The Broadcasting and Telecommunications Legislative Review report is a threat to freedom of speech

The apologists for Canadian broadcasting have a habit of saying that “it won’t hurt a bit” and “it won’t cost very much”. The article “No need to cry foul over broadcast review panel’s report” by Friends of Canadian Broadcasting’s Daniel Bernhard is a case in point.

The thrust of the article was that we have nothing to fear from the proposals, whether for freedom of speech, regulation of the Internet, or taxation of it. Let’s begin with our points of agreement.

Mr. Bernhard is right when he says that the platform giants can act as censors and shapers of expression. He is right when he observes that the newspaper business is in decline, as advertising revenues shift away from printed media.

He argues that a robust extension of Canadian broadcasting law to the Internet will solve these problems. Expand government powers under the Broadcasting Act by licensing and registering on-line entities, including ‘print’ - primarily alpha numeric- media, and exempt from regulation what is not commercially significant.

There are two legal regimes for ‘speech’ through artificial means: print and broadcasting. Printing requires no prior permission from the government, though you remain liable for slanders, frauds and other criminal and civil offences. Broadcasting requires a government licence. The original justification for this was that the number of ‘speakers’ who could ever broadcast were few, their audiences large, and they used precious radio spectrum to speak to their audiences. Over time the justification for licensing has become detached from the use of radio spectrum, and has been grounded in concerns for Canadian content.

The BTLR goes even further, to recommend that ‘media content’ be covered by the Broadcasting Act, and that media content should include ‘alphanumeric news content’. (R51) Those carrying on a ‘media content undertaking’ via the Internet would be required to register with the CRTC (R56) and the regulator would be able to establish requirements and payments of fees for classes of registrants (R57). The Commission would have discretion not to require registration when it judged that regulation is ‘neither necessary nor appropriate to achieve media content policy objectives’ (R58), the exemption power. There will always be a reason why regulation is necessary or appropriate.

You need not have gone to law school to read this – correctly- as a formula for state regulation of the Internet. To be required to register is to be subject to fees and conditions. To be exempt from registration is to be subject to the terms and conditions of the exemption order. The boundaries of what is exempted can shift with a changed Commission, whose appointees change with the passage of time and governments.

Thus the claims of Mr. Bernhard that freedom of speech and of the press are not under attack by the BTLR rest on a complacent misreading of facts, and a naivety about the tendency of governments to exercise powers they believe they have for what they consider to be the public good.

The claim that prices will not be raised for consumers is equally without merit. The CRTC will be given powers to establish fees for websites it deems fit to be registered. This is not about sales tax for Netflix, or other on-line services, which Canada might impose. This is about transfers within the media communications system, so as to treat domestic firms favourably.

The issue is what to do about the power of large platforms to control speech and advertising revenues. The BTLR tries to get at the problem through hugely expanding government powers over speech. The diagnosis has some merit but expanding state control of what is said on the Internet fails to solve the problem of the large platforms. Using an expanded Broadcasting Act in this way is like trying to lift the Gross National Product with a set of tongs. The solution to the problems of large private power may require corporate break-ups: I don’t pretend to know, yet. But for sure we do not need more governmental control of speech. If you see a disconnect between the stated problems and the proposed solutions, you are not alone.

Timothy Denton is a former National Commissioner of the CRTC, 2009-2013