My Concerns With the Broadcast and Telecommunications Legislative Review Panel Report, and Thoughts About Taming the Internet

In January, the panel tasked with the review of Canada’s telecommunications framework issued its report. Some of the recommendations are to be saluted, but others have left me worrying, most importantly the recommendations that aim to effectively regulate the Internet the same way that we have regulated broadcast since the last century.

This post is certainly not intended to be a comprehensive discussion of the report. If you’re looking for such a thing you can, well, read the report to hear the panellists’ explanations for their recommendations, or head to Michael Geist’s blog to hear about the other side of the conversation.

The report is a concern to me because, well, I work at CanLII (among other things that I do with my life of course).

A growing part of CanLII’s activity is the development and operation of a growing secondary materials collection. These efforts have started in 2013 with the publication of the eText on Wrongful Dismissal and Employment Law, and the launch of CanLII Connects in 2014. As of 2018, as many Slaw readers are aware of, we launched an extended secondary materials collection containing law journals, reports from various associations, newsletters, conference proceedings, etc.

Operating a platform where people comment on the law is now one of CanLII’s core activity. As is probably obvious to the owners of every single pair of eyeballs reading this post, the law is a by-product of the activity of all three branches of the State: legislatures pass statutes, governments rule through regulation, decrees and administrative decisions, and courts issue decisions.

It would be inappropriate for a website whose very role is to host content that discusses the activity of the State be subject to regulations (issued by the State of course) about its content. That’s pretty much the gist of my post.

It’s reassuring that the government seemed to back off from the recommendation that websites obtain licences. Indeed, both the Prime Minister and Minister Guilbeault said that their government didn’t intend on imposing a licence requirements or generally policing content (beyond cultural policy like Canadian content provisions I guess).

The key part of the last sentence is “their government”. I don’t think we currently have an idea of what an eventual statute implementing recommendations from the report would look like, but I’m always worried that a broad framework that is “properly” used by one government can become a weapon in the hands of another one.

Call me paranoid (you wouldn’t be first), but maybe I’m learning from experience, so here’s a story:

In my prior life in private practice, we once organized an event with government representatives to inform our clients about the upcoming anti-spam legislation. In-house lawyers from major clients of the firm were in the room. All “blue chip” clients. Government representatives generously and kindly participated in the session, I grant them that. But at one point one of them said something along the lines of “[w]e are aware that the current draft of the statute is very broad, and seems to apply to many activities that would not be considered as spam by most people. Still, you know that if we make the language of the statutes and regulations softer to prevent disruptions to good businesses such as yours, the shady spammers we are really after will take advantage of these loopholes.”

Predictably, the first fines under the new legislation were issued to a similar “good” business, and we know that people in charge of the compliance with the spam legislation don’t hesitate to go after “good” businesses. For all I know I’m also still getting spam despite all my spam quarantining efforts.

Sadly, history is littered with much more dramatic examples of well-intended initiatives that have eventually been misused. I’ll avoid both Godwin law, and politics in general, by only referring to one very geeky example.

As a general rule, I caution us all against any temptation to put the Internet in the same highly regulated basket as broadcast. There were reasons (a limited supply that is) why broadcast was so regulated.

I would also caution us that overregulation of legitimate activities on the web risks pushing people in shadier directions. The Internet is hardly watertight: if it gets “complicated” (for instance through overregulation) for good faith Canadian actors to provide news on the web in Canada, the field will be occupied by people who don’t really care about compliance with Canadian law… just as those spammers who keep spamming us despite our convoluted anti-spam laws don’t really care about those same anti-spam laws.

Now a little change in tone. I was (mildly) surprised by the relative lack of reaction to the report in traditional press, at least in Québec (perhaps because the implementation of Canadian content objectives in the Report would benefit the cultural industry that is pretty unanimously rooted for here).

Sadly, aside from Professor Geist and a few other voices in social media, most critics seem (in my observation) to come from partisan commentators framing it as a partisan issue (it shouldn’t be). This relative apathy suggests that the report comes at a time when a large segment of the population is seeing the Internet as the main cause for many of our current problems. In this context, to say of a proposed policy that it “tames the Wild West” or “ends the party” is generally seemed as a positive spin to attach to the introduction of an Internet-related bill or policy recommendation. In the same vein, the U.S. EARN IT Act, for instance, is said to nefariously leverage anti-tech sentiment in support of bad policy.

If we think the current state of the world is only the result of fake news, alt-right lies propagated online, election hacking by the Russians, and young people doing stupid things because of the Internet, we’re hiding our heads in the sand and we’ll be in trouble for a long time. If our first instinct when facing a problem is to want to “tame” the Internet, we’re probably not thinking enough about the underlying issues that the Internet itself likely hasn’t caused, but rather exposed.

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