values-driven decisions being relegated to regulatory bodies whose decisions are largely removed from public view.

Unfortunately, Canada’s blitz on online free expression is just beginning to ramp up. On June 23rd, the same day that Parliament recessed for the summer, the government tabled its Reducing Online Harms bill which targets online hate speech. Certain categories of speech, such as counselling suicide or inciting violence, are already criminalized in Canada. But this bill goes further.

The bill is expected to establish three new regulatory bodies: a social media regulator with the power to direct social media platforms to mandate takedowns, an appeal board, and a social media advisory board.

Canada is also expected to follow the template of Germany’s NetzDG law, which mandates that platforms take down posts that are determined to constitute hate speech—which requires no actual demonstrated discrimination or potential harm, and is thus mostly subjective—within 24 hours or to face hefty fines. This obviously will incentivize platforms to remove content liberally and avoid paying up. The Germans have recently gone even further, mandating that platforms forward all flagged content to the federal criminal police, raising concerns about users’ data privacy and rights of due process.

The Liberal government also intends to follow Australia in trying to get digital platforms to compensate media outlets for content. However, Facebook Canada has already implemented its own initiative in which selected news platforms will be paid in exchange for promoting their content, the News Innovation Test.

Recently, Canada joined other G7 countries in calling out Nigeria for its illiberal decision to block Twitter and require social media registration. These words ring hollow, though, given its actions at home.