Timothy M. Denton

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Deep incoherence in the backers of C-11

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The Trudeau government’s plans to regulate the global internet and interfere with Canadians’ freedom of expression continues to confuse the legislation’s proponents.

 While opponents to the Online Streaming Act (Bill C-11) are clear that the CRTC's authority over the online world will restrict citizens’ ability to communicate without restriction, Parliamentary hearings this week elicited the deep incoherence of its defenders.

 

On the one hand, Pierre Trudel, a member of the Church of Broadcasting and a law professor at the University of Montreal assured the hearings that the new law could not possibly be used to control the freedom of expression of Canadians on the internet, because article 2(3) in the Broadcasting Act specified that the CRTC could not use its regulatory powers to restrict freedom of expression. I think Professor Trudel actually believes this nonsense. It was as loony as the idea that the Office of the Inquisition could not possibly restrict freedom of expression just because it had authority to prevent the publication of books.

 On the other hand the NDP member of parliament Peter Julian was obsessed that a certain gay-themed Out TV channel had been denied access to a number of ‘Asian’ – his word – streaming platforms. I am not making this up.

 Let is consider what this might mean. It happens that Brad Danks, the head of OutTV , complained to Julian      of the wrong that had been committed by these unnamed Asian television platforms because they had not bought his services, and that this amounted to “discrimination” in Julian’s words. In essence, they had exercised their right to say “no” for reasons they thought to be compelling. It may indeed be because their audiences are homophobic but it might also be that their viewers in Uzbekistan just aren’t into Canadian content.      

 But does Julian seriously expect the CRTC will have authority over business decisions of network platforms in other countries? After all, if the Kazakhs or Punjabis do not want Out TV programming, one would think they have every right to refuse it. Free enterprise and contracts necessarily imply the right to say no.

 But whether or not they will have that right, what does the CRTC have to do with Asian television/cable networks? And could C-11 fix this problem of unjust discrimination by foreigners against a Canadian television specialty channel? The answer would appear to be yes. According to Bill C-11, the CRTC has jurisdiction and regulatory authority      over all “programs”, which means that the regulator is supposed to have authority over all full motion video or audio in the world, regardless of language. A program is a program is a program, and it is all “broadcasting” regardless of where it originates.         

I am not making this up, the government is.

 And yet people watching the Heritage Committee’s hearings into C-11 continued to observe      the erudite Professor Trudel arguing that the CRTC is not allowed to interfere in freedom of expression of Canadians. Surely they were confused then, to hear      Julian, insist      that the CRTC ought to exercise control over the Internet to force international platforms      to carry a licensed Canadian      programmer. Apparently they do not have the right to say no. Maybe Kazakhstan or Mongolia does not want Out     TV, and maybe this is not a problem that Canada needs to fix. I am uncertain whether Julian has entertained this idea.

 Between Professor Trudel and  Mr. Julian, MP, however, I would argue that the Member of Parliament has the better understanding of what the CRTC is all about. The Broadcasting Act and its potential successor C-11 are entirely about control of who gets to speak, what is said, and what will not be said. It has always been thus, as my colleague Peter Menzies pointed out recently. Pornography and religious broadcasting have always been treated, for instance, by the Commission as toxic, with religious programming as slightly more toxic than pornography. Licensing controls who is allowed to speak.  Speech codes and subsidy decisions control what is allowed to be said. A Broadcast Standards Council , which is under CRTC authority, reproves those who offend current ideas of expression. And as I have related before, a Finnish-language church service out of Thunder Bay must play a Canadian hymn at every service, because of Can Con requirements.

 For Professor Trudel to say that the Act prevents the CRTC from controlling speech while simultaneously upholding Julian’s point that the purpose of the new Act is to impose upon the global Internet values consistent with contemporary Canadian morality, is to engage in intellectual incoherence that surely is only understood by the confused authors of Bill C-11

 

You cannot get a man to understand what he is paid not to understand.

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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 Thursday, 18 August 2022
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