Bill C-10 doesn't violate free speech rights of social media users, justice department says

The Liberal government's controversial new broadcasting bill won't infringe upon the free speech rights of social media users, according to a new analysis report produced by the Department of Justice.

Justice Minister David Lametti oversaw the analysis of Bill C-10 at the request of MPs on the House of Commons heritage committee after recent amendments raised concerns.

Critics of the bill cried foul after committee members removed an exemption that would have excluded user-generated content posted to social media sites from regulation by the Canadian Radio-television and Telecommunications Commission (CRTC), the country's broadcasting regulator.

Internet law experts and opposition MPs said removing that protection would give the CRTC the power to regulate the posts that millions of Canadians upload every day to platforms like Facebook, Instagram, TikTok and YouTube — something they saw as a violation of the charter right to freedom of expression.

Bill consistent with charter, analysis finds

In its analysis, the government concludes the bill is consistent with the Charter of Rights and Freedoms — in part because an existing clause in the bill states that social media users who are not affiliated with the site itself won't be be subject to regulation when they upload audio and visual content.

"The effect of the proposed removal of [the user-generated content exclusion clause] is that an online undertaking that provides a social media service could be subject to regulation under the Act in respect of the programs uploaded by its unaffiliated users," the analysis reads, which was obtained by CBC News.

"However, Clause 1 (section 2(2.1)) remains. This means that unaffiliated users of social media services would not be subject to broadcasting regulation in respect of the programs they post."

The analysis also points out that the CRTC is compelled to fulfil its regulatory duties in a manner that is consistent with freedom of expression and the charter.

LISTEN: What is Bill C-10 and why is everyone so upset about it?

Day 68:57What is Bill C-10 and why is everyone so upset about it?

The federal government has been working on Bill C-10, An Act to Amend the Broadcasting Act, since November. But this week, everyone from Conservative Party critics to privacy experts to internet law analysts joined together to criticize the decision to eliminate a key component that they say could spell trouble for free expression and user-generated content. Michael Geist, a law professor at the University of Ottawa and the Canada Research Chair in internet and e-commerce Law, explains what Bill C-10 is all about, why he thinks it's a bad bill and what the roll out says about the Trudeau government's approach to tech policy.

Heritage Minister Steven Guilbeault introduced Bill C-10 to update the Broadcasting Act for an era when Canadians increasingly consume music, movies, TV shows, videos and podcasts either online or through mobile apps.

The bill would allow the CRTC to request information from foreign streaming services and app companies about how much revenue they make in Canada, compel them to pay into funds that support Canadian musicians, writers and artists, and require them to make Canadian content more visible on their platforms.

The committee suspended its clause-by-clause review of Bill C-10 this week in order to wait for the charter analysis.

Guilbeault is expected to appear before the committee on Friday, along with officials from the justice department, to answer questions from MPs.

C-10 could be subject to charter challenge, says expert

Michael Geist, Canada Research Chair in internet law, said the government's analysis doesn't engage with the main concern that has emerged about Bill C-10 in recent weeks.

"Under Bill C-10, all user generated content is treated as a program and subject to regulation by the CRTC. Never in Canadian history has the expression of so many individuals been treated as falling within the jurisdiction of a broadcast regulator," said Geist.

"Further, though there are limits to the CRTC's powers, the fact that it can prioritize or effectively de-prioritize content in the name of discoverability has a direct impact on the expression of millions of Canadians."

Geist said that, if it's enacted, the bill could be subject to charter challenges and a lengthy court battle.

At a press conference today, Conservative Leader Erin O'Toole called on Prime Minister Justin Trudeau to scrap what he called a "terribly flawed" bill. O'Toole said a Conservative government would repeal Bill C-10 if it passes in its current form.

"It is unfair to trample on the rights of Canadians, to try and mislead them by saying they must accept regulation of their social media in order to help artists," said O'Toole. "That is not only disingenuous but the deceit shows why they tried to sneak in this change."