Timothy M. Denton

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Extensive speech regulation is coming

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Michael Geist wrote: "Should the government regulate those [Internet] providers and creators, it will be engaging in perhaps the most extensive speech regulation Canada has ever seen on the demonstrably false premise that doing so will level the playing field, support Canadian stories, or save a production sector that is thriving in the internet age."

I would add "extreme" and "unconstitutional" to the description.

I shall be very surprised if Janet Yale, chairman of the Broadcasting Telecom Legislative Review, fails to produce recommendations that drastically extend the Broadcasting Act to cover all video moving across the Internet. I shall address that aspect of regulatory overreach in a moment.

What is the problem that needs to be solved? As Professor Geist points out, "the total value of the Canadian film and television production has nearly reached $9 billion annually, a record with overall production increasing in 2018 by 5.9 per cent."

How big is the $9 billion that we spent on program production? Nine billion amounts to a little over a third of what Canada spent on direct program expenditures for all of national defence in 2018, that is, $25.5 billion. Or, if we look at purely capital expenditures for the navy, in the period 2017-2022, they amount to  $2.189 billion over the five year period. See https://www.canada.ca/content/dam/dnd-mdn/documents/reports/2018/defence-investment-plan-eng.pdf at Table 3.

The numbers I use may seem odd, but they give an idea of the relative size of cultural versus defence expenditures in Canada: roughly one to three. Some may not see a Canadian navy to be telling "Canadian stories", but I disagree.

To the main point.

The CRTC has always claimed that it can extend the Broadcasting Act to full-motion video across the Internet. Only by the grace and favour of the Commission has it not been extended already. These are called 'exemption orders' and they condition the freedom to speak across the Internet by means of full motion video to the idea that the Canadian broadcasting industry does not need this level of protection.

But many now argue that it does need more protection. The arguments - and I have heard them all - come down to a) it is only a little extension of the Broadcasting Act b) it will not hurt a bit. The arguments are disingenuous, and sincerely held. Disingenuous because the proponents of such views proclaim that "exemption orders" will liberate most people's use of video from speech regulation, but fail to observe that exemption orders constitute in themselves conditions under which speech will be unlicensed. The very idea of licensing speech by permission of the government strikes many people in this country as a completely reasonable idea, as long as it is meant to save domestic broadcasting. As to the sincerity with which those views are held, I have no doubt they are as sincere in the defence of their economic privileges, as domestic milk producers are.

Any such extension of the Broadcasting Act will immediately engage a constitutional challenge. It will be based on the idea that it is not in the power of Parliament to assign to a regulatory agency so broad a power over speech, and it will be decided against the extension without limit of the licensing and penalty provisions of the Broadcasting Act.

Accordingly, I shall not be driving to Toronto to hear the Chairman of the BTLR tell us what a wonderful idea speech controls are in the cause of protecting domestic program production.

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Timothy Denton is a lawyer by training who practices principally in telecommunications and Internet policy and domain name issues, with a strong concentration on explaining what the technology is and what it means.

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Guest Tuesday, 04 August 2020
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