Timothy M. Denton

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Regulation of speech by any other name

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Today the CRTC issued a hybrid video on demand exemption order. It perfectly illustrates the creeping regulation of speech by means of broadcasting legislation that I warn against.

It will not stop; it will only expand, until the day the constitutional challenge is launched against the CRTC's pretensions that Parliament has the authority to legislate the content of point to point communications over the Internet.

First, from the CRTC's perspective, it is allowing regulatory flexibility to Canadian broadcasters to engage in on-demand delivery of programming.

Here is what the CRTC says about hybrid video-on-demand services (HVOD):

They will also have the ability to offer their services on a closed BDU (cable) network like traditional VOD (video on demand) services without having to meet the specific regulatory requirements relating to financial contributions to and shelf space for Canadian programming applicable to traditional VOD services. However, to be eligible for exemption, the HVOD services must also be delivered and accessed over the Internet and such access cannot be dependent on subscription to a particular BDU, ISP or mobile service.This will help remove barriers for Canadian companies to compete on an equal footing in an on-demand environment, while ensuring that Canadians throughout the country have access to programming, including original Canadian programming, on Canadian-operated online platforms.

To the CRTC, this looks like de-regulation, sensible measures to reduce the degree of regulation that applies to television production and distribution industry in Canada. This is what they will tell themselves and us as they proceed to try to assimilate the Internet  to broadcasting, step by step. They will not allow themselves to see what they are doing. It will all seem to be sensible, evolutionary policy, such as sober regulators charged with important cultural responsibilities would rationally undertake.

So where is the kicker? Here it comes.

Requirements that HVOD services adhere to standard industry codes and not distribute programming that contains anything that contravenes any law, abusive comment or abusive pictorial representation, obscene or profane language or pictorial representation, and false or misleading news

  1. David Ellis, Benjamin Klass and Dwayne Winseck submitted that these requirements were out of place and “highly restrictive” when applied to online content.
  2. The Commission considers that it is unlikely that HVOD services would not be able to meet the criteria, given that the codes in question have been co-created with the industry and would generally already apply to that programming when offered by other licensed or exempt programming services. Further, the requirements in question are generally intended to enforce other legal requirements that would already apply to online services, regardless of whether or not these criteria are included in the exemption order. Accordingly, the Commission has maintained these requirements.

False or misleading news? How about John Stewart or the Onion?

Abusive comment? How about Pat Condell? or 90% of the partisan commentariat?

Obscene or profane language? ditto

Broadcasting codes are suited to restricted choice of channels. There is a strong argument in a 12 or 30 channel world for restrictions on free expression.

But in the Internet universe? There are zillions of sources of information, dis-information, piety, blasphemy, porn, serious moral discourse, how-to manuals, senseless distraction, cute and fuzzy fluff, arcana, the ludicrous, the sublime. Codes of broadcast standards are just another way to push the broadcasting universe into the Internet.

I am reminded of those Communist states that tried to get rid of the central command economy by devolving socialist measures to the factory level. They tried it in Hungary and Yugoslavia. We know how all that turned out.

The CRTC simply does not understand what it is up to, when it comes to extending broadcasting regulation over the Internet. A man will not understand what he is paid not to understand.

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Here is what an "exemption order" has to say about free speech. These are the terms of Broadcasting Order 2015-356 as regards content. It is all standard broadcasting regulation. (The numbering is skewed by the blog's software).

  1. The undertaking does not distribute programming that contains the following:
    1. anything that contravenes any law;
    2. any abusive comment or abusive pictorial representation that, when taken in context, tends to or is likely to expose an individual or group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability;
    3. any obscene or profane language or pictorial representation; or
    4. any false or misleading news.

    For the purpose of section (b), sexual orientation does not include the orientation towards a sexual act or activity that would constitute an offence under the Criminal Code.

  2. The undertaking shall adhere to the Equitable Portrayal Code, as amended from time to time and approved by the Commission.
  3. The undertaking shall adhere to the Pay television and pay-per-view programming code regarding violence, as amended from time to time and approved by the Commission.
  4. The undertaking shall adhere to the Industry code of programming standards and practices governing pay, pay-per-view and video-on-demand services, as amended from time to time and approved by the Commission.

 

 Be good, be safe, or you will be sorry.

 

 

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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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