Freedom Lost? Government Regulation of Speech on the Internet
“If we don't believe in freedom of expression for people we despise, we don't believe in it at all.”
- Noam Chomsky
The years 2020 and 2021 have brought with them a dizzying amount of laws and rules that on a prima facie basis clearly breach the Charter of Rights and Freedoms; for example, freedom of assembly, freedom of religion, and freedom of mobility (interprovincial and international). Whether these Charter breaches may be justified under section 1 is a question beyond the scope of this article.
Instead in this article I highlight that the federal Liberal government has proposed changes to the Broadcasting Act which prima facie breach the freedom of expression protections in the Charter and which if passed would give the federal government power to censor user generated content on social media.
The Broadcasting Act is a federal law which establishes the CRTC as the regulator and supervisor of the Canadian broadcasting system. The Act applies to any broadcasting undertaking carried on in whole or in part in Canada. The Act specifically excludes any application to telecommunications common carriers such as an internet service provider or other kind of telecommunications utility.
The government has tabled Bill C-10 as an act to amend the Broadcasting Act. One amendment in Bill C-10 expands the scope of the Act so that the CRTC shall also have regulatory and supervisory powers over “online undertakings” which are defined as undertakings “for the transmission or retransmission of programs over the internet by the public by means of broadcasting receiving apparatus.”
On earlier versions of Bill C-10 a new section 4.1(1) was added which specifically stated that the Act would not apply in respect of content that users of social media uploaded to a social media service. The intent of that exception was to clearly exclude from the jurisdiction of the CRTC user generated content.
However, the government has made it known that it intends to repeal or suggest a repeal of section 4.1 altogether meaning the exclusion for user generated content on social media services would be removed, the government would set the rules for online speech, individual users would be considered broadcasters, the CRTC could call users before them, and users would be subject to CRTC hearings and penalties. Thomas O. Ripley, Director General for Canadian Heritage, confirmed that interpretation at a Standing Committee Hearing on Canadian Heritage on April 23, 2021 (see the video on parlvu.parl.gc.ca timestamp 13:38:30).
Without the exclusion for user generated content, the government will have jurisdiction to regulate all user generated content on the internet including establishing terms and conditions for the use of social media services; for example, a rule may be established that only permits users to share news stories from a restricted list of government-approved sources.
When the initial draft of Bill C-10 was created on November 3, 2020, it was accompanied by a Charter Statement as required under the Department of Justice Act. The purpose of such Statement is to help inform the public and Parliamentary debate on government bills. In reviewing the effect of Bill C-10 on the freedom of expression under section 2(b) of the Charter, the Statement specifically mentions the exclusion from regulation of users of social media services as a reason that Bill C-10 would likely not infringe on section 2(b) Charter Rights.
Now that the government has indicated that it wishes to regulate user generated content, a great outcry has erupted from people of all political stripes. If Bill C-10 were to pass without the exclusion for user generated content, Canadian legislation in this regard would only be comparable with that of communist China. At the Standing Committee Hearing on Canadian Heritage on April 30, 2021, Conservative Members made efforts to suspend discussion on Bill C-10 pending the receipt of a new Charter Statement that considers Bill C-10 without the exclusion for user generated content.
Should the exclusion of section 4.1 be removed from Bill C-10 and the bill become law, the federal government will set the rules for free speech online. If that is not ominous enough by itself, it should be considered along with the fact that the government is paying media outlets from a $600 million dollar ‘bailout’ fund that the Liberal government established a few years ago.
During the last year governments have tried to justify the passing and enforcement of laws that prima facie breach Charter Rights on the basis of safety. By taking power to set the rules for speech online, I am not sure at all from what the government is trying to keep us safe.
Ryan K. Smith is a Lawyer and Trademark Agent at George Street Law Group LLP. He is a corporate and commercial lawyer with expertise in intellectual property law. Ryan is the author of the book Intellectual Property Law in Commercial Transactions published by Thomson Reuters. You can reach Ryan at (647) 806-6133 and firstname.lastname@example.org.