Timothy M. Denton

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The BTLR Report: hubris and overreach

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How could any group of seven apparently sane and certainly highly educated specialists believe that Canada will legislate into being a system of state control of communications as pervasive, as illiberal and as unfree as what they have proposed in the final report of the Broadcasting and Telecommunications Legislative Review (BTLR), which they submitted to the federal government last week? By grossly expanding what is called “broadcasting,” the report’s authors aim at nothing less than a statist counter-revolution against the internet.

 

The report is a classic case of perceptual blinkers. It sees the internet as “broadcasting,” so everything about the internet is relentlessly squeezed into the conceptual model that a half century of micro-managing Canadian regulation has created for “broadcasting.” When all you have is a hammer, everything looks like a nail. Or as Einstein said, theory determines what is observed.

Broadcasting may seem to be a technology or a kind of business. It is not; in Canada, at least, it is a legal regime of pervasive regulation and licensing. The BTLR report proposes to wreck what makes the internet free, popular and innovative and to make it resemble the Canadian broadcasting system: tidy, licensed and harnessed to government objectives. The report has already been trashed by my former CRTC colleague Peter Menzies and by the University of Ottawa’s Prof. Michael Geist as mad regulatory overreach, and with good reason. The question is how did the review panel arrive at such insane regulatory hubris?

When thinking about communications, we have two models to choose from: broadcasting and printing. After several political revolutions, the printing system eventually became free of government licensing, while broadcasting remains heavily regulated. Printing needs no prior permission of the government whereas broadcasting is only legal through government licence. Fearsome penalties apply for broadcasting without a licence. Broadcasting is a punitive and restrictive legal regime for securing compliance with a set of national political goals.

In Canada, the broadcasting regulatory system grew into a nationalist response to American cultural dominance. The system embraces its regulated entities (radio, TV and cable) and seeks to channel private and public funds to Canadian program production. It assumes Canadian programming is expensive to produce so American programming has to be restricted and the profits from it channelled into domestic TV production. The broadcasting system assumes the few talk to the many in a largely closed system that can be harnessed for purposes of public policy. The authors of the report are convinced the problem the Broadcasting Act sets out to solve is as relevant and pressing as it ever was. So just as cable television was assimilated into the broadcasting regulatory system back around 1980, so shall the internet be “harnessed” to the Canadian broadcasting system now. In fact, the same lawyer who won the cable system argument back in 1980 in the Capital Cities cases, Peter Grant, now at law firm McCarthy Tétrault, was the principal legal mind behind the BTLR report 40 years later.

Whether the internet’s greatest feature is innovation without permission or permitting people to speak without permission is an open question. The BTLR recommendations envisage a wholesale transformation of a system of free expression into a government-directed system of licensees. It is boldly statist in its goals. By contrast, a 1997 legal opinion for the Department of Industry simply assumed that what mattered on the internet was the activity and concluded that “no glaring problems have been found that mandate a massive government intervention.” It therefore saw no reason to subject the Canadian portions of the internet to broadcasting regulation.

What has changed? Everything — except the thinking of the broadcasting legal fraternity, which has never deviated from its belief that the internet constitutes “broadcasting” whenever full-motion video is involved. With the BTLR report, the range of what will be considered broadcasting expands even further to include text online.

The report is not the final triumph but the last hurrah of the broadcasting model. It does not prefigure a complete triumph of Canadian regulatory oversight of what people say and get through the internet. Nor is it the dawn of a monstrous growth in the regulatory power of a renamed CRTC, as my colleagues rightly fear. Once newspapers, communications companies and ordinary citizens wake up to this massive overreach, it will become a dead letter, if it is not already.

In the meantime, we can only marvel that they thought they could get away with it.

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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 Monday, 26 October 2020
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