Battling the Myths of Internet Regulation as We Consider the Next Iteration of Bill C-10

Had it become law, the bill would have expanded the Broadcasting Act, which already covers the radio and television industries, to apply to companies transmitting programs over the internet.

January 17, 2022
19842020-07-09T000000Z_219450747_RC2NPH9KSXA9_RTRMADP_3_CHINA-BOOKS.png
A translated version of A. A. Milne's "Winnie the Pooh", a book of poems by Mao Zedong, and translated versions of George Orwell's "Animal Farm" and "1984" (bottom to top) are seen in this photo taken July 6, 2020. Discussions about creative content and free speech are central to the continuing debate over internet regulation. (REUTERS/Florence Lo)

Last spring’s battles over the federal government’s Broadcasting Act reforms offered a depressing reminder that twenty-first-century Canada is still largely defined by its two linguistic solitudes. In English Canada, as Martin Patriquin, The Logic’s Quebec correspondent, noted, Bill C-10 “sparked a firestorm of criticism from Conservative MPs, legal scholars and business leaders who [saw] it as an assault on free speech and a travesty of big-government overreach.” Similarly, the activist group OpenMedia referred to it as a “dangerous censorship bill.”

In contrast, Quebecers were largely supportive of a bill they believed necessary to protect Quebec (and Canadian) culture. This view of the bill as legitimate, essential cultural policy, as Patriquin notes, was also largely shared by the Canadian cultural industry.

The cognitive dissonance may have left ordinary Canadians more than a little confused about what to think about the measures in this bill — particularly since the government’s first version was clumsily and poorly explained.

In 2022, with the newly re-elected federal government set to reintroduce a version of Bill C-10, it’s important to understand exactly what’s going on – particularly since the debate surrounding the bill has imported tropes and ideological debates from wider discussions about platform and internet governance, and the digital economy more broadly.

Had it become law, Bill C-10 would have expanded the Broadcasting Act, which already covers the radio and television industries, to apply to companies transmitting programs over the internet. Although online entities were undefined in the legislation, that term could conceivably apply to companies offering streaming music and video services such as Amazon Prime Video, Apple TV, Netflix, Crave and Disney+, as well as YouTube, iTunes, TikTok, Twitch and Spotify.

Janet Yale, a former telecommunications executive and the chair of the Broadcasting and Telecommunications Legislative Review Panel, argued that C-10 would have required that digital content companies that shared and made money from distributing content “operate by a set of rules and contribute some amount of the revenues they’re harvesting from Canadians.”

Key among Bill C-10’s provisions were requirements for the “discoverability” of Canadian programming and original Canadian content, and for the promotion and recommendation of Canadian programming, in both official languages, as well as in Indigenous languages. (“Discoverability,” although undefined in the Bill, refers to ways in which specified Canadian content could be made more visible or findable by consumers.) In a future iteration of the law, discoverability could be achieved, as our McMaster University colleague Sara Bannerman has said, by requiring Canadian content in banners, recommendation rows, playlists, “watch next” recommendations and search features. Instituting these features could entail mandated changes to companies’ recommendation algorithms, which the bill’s opponents and the companies decried as heavy-handed government censorship.

The formal regulation of digital companies as part of Canadian cultural policy via an arm’s-length independent regulator (the Canadian Radio-television and Telecommunications Commission), including mandating discoverability via technical means such as algorithms, was the key point of controversy in the debate.

Opposition to the bill and, more broadly, to governmental efforts to regulate the internet, was shaped in large part by ideological conceptions of how the internet, and specifically online speech, should be treated.

It is our view that these conceptions — termed internet exceptionalism and platform exceptionalism, respectively — operate as founding myths that deter meaningful public debate about internet regulation.

In keeping with its global cultural dominance, the United States has long pursued a policy of open borders and the idea of culture as a product.

The CanCon Context

On one level, as an upcoming chapter on Canadian culture and trade policy by Wilfrid Laurier University political scientist Patricia Goff makes clear, the Bill C-10 battle is simply the latest iteration in the long-standing Canadian debate over the role of the Canadian government in setting Canadian cultural policy, promoting and protecting a distinctive Canadian culture. Canada’s insistence on a “cultural exemption” in its trade agreements reflects its historical policy position that culture is more than a product to be commodified, a position also reflected in so-called “CanCon” regulations.

CanCon refers to a set of regulations developed to avoid Canadian culture being swamped by the world’s dominant English-language cultural superpower, the United States. In keeping with its global cultural dominance, the United States has long pursued a policy of open borders and the idea of culture as a product. This American view of culture is reflected in much of the rhetoric that surrounded Bill C-10. It’s a perspective that sees cultural policy as a demand-driven marketplace issue, in which Canadians should be free to consume whatever they want, unencumbered by government regulation. Cultural producers, including platforms, will respond to Canadian demands, according to this view, and government intervention in this area would only distort the marketplace.

The Myth of Internet Exceptionalism

But while previous CanCon debates were framed primarily in terms of “free market versus cultural protection,” the free-market position in the C-10 debate has been joined to an ideological libertarian framing of cultural policy that perceives virtually any government restrictions on communication as a form of censorship. This anti-regulation position is rooted in the concept of internet exceptionalism, which draws on ideas from cyberlibertarians in the 1990s. It portrays the internet as a unique space, somehow beyond the reach of governments and existing legal and regulatory frameworks. Key tenets of internet exceptionalism include commitments to unfettered freedom of speech, minimal government regulation, private-sector development of content and services, and a preference for market-based solutions over state intervention.

In contrast to this positioning, Bill C-10 was grounded in a long-standing approach to Canadian cultural policy that holds that the free market, left to its own devices, won’t deliver socially optimal outcomes for many groups. French-language artists, for example, have deeply rooted and legitimate concerns of being marginalized and under-represented in US-dominated cultural industries. Bill C-10 also proposed to require broadcasters to fund and provide Indigenous-languages content, an important and worthy goal that would help fulfill Canada’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples. Such a policy would not likely be delivered through free-market mechanisms.

Free-Speech Absolutism

Closely married to internet exceptionalism is an approach to speech regulation that prioritizes US-style freedom-of-speech norms as the internet’s principal value. US legal scholar Mary Anne Franks refers to this free-speech absolutism as a “cult” of free speech, a form of constitutional fundamentalism that problematically privileges free speech above other constitutional rights. The traditional Canadian approach to freedom of expression is markedly different, most clearly expressed in the Canadian Charter of Rights and Freedoms, which allows governments to impose reasonable restrictions.

As we noted in an earlier article, much of the spring 2021 debate over Bill C-10 was framed as free speech versus government censorship, with prominent critics, such as the digital rights group OpenMedia, deeming it a “dangerous censorship bill.” In a May 2021 op-ed in Canada’s National Post, Conservative leader Erin O’Toole emphasized fears of pervasive government surveillance and censorship. He began the piece referencing George Orwell’s Animal Farm and Big Brother from Orwell’s 1984 before warning that the bill could entail the government monitoring neighbourhood Facebook groups or comments on news stories. “Even knowing this type of regulation could take place sends a chill on the free speech rights of Canadians,” wrote O’Toole. Such rhetoric treats virtually any governmental regulation of the internet as illegitimate and inherently harmful, even when undertaken by liberal democracies, including for the purposes of cultural protection.

All told, the attempt around C-10 to shift critiques of Canadian cultural policy from the realm of economic debate to that of free expression is a new development. However, its effect remains largely the same: It’s the age-old call for government to get out of cultural policy and leave it to the market, in this case, social media platforms.

It would be a mistake, however, to see a future iteration of the bill as forcing regulation on an unregulated space. There are rules in place already; it’s just that social media companies, such as YouTube, are the ones setting the rules.

The Myth of Platform Exceptionalism

Another feature related to internet exceptionalism is that of platform exceptionalism. This is the notion that big online companies such as Uber, Airbnb and YouTube are — and should be — treated as fundamentally different businesses than their analogue counterparts.

Indeed, the word platform carries with it several, sometimes contradictory connotations. As we have discussed elsewhere, internet companies define their operations as platforms to portray themselves to regulators and the public as technical, neutral intermediaries that merely facilitate interactions among users or disseminate user-generated content.

As US communications scholar Tarleton Gillespie points out, this can be a way to downplay the extent to which they create an algorithmically enabled, content-curated environment for commercial gain while simultaneously claiming they operate as neutral providers of communication and ideas. In addition to using algorithms to prioritize or downgrade certain content, social media companies also control content distribution through monetization rules.

A similar rhetorical role is played by the term user-generated content, which featured prominently in critiques of Bill C-10. The term broadly — and unhelpfully — encompasses everything from people sharing cat photos to commercial work by people who generate part or all of their income by creating content for social media. Creators can earn revenue from advertising, a practice facilitated and shaped by algorithms that work to match content with advertisers’ guidelines. While advertising rates vary, content creators generally receive pennies per view, meaning tens of thousands to hundreds of thousands of views are needed weekly to generate any income from advertising — although revenue can also be generated from sponsorship or merchandise sales. Social media celebrities whose followers number in the millions generate significant advertising revenue. Scarborough, Ontario’s Lilly Singh, for example, reportedly earns between $15,000 and $30,000 monthly from her nearly 15 million fans.

As critics of Bill C-10 correctly noted, the diversity of users and scale of commercial operations encompassed in “user-generated content” underscores the need for the government to precisely delineate what types of content should be subject to discoverability and other requirements, as well as how that would be achieved.

It would be a mistake, however, to see a future iteration of the bill as forcing regulation on an unregulated space. There are rules in place already; it’s just that social media companies, such as YouTube, are the ones setting the rules — they actually play an important rulemaking role in the Canadian cultural space. Nor do these platforms-as-regulators always act in the best interests of the Canadians who depend on these companies. Monetization rules can be complex and opaque, leaving the burden to appeal on content creators whose work may have been demonetized. Complex rules and biased algorithms can reduce the diversity of creators and content.

YouTube, for example, has repeatedly faced accusations that it demonetizes LGBTQ+ content, as such videos have been marked as “not suitable” or “restricted,” which means that most advertising is not placed alongside these videos, thus stripping their creators of revenue. YouTube has denied discrimination but admitted that its algorithms mistakenly (and repeatedly) identified LGBTQ+ content as “restricted.”

Canadian content creators have voiced concerns about YouTube demonetizing their content and pointed to problems with the platform’s transparency and application of its policies, according to a study by researchers at Ryerson University in 2019. Cases of wrongful or accidental demonetization highlight the degree to which social media platforms “curate” (that is, regulate) content to serve companies’ commercial goals.

The Goal: Avoid Regulation

Another reason these companies define themselves as platforms is to minimize their exposure to — or to avoid entirely — regulatory frameworks that would make them legally responsible for the digital content and services their sites make possible.

Social media companies contend they are not broadcasters producing content as digital equivalents to the radio and television industries. Facebook and Google argued this in response to the Australian government’s introduction in February 2021 of a law that forced social media companies to pay news publishers for posting their content. These companies make this argument even though, as discussed above, they facilitate content production and dissemination, and make editorial decisions through technological means such as algorithms, which prioritize specific content to generate advertising revenue.

To be clear, we are not arguing that regulating digital content is straightforward or uncontroversial, or even that the Broadcasting Act is the most appropriate tool for regulating these companies. Moreover, as critics and activists have rightly pointed out, a poorly designed regime may unfairly or inadvertently stifle some speech.

However, we do contend that commentary framing Bill C-10 as free speech versus censorship impaired meaningful discussion that might help us more easily think through how we should treat these companies, especially since other platforms use exactly the same strategy to avoid regulation.

Ride-hailing firms such as Uber and Lyft argue they are technology companies that engage drivers to work as independent contractors, rather than transportation companies with traditional employees. Multiple courts in the United States and Europe have disagreed, ruling the companies should treat drivers as employees, but the companies continue to protest. Similarly, accommodation firms such as Airbnb lobby policy makers to avoid being subject to zoning, safety and tax laws that govern hotels.

In short, social media companies are not protectors of the so-called free and open internet, itself a conceit of internet exceptionalism. The internet is already highly regulated by companies and governments in ways that currently both enable and restrict access. Nor are they public utilities or guarantors of free expression: they are foreign-owned, for-profit content-distribution companies, often monopolies, that pursue a self-interest that does not necessarily align with Canadian interests. This should be our starting point for any discussion on platform regulation.

Hopes for a Better Debate

Should Canadian cultural policy be set by the market? Was Bill C-10 the best way for the government to bring these global internet companies under democratic regulations? What companies and types of user-generated content should fall under a successor bill? What possibilities exist for creative re-regulation of Canadian cultural policy? Will requirements for discoverability effectively promote Canadian content online?

We do not advocate for a specific regulatory approach. Instead, we merely point out that a free speech-versus-censorship framing derails the very important national cultural-policy conversation we need to have in favour of one driven by myths of internet exceptionalism.

People can have legitimate disagreements on whether and how digital content should be regulated, including whether it should be left to the market or to the whims of large American-owned platforms. However, the treatment of Bill C-10 nearly exclusively as a free speech issue, at least in English Canada, effectively waved away the fundamental debate over whether or not Canadian culture is just another commodity. And while this might be the intention of some of those crying “censorship,” this debate should at least be held openly.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.

About the Authors

Blayne Haggart is a CIGI senior fellow and associate professor of political science at Brock University in St. Catharines, Canada.

Natasha Tusikov is an assistant professor of criminology in the Department of Social Science at York University and a visiting fellow with the School of Regulation and Global Governance (RegNet) at the Australian National University.