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Regulating the Internet under the Broadcasting Act, 2

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Peter Miller, a Toronto broadcasting lawyer, published an article in Cartt, the purpose of which was to argue against the positions I have maintained that the Broadcasting Act should not be extended to the Internet. Here is my response.

Peter Miller's article seeks to make it look reasonable that the government should regulate the right of people to upload  video to the Internet. His proposal - more like, his unstated assumption - is that people be licensed under the Broadcasting Act in order to post video to the net.

It is not a reasonable, practical or sensible idea.

Since he knows this as well as I do, his article seeks to confuse the issue at many levels.

The Internet is regulated as speech or printing, and is subject to all the constraints of the printed word. No permission of the state is required to write, blog, publish a book or a newspaper. Yet you are liable for what you publish.

So straw man #1 is the assertion that I believe the Internet is not regulated. It is regulated as to speech, but not as "broadcasting". It is regulated as to crime of all kinds. All  economic transactions that occur across are subject to a host of laws. Yet these laws do not amount to the kind of prior approval that you must get as a "broadcaster".

Canadian content receives extensive support, to the tune of several hundreds of millions a year. I have no objection to this continuing, though what needs to be subsidized may need to change. But that is for a future Royal Commission on the subject, which would be desirable if we are to revise the television subsidy system.

Straw man #2 is that I am opposed to the subsidization of Canadian television. I am not. Thus "the notion of any kind of content regulation, any kind of support for Canadian values or programming on the internet is, according to Timothy Denton, heresy –" is a serious misreading of my argument, at many levels.
-As I said, content on the Internet is regulated as speech or printing, with which I have no issue.
- Support for "Canadian values" is okay by me (but to the extent this translates into an iron rice bowl of subsidy for Torontonian smugness, it is objectionable)

Licensing content on the Internet by means of the Broadcasting Act is the sole object of my concern: it is the error and the futile gesture, and to this and this alone I object with every fiber of my being.

Licensing of speech via video means subjecting speech to the prior approval of government, under significant penalties if you operate without a licence. The webpages of newspapers these days are filled with videos. Hence newspapers, as a small example, would be "broadcasters", and made subject to state regulation of content, in Mr. Miller's proposals. But so would your uploading of  a video to Youtube be subject to licensing, or 'exemptions'  whose conditions amount to licensing. That would push Canada back into a regime of printing we last saw before the Glorious Revolution of 1688. You would publish by the consent of Her Majesty, as interpreted by the CRTC, if a video was included in what you published.

By avoiding the central question whether this is a good idea, Peter Miller has not even engaged the discussion. I suspect his goal is to obfuscate rather than argue the point, because he knows that such an proposal will face strong opposition from the Canadian public. The argument says: the Internet is regulated, so regulating it further under the Broadcasting Act is too trivial to concern your little heads with, and those who oppose its extension are unpatriotic and alarmist. You won't notice it and it won't hurt a bit.

Is regulation of the internet under the Broadcasting Act wise, efficient, proportionate, necessary and right, for good public policy? I do not consider his riposte to have engaged the real question. It is, in the words of Wolfgang Pauli, not even wrong. Wrapping this dead fish of an argument in patriotism will not make it right.

I want to hear from the Toronto rent-seekers a clear, specific, and reasoned rationale why Canadians who put up video on the Internet ought to be regulated under authority of the Broadcasting Act.  Why, exactly,  ought it to be a legal privilege to communicate by video across the Internet? The advocates of cultural subsidies for TV programming  have succeeded in defending their intricate system of licensing and cross-subsidies by extending broadcasting regulation. The cable industry was absorbed this way in the 1970s. They see no reason why the Internet in Canada should not be assimilated to broadcasting. They may well succeed, unless we are vigilant.

It is a debate well worth having. Nevertheless, this opening salvo blew smoke rather than try to hit the specific policy target. So let me ask once again: why, exactly, is subjecting millions of Canadian to direct licensing by the state, under the Broadcasting Act, a proportionate, effective, necessary, and wise measure to protect Canadian broadcasting? What are the alternatives?  It is a classic case of: when all you have is a hammer, everything looks like a nail. And when all you have is the Broadcasting Act, everything looks like a licensable activity.

These rent-seekers would sell out our freedoms to communicate just to maintain their subsidies, and I do not like it one bit. Nor should you.


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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, 19 November 2019
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