I was invited to appear before the Canadian Heritage Committee for their study of Bill C-11. While my schedule didn’t allow it, the Committee permitted me to provide a written submission, reprinted below.

I would like to thank the Committee for the invitation and opportunity to submit a brief on Bill C-11, the Online Streaming Act. I am an Associate Professor of Political Science at Brock University. I am also a Senior Fellow at the Centre for International Governance Innovation in Waterloo, and an Associate Senior Fellow at the Kate Hamburger Kölleg/Centre for Global Cooperation Research at the University of Duisburg-Essen, Germany. My research focuses on the governance of the knowledge economy, including platform regulation. I am the author of several journal articles and the co-editor of two edited volumes on the topic, as well as the author of a book on Canadian and global digital copyright policy.

I wish to focus my comments on Bill C-11’s discoverability requirements, which are designed to promote Canadian content and the work of Canadian creators. The issue of discoverability may not have attracted the same level of attention as other parts of the bill, it represents a significant advance in Canada’s approach to regulating the global content intermediaries that have emerged as significant, self-interested, and unaccountable regulators in and of themselves.

Not a free market: Platforms are already regulators

The debate over Canadian cultural regulation used to involve two sharply defined positions. On the one side were those who argued that Canadian cultural production should be shaped primarily by the market and the demand for these “products.” The other side, which has been Canadian policy for the past several decades, argued that Canadian culture is more than just a commodity government intervention is necessary in order to help it flourish (Haggart and Tusikov 2022).

Online content intermediaries have complicated this debate. The emergence of online content intermediaries, or platforms, presents a direct challenge to Canadian policy autonomy. “Platform” is a slippery concept whose meaning changes depending on who is using the term, but one of its defining characteristics is that they are two-sided markets (or more) that bring together, for example, creators, users/consumers and advertisers (Gillespie 2010). This characteristic helps to give these companies immense powers to set the rules and regulations governing what happens on their platform: you either accept their rules or you stay home.

This power means that these platforms – when unchallenged by governments – can exercise regulatory and policy authority in much the same way as governments.

Platforms don’t exist in the market: in large part they aim to be the market, and the regulator. What this means is that the current alternative to government policy is not to “let the market decide,” but to turn Canadian cultural policy over to the whims and interests of foreign, largely American, corporations (plus China’s TikTok).

Platforms already regulate discoverability, and discriminate against creators

It is against this background that we should assess the fear that government requirements will change how, for example, YouTube’s algorithm would operate when it comes to surfacing content. YouTube, and every platform, already has its own rules for discoverability. Most importantly, these privatized discoverability regulations are not designed simply to surface the most popular content, or the content that you, the viewer/reader, is most interested in. These companies, understandably, design their platform in ways that they believe will maximize their own interests, however they decide to define them. This self-interestedness goes far beyond simply maximizing profits, in ways that actively disadvantage certain groups while promoting others. For example, YouTube has long been criticized for allegedly demonetizing LGBTQ content (Romano 2019). I say “allegedly,” because the fact that YouTube does not publicize its ranking criteria – an example of secret regulation – means that researchers have to reverse-engineer its algorithm to understand how it works.

As University of California, Santa Cruz sociologist Julian Rodriguez, argues, YouTube “privately discriminates against LGBTQ users creating content about queer sex education, lesbian sexuality, and transgender identity—topics in conflict with advertising and community guidelines. YouTube’s discriminatory practices (closely tied to automated algorithms) include demonetization, age restriction, video deletion, account termination, and harassment facilitation” (Rodriguez 2022, 1).

Government intervention with respect to discoverability should not be seen as upending a neutral marketplace. Platforms’ existing regulations already reward some creators and punish others. Rather, the choice before Parliament is what criteria do we want to determine discoverability? And who should be allowed to make those decisions?

Platforms’ already-existing secret, unaccountable regulation

Platform regulatory power, which is currently shaping discoverability and platform functioning generally, is wielded in opaque and unaccountable ways such that even those creators who currently enjoy success on a platform remain vulnerable to the platform’s self-interested whims, since the company running the platform can change the rules of the game any time it wants.

Unlike with government regulation, there are very few meaningful ways for ordinary citizens or creators to challenge platforms’ policy decisions. Especially in the absence of meaningful market competition – and the network effects associated with platforms effectively works to minimize such competition.

In contrast, for all the complaints about the CRTC’s work as a regulatory body – and I take no position on this issue – almost by definition it is more accountable than the global platforms that currently regulate this space.

Vague future outcomes and inadequate consultation

As welcome as the government’s tentative forays into platform regulation may be in principle, the vagueness of much of the conversation around the bill overall, including the need to wait for policy directives from the government, introduces uncertainty about how these powers will be used in practice.

Two final points. First, in the run-up to Bill C-11, as well as the government’s suite of current and proposed legislation focused on online activity, the government has missed a golden opportunity to educate Canadians about the promises and perils of government online regulation. The challenges raised by the online sphere may not be novel – issues like cultural protection and how to deal with hate speech are perennial problems – but they do pose their own issues. The government’s muddled approach to explaining both C-11 and its predecessor, Bill C-10, has not been helpful, to say the least.

Other countries have dealt more deftly with this problem than Canada. Brazil’s landmark Marco Civil da Internet legislation, which created a “Bill of Rights” for the internet, was preceded by a two-stage consultation. The first stage involved education Brazilians about the key issues, seeking their (informed) feedback. Only then did the government craft a proposal, which they then sent out for consultation (Haggart and Tusikov 2018).

This process allowed Brazilians to get comfortable with and better understand the idea of online regulation, while also serving to telegraph the government’s position on these issues. While I believe that fears that this bill, and the rest of the government’s digital agenda, will lead to the rise of authoritarianism and a loss of “freedom” are vastly, vastly overblown, more extensive consultations and education would likely have helped to help Canadians better understand what the government understands and intends by platform regulation, and (in this case) discoverability.

Second, I am concerned that the government has missed an opportunity to more deeply engage with the fundamental question underlying this debate, namely, what is Canadian culture? I strongly welcome Bill C-11’s focus on promoting Indigenous and French culture – themselves a strong justification for a focus on discoverability.

But if this bill marks the culmination of the government’s reconsideration of how to protect and promote Canadian culture in the 21^st century, it would be a huge missed opportunity. For example, the Australian Broadcasting Corporation’s Triple J Unearthed online radio station and platform (https://www.abc.net.au/triplejunearthed/) provides a comprehensive platform for emerging Australian musicians – including Indigenous artists – to upload and share their music, supported actively by the ABC in terms of promotion on its terrestrial and online stations, concerts and contests. Triple J Unearthed leverages the potential of the Web in a way that has a direct and positive effect on Australian artists and culture. Such a site could arguably have as much an effect on aspiring Canadian musicians as this bill’s discoverability rules.

Updating the Broadcasting Act for our new reality makes sense – policy objectives should drive tech, not the other way around – but in attempting to stick so close to the model as it’s always existed, we risk foreclosing new ways to think about Canadian culture.

It is also understandable that the government would want to rely on the CRTC as a lead regulator in this area – creating new bureaucracies is challenging, to say the least, especially absent the wider conversation regarding how we, as Canadians, should think about Canadian culture two decades into the 21^st century. It’s also understandable that it should be given some leeway to interpret its mandate: regulatory bodies require some room for interpretation, as not every contingency can be captured in legislation.

On this point, however, much will depend on the government’s directives, and on how the CRTC decides to interpret these directives.

I thank you for your time.

References

Gillespie, Tarleton. 2010. ‘The Politics of “Platforms”’. New Media & Society 12 (3): 347–64. https://doi.org/10.1177/1461444809342738.

Haggart, Blayne, and Natasha Tusikov. 2018. ‘Implementing a National Data Strategy: The Need for Innovative Public Consultations’. 142. Centre for International Governance Innovation. https://www.cigionline.org/publications/implementing-national-data-strategy-need-innovative-public-consultations.

———. 2022. ‘Battling the Myths of Internet Regulation as We Consider the Next Iteration of Bill C-10’. Centre for International Governance Innovation, 17 January 2022. https://www.cigionline.org/articles/battling-the-myths-of-internet-regulation-as-we-consider-the-next-iteration-of-bill-c-10/.

Rodriguez, Julian A. 2022. ‘LGBTQ Incorporated: YouTube and the Management of Diversity’. Journal of Homosexuality 0 (0): 1–22. https://doi.org/10.1080/00918369.2022.2042664.