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Minister of Canadian Heritage Steven Guilbeault responds to a question during Question Period in the House of Commons in Ottawa on Nov. 3, 2020.

Adrian Wyld/The Canadian Press

For an elected official who has now appeared multiple times on national television in an effort to offer clarity, it is puzzling that Heritage Minister Steven Guilbeault has been allowed to repeatedly defend a version of a signature bill that doesn’t seem to exist, under a mandate that makes no sense.

Bill C-10 – which has just been put on hold as the heritage committee awaits a new Charter statement from the Justice Minister – is purportedly about making the big internet broadcasters and streaming services pay their fair share. It’s supposed to be about making Netflix and Amazon and YouTube promote Canadian content (by, for example, changing “discoverability” requirements) and contribute to the creation of that content.

How exactly the government will do that is being largely left to the Canadian Radio-television and Telecommunications Commission, which will have to take a regulatory scheme designed for an analog world of controlled broadcasting licences and adapt it for a new digital reality with infinite content possibilities. It would be like asking a crossing guard who has controlled the flow of traffic at one intersection for the past half-century to suddenly oversee land and air traffic across the entire country, at a time when new highways, planes and drivers are cropping up every second.

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In support of this enormous undertaking – one that has some Canadians concerned about government overreach and even possible censorship – the minister on the file has made himself available to answer questions about the bill. The problem, however, is that Mr. Guilbeault doesn’t seem to actually know what the bill even is.

Late last month, the CBC’s David Common asked Mr. Guilbeault why the heritage committee removed Section 4.1 of the proposed legislation, which would have excluded content uploaded by individual users from CRTC oversight by carving out an exemption for “programs” uploaded by users of a service. Practically speaking, that meant that while the bill could have made YouTube subject to CRTC regulation, a YouTube video uploaded by an individual would not have been. The removal of that exemption has led some to worry, justifiably, that Bill C-10 would grant the CRTC the power to regulate content uploaded by individual users.

Mr. Guilbeault responded by explaining that Section 4.1 was “not necessary,” although he could not then articulate why the supposedly unnecessary exemption was included in the first place. “It’s not the purpose of the bill so it’s not required to be there,” he said.

He added that Bill C-10 does not grant the CRTC power to do content moderation – although as currently written, the bill certainly could be interpreted that way – and suggested that some of the concerns about the proposed legislation have “no basis in reality.” After the interview, however, Mr. Guilbeault’s office released a statement saying it will bring forth a new amendment to make it “crystal clear” that content uploaded to social media by individual users will not be subject to CRTC regulation.

Then in another interview this past weekend – this time with CTV’s Evan Solomon – Mr. Guilbeault said discoverability regulations could apply to individuals with large social-media followings who “are broadcasters or who act like broadcasters.”

“If you have a YouTube channel with millions of viewers and you’re deriving revenues from that, at some point the CRTC will be asked to establish a threshold,” he said.

Mr. Solomon asked Mr. Guilbeault to explain at what point an individual user could be considered a broadcaster by CRTC definitions. The minister replied that it would be up to the CRTC.

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Turns out that wasn’t quite right, either. In a follow-up statement, Mr. Guilbeault’s office said he used “unclear” language when he said accounts with large followings would be considered broadcasters and thus be subject to federal regulations. In fact, his office clarified, it would only be the platforms that would be subject to regulations – not the users, no matter how large their audience.

There are a couple of possibilities for why the communications on this bill has been so muddled, contradictory and confusing.

One is that trying to regulate the internet in this way using the archaic CRTC is a fool’s errand, and will never make sense as long as the government tries to jam square-peg labels such as “broadcaster” and “program” into a rapidly evolving ecosystem comprised of exotically shaped holes. The second possibility is that the government fundamentally doesn’t understand how the internet works, which makes communication about such an enormous attempted intervention challenging. The third is that the minister on the file hasn’t actually had yet the chance to read to the end of Bill C-10.

Judging from the eminently clumsy communications thus far, it’s tough to say which explanation is the most probable.

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