Speech on Bill C-11 (February 1, 2023)

Honourable senators, after weeks of committee hearings and hour upon hour of testimony on Bill C-11, I feel as strongly as ever about the extraordinary overreach inherent in this poorly conceived bill. The legislation — the very idea itself — is out of touch with reality and with the people who actually use this technology for learning, teaching, communication, entertainment or for earning a living.

The government insists, despite much evidence to the contrary, that this is simply a modernization of the Broadcasting Act. It is neither simple, nor just an update of the rules. The internet is most definitely not a traditional broadcaster, so trying to impose the broadcasting rules, including content rules, Canadian or otherwise, is a flawed approach and will bring unintended consequences.

The internet and its platforms are global structures and entities — infinite in size and time — and are, therefore, completely unlike a finite, 24-hour, linear radio or TV station where you can actually enforce a percentage requirement or quota for designated content. For example, 30% of 24 hours is measurable and enforceable. How do you impose quotas on a system that crosses all borders, including time and space?

Well, this concept of discoverability is used. It will force platforms to make some content easier to find, or more discoverable, and other materials less discoverable. This is not an update of the broadcasting rules. This is government, through its agencies like the Canadian Radio-television and Telecommunications Commission, or CRTC, deciding what is most important, and then deciding that it is also most important for you and me. I cannot imagine that the global internet audience will be any happier than I am about the domestic content choices selected and promoted by our government overriding their own personal choices.

Our behaviour online is what teaches the algorithms to offer us more of what we like. The platforms track our interests, preferences and browsing habits, and then show us more of what we have chosen — not what the government has chosen. This is at the very heart of this bill — the fundamental issue of algorithmic manipulation. For me, it raises this question: Should any government or organization in a democracy be given the authority to override my choices or the choices of users everywhere?

We know that Bill C-11 gives the CRTC the ability to manipulate algorithms because of the chair’s own admission. Forcing platforms to manipulate algorithms to meet quotas — or to promote some content and obscure other choices — is simply not the business of governments. If you, as a consumer, enjoy country music or podcasts about philosophy, you would want to be able to access it without interference, and this kind of interference goes beyond the socially agreed-upon reasons for censorship, such as cases of hate speech or the incitement of violence or defamation.

There is also a fundamental arrogance with the notion. I ask honourable senators and Canadians listening or watching at home, who is up to the task of being censor-in-chief, deciding what you should see and hear? Would you give this superpower to the government of the day with its own biases and political interests? You might share the views of a certain party, but what if the government changes? Do you want a government you don’t agree with having such power?

In the words of Christopher Hitchens, one of our great writers:

. . . every time you violate or propose to violate the free speech of someone else . . . you’re making a rod for your own back . . . .

This whole concept is the antithesis of free expression. Free speech is not just about your rights; it’s about the rights of others, even those with whom we disagree, to have their say. It’s about my right to disagree with them, engage them or ignore them, but not to deny them the right to express their views. So many of our great thinkers have opined on the fundamental importance of free speech. Linguist Noam Chomsky was crisp: “If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.”

This bill poses exactly the same issue. Using discoverability to promote some anointed music, art, language or idea, you are silencing others. Let me make my choices about what I want to hear, listen to, debate or disagree with — or even discover. One of the most appealing characteristics of the internet is the serendipitous discovery — by searching for something you like, you stumble upon something unknown or special. Curiosity cannot be legislated or regulated by government.

I gratefully acknowledge the committee’s recognition of the importance of freedom of expression and journalistic independence in section 3.1 by adopting my amendment. It is fundamental, given that this bill gives extraordinary new powers to the CRTC, and to the government itself. At the very least, it must explicitly ensure protection of our right to free and open expression. Let us hope that it is accepted.

As mentioned earlier, the impact of this bill on content producers, particularly on young Canadians building their careers online as part of the digital economy, is very concerning. From TikTok to YouTube to podcasts, there is a thriving digital space that has provided new avenues to share information and ideas, and to carve out a professional future and be paid for it. This bill is truly counterintuitive because by picking favourites, the government is hurting the very people it is purporting to help — this new generation of Canadian content creators and their audiences. Their reach and success will be impacted if platforms, or even countries, decide our rules are unfair.

There has been testimony, supported by direct and strong representations from the U.S. government, that discoverability and the requirements to promote selected Canadian content violates provisions of our trade agreements, and would be seen as interference with the conduct of a domestic business in the free‑trade zone. Our trading partners might seek recourse or retaliation. As a trading nation, do we want to become the protectionists that we decry?

Your committee proposed amendments we hope will help protect content producers and entrepreneurs from the impact of this bill. The amendment to section 4.2 offers some assurances to the small, amateur creators that — with the removal of the revenue test and the narrowing of the definition of a “program” — they will, for now, escape some of the costly bureaucratic burdens imposed on others. If the CRTC does not intend to capture small content creators within its sphere, it still has the power to do so if it chooses or is instructed to do so. Again, the CRTC chair admitted that in testimony.

The committee also voted for the removal of clause 7(7) to try to limit the grip of the government on the CRTC and its policies. This arm’s-length institution was designed to be a regulatory body, not a political body, and any oversight should not be at the whim of political considerations of the day. Now we must wait and see if arm’s length is an irrefutable principle or a matter of convenience. Since this bill gives the government and the government-appointed CRTC new powers, the chair and the minister should be required to appear before parliamentary committees in both places on a regular basis so that we can assess the implementation and the impact of this act.

Ultimately, the folly of this entire endeavour is that our digital world is nothing at all like legacy media, and the space and pace of information sharing and content production is unprecedented. Canadians value free speech. They do not want to be told what they should consume, and they do not need a nanny state to present them with material that they are more than capable of finding on their own, if they wanted to in the first place.

Former U.S. president Harry S. Truman warned of this:

Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures . . . .

That is what I fear with Bill C-11 — more command and control over the flow of information.

I believe that what this bill aims to do is not, and should not be, the business of governments. It inhibits markets, innovation and creativity, and I cannot support it.

For now, we await evidence that the government has heard those witnesses who came before us to offer ideas, to build a way forward in the new digital world. I hope that the government will hear their pleas because the government’s track record on heeding the considered advice of the Senate is not encouraging. We hope this time it will be different, but I’m not optimistic. Thank you, colleagues.