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'It's about promotion of Canadian choices': Witness tells committee Bill C-10 does not impede freedom of speech

'Nobody has to watch it if they don’t want to watch it. So there is actually no restriction on freedom of choice whatsoever'

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Allowing the broadcast regulator to force social media platforms to show more Canadian content to users isn’t a freedom of speech issue, expert witnesses told MPs Monday, as a separate group of academics urged the government to ensure such measures don’t harm access to an open internet.

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Companies already use algorithms to decide what posts Canadians are presented with when they open up platforms like YouTube, and Canada should take the opportunity to ensure those algorithms also promote cultural objectives, two members of the advisory panel whose work led to Bill C-10 said at a parliamentary committee meeting.

Algorithms operated by companies like Amazon and Netflix aren’t neutral and driven purely by consumer preferences, said Janet Yale, who headed the Broadcasting and Telecommunications Legislative Review panel.

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“Once we acknowledge that algorithms are not agnostic, then it’s really a question of, does cultural policy have a role to play” in ensuring Canadian choices are available in a world of “unlimited amounts of content,” Yale said.

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“That’s just the simple principle of discoverability. And it’s not about interfering with freedom of choice, it’s about promotion of Canadian choices,” she said. “Nobody has to watch it if they don’t want to watch it. So there is actually no restriction on freedom of choice whatsoever.”

But a group of academics and experts wrote to the government Monday to say that Bill C-10, alongside other measures the Liberal government has proposed – including blocking or forcing take downs of some illegal content – has the potential to “adversely impact our freedom to access online content of our choice.”

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The open letter from the Internet Society, signed by academics at the University of Toronto and the University of Ottawa, as well as a former CRTC chairman and commissioner, urged the government to more carefully consider the potential impacts of its various pieces of legislation that affect the internet, including C-10 and upcoming legislation on hate content.

“We call on you to stop harming the Internet, the freedoms and aspirations of every individual in this country, and our knowledge economy through overarching regulatory policies that will have significant, yet unintended consequences for the free and open internet in Canada,” the letter to Prime Minister Justin Trudeau says.

The Heritage committee heard from Yale along with three other witnesses chosen by the various political parties to provide insight on the issue of whether government amendments to Bill C-10 violate freedom of expression.

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The bill, which aims to set up the Canadian Radio-television and Telecommunications Commission to impose Canadian content requirements on online platforms like Netflix, became the target of criticism and controversy in April when the Liberal government removed a section of the bill that exempted user-generated content from regulation.

The government then proposed a further amendment, which would limit the CRTC’s powers over content posted to social media to discoverability, or the promotion of content from Canadian creators.

But giving the CRTC the power to determine what content is prioritized is a freedom of expression issue, said Michael Geist, Canada research chair in internet and e-commerce law at the University of Ottawa and a signatory to Monday’s letter.

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“What you are seeing is that the government, through its regulator, gets to determine what gets prioritized. Not on a specific piece of content per se, but it’s going to make choices, elevating some, deprioritizing others,” Geist told MPs on the Heritage committee. “That clearly has an impact on individual Canadians’ expressive rights.”

Geist said it’s also unworkable for the CRTC to decide what will count as Canadian.

“Suddenly now we’re going to ask the CRTC to decide which cat video constitutes Canadian content, and which one doesn’t,” he said.

Pierre Trudel, a law professor at the Université de Montréal who served on the government’s advisory panel along with Yale, also said the algorithms that determine what Canadians see on social media platforms are not neutral.

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He added they are currently purely driven by commercial priorities, and aren’t subject to any rules that ensure they’re free from bias. Trudel said C-10 would allow the CRTC to ask the large platforms how their algorithms work, and to ensure those algorithms help reflect Canadian values or the values that are in the Broadcasting Act.

Geist said the issue isn’t about algorithmic transparency, which is “absolutely necessary” but actually covered by other legislation proposed by the government.

He argued “it’s not about whether we regulate algorithms, it’s about whether the CRTC and the government uses those algorithms to determine or prioritize or deprioritize what we can see.”

Instead C-10 “substitutes in some ways the government’s choices for the companies’ choices,” Geist said.

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