The federal government of Canada has passed a few Bills in the first half of 2023 that are continuing to raise eyebrows from civil liberties groups and digital media experts. The Bills involve pushing more Canadian content and in some cases, regulating the types of content Canadians may see on their streaming devices. I invited Law Professor Michael Geist, from the University of Ottawa to discuss the implications of these Bills and the impact it may have on Canadians’ lives.

It becomes a slippery slope where the desire to regulate and combat disinformation can lead to overreach and unintended consequences. There’s also a general sense of frustration and concern among the public about the negative effects of online platforms, such as the spread of misinformation, hate speech, and harassment. So when a policy proposal is framed as a solution to these problems, it can garner support, even if the specific details and implications are not fully understood or considered.

Despite the significant impact of online activities on the daily lives of Canadians, there is a disconnect between the government’s actions and the level of public awareness surrounding these issues. With more Canadians than ever relying on the internet for various aspects of their lives, including news consumption, social interactions, and entertainment, government policies in this realm have far-reaching implications. However, due to competing priorities and the complexity of internet policy, these issues often take a backseat in public discourse.

Professor Geist emphasizes that the focus should be on issues such as data privacy and competition, rather than content regulation. He argues that there is a tendency to oversimplify complex matters and propose regulations without fully understanding their implications. And, there is an importance of distinguishing between misinformation and disinformation, where the former involves inaccurate but lawful speech and the latter refers to intentionally deceptive information with harmful intent. Geist highlights the risks of restricting lawful speech and argues that regulation should primarily target disinformation campaigns aimed at deceiving people for personal gain.

What is Bill C-11 the Online Streaming Act?

Bill C-11, which aims to update Canada’s broadcasting laws to include online streaming services brings forward new ideas of content being pushed out to Canadians. Geist distinguishes between curated services like Netflix and user-generated content platforms such as YouTube. He points out that the initial intention of the legislation was to regulate the former, with the focus on ensuring Canadian content (CanCon) on these platforms. However, he highlights a concern that the regulations also extended to the content itself, potentially encroaching on freedom of speech.

Geist discusses the issue of discoverability rules, which require platforms to make Canadian content easily accessible. He raises concerns about the global nature of this obligation, questioning the need for Canadian content to be discoverable worldwide. Furthermore, the legislation broadens the scope by subjecting all streaming services, regardless of their origin, to Canadian regulations, which could lead to excessive oversight and potential conflicts with regulations from other countries.

The regulation of speech in the online sphere requires a delicate balance between protecting civil rights and safeguarding the community. Acknowledging this trade-off is crucial in navigating the complexities of regulating online activities. However, there is a concern that the Canadian government may have given insufficient consideration to the freedom of expression-related concerns in favor of more aggressive regulatory measures. This could be driven by political motivations or a genuine belief that the perceived harms outweigh the limitations on civil rights.

What is Bill C-18, the Online News Act?

Bill C-18, targeting online news platforms, has sparked controversy due to its requirement for platforms like Facebook and Google to pay for linking to news content. While the intention to support traditional news organizations is understandable, mandated payments for links may hinder the free flow of information and disadvantage innovative digital-only news services. This policy raises concerns about the power dynamics between legacy players and new entrants in the media landscape.

• Geist proceeds to provide an overview of Bill C-18, the Online News Act, which aims to address the revenue struggles faced by legacy media in the digital environment. The bill proposes that large platforms like Google and Facebook negotiate agreements with media companies and pay them for facilitating access to news. However, Geist points out the fundamental flaw in the bill’s approach, which seeks to charge platforms for simply posting links to news articles. He highlights that publishers themselves post these links on platforms like Facebook to drive traffic back to their websites and benefit from referral traffic. Geist argues that such links fall under fair dealing and do not require compensation.

Moreover, Geist raises concerns about the potentially exorbitant fees imposed on platforms, which could amount to hundreds of millions of dollars and significantly impact news outlets’ budgets. The bill’s lack of clarity regarding what exactly platforms are paying for during negotiations raises questions about the fairness and feasibility of the proposed legislation. Geist warns that such measures may discourage platforms from promoting news articles and potentially harm the overall media ecosystem.

Geist argues that the traditional approach of forcing broadcasters to prioritize Canadian content is outdated in the era of on-demand streaming services. He highlights the importance of user interest and content discoverability, citing Netflix as an example. Geist further emphasizes that extending these policies to platforms like TikTok and YouTube may do more harm than good, as it could negatively impact global reach for Canadian creators. The conversation then shifts to the issue of determining Canadian cultural content and the role of the government in shaping it.

Geist explains how the shift from traditional broadcasting to on-demand platforms has transformed content discovery. Previously, broadcasters were obligated to allocate specific time slots for Canadian content, making it difficult for viewers to find it. However, with the rise of on-demand platforms like Netflix, content is now readily accessible and discoverable through sophisticated algorithms. Geist argues that the misconception lies in the belief that the problem with Canadian content is its discoverability, rather than focusing on quality, exportability, and other factors. He emphasizes that Netflix’s incentive is to provide content that aligns with user interests and preferences, as subscribers have the freedom to cancel their subscriptions if they cannot find appealing content.

What is Canadian Content?

Geist acknowledges that while the government aims to promote Canadian content, the definition of what constitutes Canadian content remains a complex issue. In the user-generated content space, there are no clear definitions, and even in the commercial space, existing rules are considered outdated and unfit for the modern digital landscape. Geist highlights the requirement that Canadian content must be owned by a Canadian, which creates challenges for international streaming services like Netflix and Amazon, despite their significant investments in Canadian productions. Politicians often claim that these companies do not invest in Canadian content without considering the ownership requirements imposed on them. Geist suggests a reexamination of these rules to reflect the reality of content creation and ownership in the digital age.

One underlying thought process behind such policies may be the belief that platforms should take more responsibility for the content they host. There is a growing expectation that social media companies should actively police and moderate the content on their platforms to ensure its accuracy and prevent the spread of harmful information. This idea aligns with the view that platforms have a societal duty to combat disinformation and protect users.

Another pillar that may drive support for these policies is the desire to level the playing field between traditional media outlets and digital platforms. Traditional media has been facing significant challenges in the digital age, with declining revenues and struggles to adapt to the changing media landscape. Some may argue that platforms like Facebook and Google should contribute financially to support the production of news content, as they benefit from linking to news articles and generating ad revenue from them.

However, while these underlying concerns are valid, the proposed policies need to be carefully crafted to avoid unintended consequences. Overregulation can stifle innovation, hinder free speech, and create a chilling effect on online discourse. It’s crucial to strike a balance that allows for the benefits of the digital environment while addressing legitimate concerns.

Conclusion

The conversation between Michael Geist and Christopher Balkaran highlights the challenges of promoting Canadian content in the digital age and raises concerns about the implications of Bill C-18. Geist emphasizes the importance of content discoverability and user interest in driving engagement. He argues against outdated approaches that prioritize forcing platforms to promote Canadian content. Additionally, Geist underscores the need to reevaluate the definition of Canadian content and ownership requirements in light of the modern digital landscape.

Regarding Bill C-18, Geist criticizes the notion of charging platforms for simply posting links to news articles and highlights the potential negative consequences for media outlets and the broader media ecosystem. He suggests that a more comprehensive and nuanced approach is required to address the revenue struggles faced by legacy media in the digital era while ensuring a fair and sustainable media environment.