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As it stumbles through the smoking ruins of Bill C-10, An Act to Amend the Broadcasting Act, the government continues to insist the whole week-long firestorm is based on a simple misunderstanding.

The bill was merely intended, runs the official line, to apply to a few internet audio- and video-streaming giants, mostly foreign-based – your Netflixes, your YouTubes, your Spotifys, your SoundClouds – subjecting them to the same system of regulation as that to which the Canadian broadcast media have submitted for decades.

It was never intended – oh gracious me no – that those regulations should apply to the users of those sites. Or rather – since the regulations would very much apply to the users of those sites, in so far as they affected the sorts of content users could download from them – it was never intended that it should apply to the content users uploaded to the sites themselves. Why, the exception was even spelled out in the bill, right there in Section 4.1.

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That would be the Section 4.1 that was excised last week by the Commons Heritage committee, with the support of its Liberal members. Even then, the government protested there was nothing to worry about. Facing an enormous popular and media backlash – the government wants to censor your cat videos – the Heritage Minister, Steven Guilbeault, vowed the bill would be amended to make “crystal clear” it would not apply to user-generated content.

Fast-forward to Thursday night’s meeting of the committee, and no such amendment was on offer. Rather, it is now crystal clear that, should the bill pass, the songs and videos Canadians post to social-media sites would be very much subject to regulatory oversight. The government may not wish to literally censor your cat videos, but they would be ground through the same Canadian content requirements as everything else.

This is, in any case, hardly the only issue with Bill C-10. Even if Section 4.1 were restored, and the government abstained from the mad project of inspecting and assessing millions of user posts for their Canadianness, that would still leave the rest of the bill – whose intent, let us recall, is to regulate the internet. Not just the part of it that is generated by Canadian-based corporations – the kind to which domestic law usually applies – but foreign-generated content as well. The government expects the whole world to bend to its regulatory will.

The audacity of this is only exceeded by its futility, though both are eclipsed by its pointlessness. It may please the government to believe that, by extending a regulatory structure designed for the early days of radio and television to the online world of the twenty-first century, it is “modernizing” the Broadcast Act, but in fact what it is attempting is to “antiquize” the internet, dragging it, and us, back to a primitive, regulatory-heavy era from which technology has already liberated us.

When radio and television signals could only be broadcast over the air; when it was not possible to charge users to receive these signals; when there were only a handful of radio stations or television networks, each dependent on advertising to finance its activities, and each therefore broadcasting much the same material, all of it aimed at the largest possible audience – then it might have made sense to regulate what was broadcast.

But none of those conditions apply any more, and have not for some time. Perhaps unusual or minority tastes were underrepresented in the broadcast world of old. Not so in the world we are now in, with thousands if not millions of online “broadcasters” offering every conceivable kind of programming – not in response to any government regulation, but because that is what consumers want and are willing to pay for.

Outmoded as it is in principle, the legislation is equally lacking in practical arguments. There is no need to “level the playing field” between domestic and foreign distributors: if the latter are not subject to the same regulations as the former, neither are they eligible for the same subsidies. There is, likewise, no shortage of Canadian content: domestic production is (or was, pre-pandemic) at an all-time high, much of it underwritten by foreign producers.

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As for the problem of “discoverability,” the alleged inability of viewers to find Canadian content on sites like Netflix, that, too, seems largely invented. As the communications law professor Michael Geist will patiently explain to you, the patriotic viewer has only to type “Canada” or “Canadian” in the search box to be confronted with hundreds of choices, on that one site alone. (Keyword searches: who even knew such a thing was possible?)

The legislation, in short, is a solution in search of a problem. And what a solution: handing the power to regulate the internet – I still can’t believe I’m typing that phrase – to the Canadian Radio-television and Telecommunications Commission, a body whose approach to the subject can be expected to be every bit as streamlined and up-to-date as its name suggests.

We can debate whether there is any need for CanCon regulation: whether there is anything stopping Canadians from watching Canadian content if they choose; whether there is any reason to force them to pay for content they do not watch; whether anyone can even define Canadian content in a coherent way. But the CRTC is not just in the business of enforcing CanCon. It is in the business of regulating content generally: violence, obscenity, strong language, the works.

True, it does not do so directly, or not as a rule. The commission may have ordered an entire radio station, Quebec City’s CHOI, to shut down because one of its disc jockeys was rude to people (it was later allowed to continue broadcasting under new ownership), but such overt displays of regulatory muscle are rare.

Rather, it typically operates through a front group, the “independent” Canadian Broadcast Standards Council, formed at the commission’s behest and charged with enforcing an industry code written precisely to its specifications. It was the CBSC, for example, that ordered the Mighty Morphin Power Rangers off the air some years ago, for fear the kiddies would take to imitating their heroes’ chopsocky moves. But no one should be in any doubt on whose authority it was acting.

This is the commission the government now proposes should regulate the internet: a mandate whose scope and sweep the bill leaves to the commission to define. Do we think it will take a cautious and constrained view of its new powers? And do we think the government, this government, wants it to?

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