Michael Geist: Why Bill C-10 undermines the Government’s commitment to the principle of 'Net Neutrality'

Michael Geist: Why Bill C-10 undermines the Government’s commitment to the principle of 'Net Neutrality'
Posted on May 28, 2021 | Michael Geist | Written on May 27, 2021
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Bill C-10 was once again a major topic of discussion during Question Period in the House of Commons yesterday, with questions focusing on the broad scope of the law, freedom of speech concerns with regulating user generated content, and the inconsistencies in Cancon rules. Yet the issue that seemed to garner increased attention was whether Bill C-10 violates the government’s longstanding commitment to net neutrality.

The net neutrality issue was sparked earlier this month by Canadian Heritage Minister Steven Guilbeault, who suggested in an interview that critics of Bill C-10 were supporters of net neutrality, a comment that many took to indicate a shift away from supporting net neutrality. The government has since denied a change in policy and maintains that Bill C-10, which includes the discoverability rules that would empower the CRTC to prioritize or de-prioritize content on user social media feeds, does not undermine net neutrality.

The government’s response is based on the position that net neutrality only involves the Telecommunications Act and the role of Internet providers. For example, yesterday Prime Minister Justin Trudeau argued that Bill C-10 “does not affect the work and activities of Internet service providers in Canada. It has no impact on Canada’s commitment to net neutrality.” In other words, since Bill C-10 implicates the Broadcasting Act and Internet services, there is no net neutrality issue. 

Despite those assurances, I think there is a strong case that the Bill C-10 discoverability provisions undermine the principles of net neutrality. Net neutrality in Canada is largely derived from two provisions in the Telecommunications Act. Section 27(2) on unjust discrimination:

No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage.

and Section 36 on the content of messages:

Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.

Taken together, the provisions form the bedrock of net neutrality in Canada by prohibiting powerful intermediaries from using their position to give themselves an undue preference (eg. grant a preference for their content over third party content) or interfere with content that runs on their network. When the government’s own net neutrality resolution was introduced in 2018, MP John Oliver noted:

Net neutrality allows every Canadian to access lawful content on the Internet without interference from third parties. It underscores our freedom to express and share ideas. Net neutrality prevents third parties, like ISPs or telecommunications providers, from choosing which content Canadians see.

How does Bill C-10 come into play?

First, while the focus of net neutrality is typically on telecom companies, Bill C-10 envisions a different intermediary or third party – the Canadian government via the CRTC – choosing which content Canadians see by prioritizing or de-prioritizing content that appears in Canadians’ feeds. Internet sites and services will still be available to Canadians (assuming the sites aren’t blocked given the onerous regulations), but the government’s Internet regulatory framework will mean that Internet content will not be treated in a neutral, equal fashion. The mandated Canadian content discoverability requirements will mean that a government regulator will influence what Canadians see when they access Internet services, invoking the same concerns regarding interfering with content and user choice. The intermediary may have changed, but the principle is largely the same.

Second, the separation of broadcast and telecom not so straightforward. Indeed, Bill C-10 marks the government’s efforts to bring telecom within the broadcasting framework by arguing that Internet-based services that have long been covered by telecommunications laws are now subject to broadcasting rules as well. The suggestion that foundational net neutrality safeguards cease to exist under such regulations undermines important protections.

Third, this is not a new issue as the CRTC examined it in its 2017 net neutrality decision involving differential pricing practices. At the time, cultural lobby groups such as the CMPA argued that the CRTC should consider different pricing plans “to promote the discoverability of and consumer access to Canadian programming.” That approach was backed by columnists such as the Globe’s Kate Taylor, who supported data discounts for services with large Canadian content catalogues. The CRTC rejected the proposal. Its analysis is worth revisiting, both because there is no artificial separation of broadcast and telecom laws and because the same considerations (no reliable identification of the content, practical implementation issues, and benefits outweighed by the disadvantages) apply today with Bill C-10:

The creation, support, and discoverability of programming made by Canadians underscore many of the policy objectives set out in subsection 3(1) of the Broadcasting Act. Those objectives could be supported by differential pricing practices that would make that content available on Internet platforms in an easy and inexpensive way. However, the conception and implementation of such practices would be problematic for the same reasons that differential pricing practices based on content categories would pose a problem. For instance, while longstanding Canadian content recognition procedures are in place, the reliable identification by ISPs of this content, as well as the regulation and enforcement of the differential pricing practice, would be difficult.

When the parties who suggested such use of differential pricing practices were asked how they would implement their suggestion, they did not provide details at a practical or technical level. The record does not provide any basis to demonstrate that differential pricing practices could be fully and reliably implemented in such a way as to ensure that all programming made by and transmitted to Canadians in the online space would be properly captured.

In light of this analysis, the CRTC’s concluded:

Given all the drawbacks and limitations of using differential pricing practices as a way to support and promote Canadian programming, the Commission considers that any benefits to the Canadian broadcasting system would generally not be sufficient to justify the preference, discrimination, and/or disadvantage created by such practices.

Substitute the words “discoverability of user generated content” for “differential pricing practices” and much the same analysis would still apply today.

Fourth, even the Broadcast and Telecommunications Legislative Review Panel (the “Yale Report”) that serves as the blueprint for the government’s Bill C-10 plans specifically warns of the risks to net neutrality principles by other intermediaries, noting “other emerging issues that go beyond classical Internet access have much in common with the goals of net neutrality.” The report itself opens the door to applying net neutrality in ways that extend beyond conventional telecommunications services.

Fifth, while some may argue that algorithmic choices determine the content of feeds and it is therefore better to substitute the choice of the CRTC for that of large tech companies, there are notable differences. Where the tech companies use their position to engage in self-dealing or unreasonable preferences, the law should step in. That has happened in Europe with respect to search engine results that led to a multi-billion dollar fine and has similarly been raised with respect to Amazon. Canada needs to be more aggressive on tht front. But social media and streaming companies are motivated by keeping users on the platform (either to maximize ad revenue or maintain subscriber revenue), not by pushing content for which the user may have demonstrated little interest. The platform algorithms raise concerns and require greater transparency, but substituting government mandated algorithms is an even riskier policy that interferes with user content choices and undermines the principle of net neutrality.

The post Why Bill C-10 Undermines the Government’s Commitment to the Principle of Net Neutrality appeared first on Michael Geist.

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Dr. Michael Geist is a law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law. He has obtained a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School... More