Online Regulation

Fists of Ham: Why the Liberals Keep Trying (and Failing) to Control the Internet

Peter Menzies
April 2, 2024
Folk wisdom holds that bad things come in threes. Now we have conclusive proof. The federal Liberals’ trio of ham-fisted bills aimed at bringing the internet to heel – the Online Streaming Act, Online News Act and Online Harms Act – are obvious and spectacular failures that are doing or will do great damage to Canadians. Peter Menzies takes a close look at the flaws of this calamitous trio, paying special attention to the threat posed to free expression in Canada by the recently unveiled Online Harms Act. For an administration that prides itself on its modernity, how has the Justin Trudeau government gone so wrong nearly three decades into the digital era?
Online Regulation

Fists of Ham: Why the Liberals Keep Trying (and Failing) to Control the Internet

Peter Menzies
April 2, 2024
Folk wisdom holds that bad things come in threes. Now we have conclusive proof. The federal Liberals’ trio of ham-fisted bills aimed at bringing the internet to heel – the Online Streaming Act, Online News Act and Online Harms Act – are obvious and spectacular failures that are doing or will do great damage to Canadians. Peter Menzies takes a close look at the flaws of this calamitous trio, paying special attention to the threat posed to free expression in Canada by the recently unveiled Online Harms Act. For an administration that prides itself on its modernity, how has the Justin Trudeau government gone so wrong nearly three decades into the digital era?
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Canada’s long march towards suppressing free expression on the internet is about to run headlong into the federal government’s other great nemesis – the People’s Republic of China. And the battleground – at least on the surface – is dance videos.

Last month the U.S. House of Representatives passed a bill with broad bipartisan support requiring the owner of TikTok – a Chinese company called ByteDance – to sell the enormously popular social media platform or cease operations in America. The Senate is now considering the bill and President Joe Biden has said he will sign it, if and when it shows up on his desk.

Hands off my dance videos: The U.S. House of Representatives recently voted to bar TikTok from the United States unless its Chinese owners sell the popular social media platform. Shown, TikTok supporters rally in Washington, D.C. (Source of photo: AP Photo/J. Scott Applewhite)

If the result is TikTok’s banishment from the U.S., then we can expect major repercussions in Canada as well. Removing American audiences from TikTok will have a devastating impact on the many thousands of Canadian online creators who use its short and snappy video posts as their primary means of communicating with the public. Not only will this crucial marketing avenue instantly disappear, but Prime Minister Justin Trudeau will also face enormous pressure to follow his neighbour’s lead and prohibit TikTok in Canada. And yet doing so entails a clear risk of retaliatory Chinese action.

The TikTok controversy threatens, in other words, to become the latest episode in the long-running Sino-drama miniseries that has gripped our nation – and bedevilled the Prime Minister’s Office – throughout the Trudeau years. Ever since President Xi Jinping refused the then-popstar politician’s awkward efforts to forge a trade deal in 2017, it’s been one humiliating China-related debacle after another: from the “two Michaels” to espionage at Canada’s National Microbiology Lab in Winnipeg to the current Foreign Interference Commission.

There are solid national security reasons for the U.S. Congress to fret about TikTok and its ties to the Chinese Communist Party. Plenty of evidence suggests TikTok exerts a malign influence over political debate in the U.S. and other Western countries. The sheer volume and imbalance of anti-Israel/pro-Palestinian rhetoric on the social media platform, for example, has many observers suggesting its algorithms and moderation techniques are calibrated to deliberately drive new wedges into American politics at China’s behest. A recent essay in the Jewish Review of Books calls TikTok “an instrument of Chinese antagonism towards the United States.” Even Canada requested a security review of TikTok last September.

Controlled by Beijing? Critics charge that the proliferation of anti-Israel/pro-Palestinian rhetoric on TikTok, among other examples, indicates that its algorithms are deliberately tweaked to foment political discord in the U.S. and other Western countries. (Source of screenshots: TikTok)

Yet this is not simply a proxy fight on behalf of American-owned TikTok-competitor Facebook. In fact, Facebook has also been raising political eyebrows for years over how it uses its data and its commercial connections in China. As current Republican presidential candidate Donald Trump recently told CNBC, “There’s a lot of good and there’s a lot of bad with TikTok, but the thing I don’t like is that without TikTok, you’re going to make Facebook bigger, and I consider Facebook to be an enemy of the people.” On Fox News he added, “If you’re going to do it to TikTok, do it to Facebook [as well].”

While TikTok’s direct Chinese connection is concerning and relevant in and of itself, Trump is right to worry about the things that TikTok, Facebook and virtually all other commercial internet businesses have in common, namely the manner in which they collect and traffic in their users’ data – i.e., our data. Without transparent, reliable and ironclad safeguards to protect the personal details that users share inadvertently and habitually throughout their day-to-day interactions with these companies, as well as the manner in which that information is re-used, re-sold or otherwise manipulated, we are all powerless to control our own online destinies. They know what we like, where we go and what we are thinking. No government has a right to all that information; why, then, should the owners of social media platforms have it?

Rather than grapple with these fundamental issues, however, Trudeau and his revolving circus of ministers in the Heritage and Justice portfolios have instead tried to “manage” the internet’s end-user experience. A trifecta of flawed bills has sought to restrict how Canadians can express themselves online – and thus put an end to the internet as an unregulated forum for the free exchange of ideas. And while the TikTok dilemma is not of the Trudeau government’s own making, these three bills certainly are.

Calamity in Three Parts

The first of these three foolish foundation stones was laid with the Online Streaming Act, also known as Bill C-11. It was introduced in November 2020 and passed into law in April 2023. Pascale St-Onge, whose appointment last summer as Heritage Minister was the fifth change in that portfolio’s leadership under Trudeau in less than eight years, hailed the legislation as “the result of years of work and collaboration between our government and the cultural sector.”

Others saw Bill C-11 as a 1980s-style effort to bring the wide-open internet under the control of the notoriously meddlesome and hidebound Canadian Radio-television and Telecommunications Commission (CRTC). In an effort to impose Canadian-content rules on major streaming services such as Netflix or Amazon Prime, the bill sets criteria and extracts funds to “support Canadian artists and creative industries, advance Indigenous storytelling and increase representation of equity-seeking groups.” The Trudeau government, in other words, is using it as yet another way to favour designated groups whose approval it craves and further impose wokism on Canadians.

In doing so, the Online Streaming Act also threatens to bring the entire independent podcasting world to heel. While individual digital creators are not directly regulated by the act, the streaming companies who host them are, and it is entirely reasonable – if not fully expected – that these firms will censor and bully those independent voices into following Ottawa’s direction. It is exactly the sort of top-down, elitist-driven scheme to which the internet is properly allergic.

The first of three digital calamities: The Online Streaming Act, hailed by Heritage Minister Pascale St-Onge (left), has earned the ire of podcasters such as J.J. McCullough (right), who recently warned a Canadian Radio-television and Telecommunications Commission (CRTC) hearing about the threat the bill poses to young, independent online entrepreneurs like himself. (Sources of photos: (left) The Canadian Press/Adrian Wyld; (right) CPAC)

The response to these likely consequences from online creators and content providers has been deafening. Writing in his ShuSH Substack, Kenneth Whyte, proprietor of book publisher Sutherland House and former editor-in-chief of the National Post, called Bill C-11 something that applies “old-fashioned protectionist policies to the whole damn internet.” Popular YouTuber J.J. McCullough appeared before the CRTC last December explaining how he represented the “forward‑looking modern youthful wing of the Canadian cultural economy” striving to make a living by giving their audience what it wants without the need for 20th-century-style regulatory oversight. He and his colleagues, McCullough explained, are “often very entrepreneurial, very self‑directed people that have started from very little and have become very successful.” They don’t want or need Ottawa’s heavy hand on their shoulder – or in their wallet.

Online Lunacy: Part Deux

The Trudeau brain trust’s next assault on the internet turned out to be a failure of epic proportions – hurting the very industry it was supposed to help. Bill C-18, the Online News Act, was meant to ameliorate the financial problems of the mainstream media by extracting cash from Google and Facebook to hand over to those failing businesses. This was to be accomplished by forcing the two social media giants to pay for the privilege of hosting online links to news stories from the legacy outlets. While Google agreed to pay $100 million into this scheme, Facebook-owner Meta took the opposite approach and stopped posting news links entirely.

Meta’s move immediately severed a key connection between online readers and news publishers and did far more damage in terms of lost marketing power than was gained from Google’s outlay. According to the CBC’s Third Quarter Financial Report, for example, “Digital reach for CBC is trending below target due to Meta’s news withdrawal in Canada.” Traffic at the English language website dropped by 23 percent year-over-year, all of which can be ascribed to the Facebook news link ban. Far from “stealing” the legacy media’s content, as alleged, the social media giants were clearly helping them reach their audiences. Globe and Mail columnist Andrew Coyne called the legislation “a transparent shakedown operation.” The real purpose, Coyne observed, could be summarized by the observation that “the platforms have money, and the media want some.”

St-Onge’s immediate predecessor, Pablo Rodriguez, used to brag that the “world is watching” Canada’s efforts to manage the internet. Unfortunately for everyone involved, he was right. So closely, it turns out, that not only did the Online News Act cost the domestic news industry a great deal of money, it hurt other countries as well. In 2021 the Australian government cajoled Facebook and Google into making payments to news providers in what might be considered a test run of Canada’s Bill C-18. But Meta was so pleased with how its business proceeded after its news link ban in Canada that it subsequently notified publishers in Australia that it plans to end its deal with them as well.

Insisting in a blog post that “global tech companies cannot solve the long-standing issues facing the news industry,” Meta made it clear that its response to Canada’s legislation helped it make its decision to go on the counter-offensive Down Under as well. “People still come to Facebook even without news on the platform,” the company said. “Just as the number of people around the world using our technologies continues to grow, the number of daily and monthly active users on Facebook in Canada has increased since ending news availability.” Ouch.

The world is watching, uh-oh: Following the Online News Act’s requirement that Facebook pay to host news links, the company stopped sharing the links altogether, which dramatically reduced the digital reach of Canadian news organizations such as the CBC (top). Based on the outcome in Canada, Facebook subsequently disabled news links in Australia as well (bottom). 

Act Three: From Farce to Tragedy

Having thus damaged the news industry on two continents, Trudeau’s government decided to again reach beyond its intellectual grasp and turn what could have been a perfectly useful piece of legislation dealing with the most problematic aspects of the internet into a dystopian mess. Say hello to Bill C-63, the Online Harms Act, unveiled in February. Promoted as being necessary to “protect children” from a cesspool of online content, the bill actually comprises two distinct and wholly unrelated halves. One good, one evil.

The first part sets up mechanisms to shield vulnerable children from inappropriate content online, as well as to protect victims of online sex crimes, such as the unauthorized sharing of sexually-intimate videos. Unfortunately, this entirely legitimate goal was then welded onto a despicable attempt at suppressing free speech in Canada.

The “evil-twin” portion of the bill seeks to stamp out “hate” within Canada by creating new speech and thought crimes and by setting up an ominously named Digital Safety Commissioner. Expressions considered hateful by the courts will be made punishable by up to life in prison. What constitutes “hate”? According to the bill, hate speech is defined as “detestation or vilification of an individual or group of individuals.” It is not, however, “disdain or dislike.” Got that?

Protect kids, hurt everyone else: The Online Harms Act combines a legitimate effort to protect children from online victimization with a despicable attempt at suppressing the free speech rights of adults throughout Canada. (Source of photo: Pexels)

The promotion of genocide is dealt with in an equally severe manner, but defined in an equally vague way. (Could legitimate research into Canada’s Indian Residential Schools disputing claims of genocide be considered illegal? Who knows?) Further, the courts can order house arrest for anyone suspected of intending to commit a future hate crime. And the bill revives the thoroughly discredited and properly abandoned concept of Section 13 of the Canadian Human Rights Act by allowing anonymous hate-speech “victims” to bring complaints against anyone who has said something they consider offensive, and in the process enrich themselves with cash awards.

Apparently lulled into a catatonic state by the aspects of the bill that protect children, many Canadian commentators were initially supportive of C-63. Coyne, for example, initially gave it “One Cheer”. But then outside voices began to weigh in. Britain’s The Telegraph, for example, talked of Canada’s “descent into tyranny”. According to columnist David Collins, “For Canadians, Trudeau’s Online Harms Act will [result in] a tightly-monitored police state more suited to North Korea than North America. It will harm more people than it protects.” The Spectator, another British publication, was similarly outraged:

“The stated intent of the Bill is something every decent person supports: protecting children from online victimization. Yet behind this noble aim lurk the thought police.

This is no exaggeration. This legislation authorizes house arrest and electronic tagging for a person considered likely to commit a future crime. It’s right there in the text: if a judge believes there are reasonable grounds to ‘fear’ a future hate crime, the as of yet innocent party can be sentenced to house arrest, complete with electronic tagging, mandatory drug testing and communication bans.”

Prominent U.S. free speech advocate Jonathan Turley, a professor at George Washington University Law School and frequent expert witness on First Amendment issues to the U.S. Congress, told Fox News the bill represents a “doubling down on Canada’s commitment to reducing free speech.”

To see ourselves as others see us: While it took Canadian columnists such as The Globe and Mail’s Andrew Coyne (left) and The Line’s Jen Gerson (right) several weeks to appreciate the true dangers posed by the Online Harms Act, British writers were quicker off the mark, including David Collins from The Telegraph.

Canadian columnists eventually began to see the light. The Globe’s Coyne had a Damascene conversion and recanted his initial support for the bill, later calling it “breathtaking in its recklessness.” The Line’s Jen Gerson conceded that “about 75 per cent of what’s in the bill is either good or benign.” As for the rest, however, she came around to the conclusion that it was deeply problematic:

“The bill’s attempts to increase the penalties for ‘advocating genocide’ to life imprisonment; the use of peace bonds for pre-crime hate speech; and the re-introduction of Section 13, to be administered by the already questionable Human Rights Tribunal apparatus. All of these present such punitive measures that they would have a chilling effect on speech that is fundamentally incompatible with the freedoms we expect in a liberal democracy.

There’s no nice way to put this. These measures reveal deeply authoritarian instincts toward speech and regulation, all the more pernicious as they’re being introduced by people who are absolutely convinced of their own righteous good intentions.”

Federal Conservative leader Pierre Poilievre says his party will vote against the Online Harms Act because of the grave threat it poses to free speech. (Source of photo: Mizrachi Canada/Facebook)

As for the reaction among elected politicians, the federal NDP are big fans of the bill and the Bloc Québécois want to make it even tougher. Only the Conservatives seem to recognize its slippery, dual-headed nature. Leader Pierre Poilievre agrees with cracking down on sexual victimization online. “We believe that these serious acts should be criminalized, investigated by police, tried in court and punished with jail,” he said. But, he added, his party intends to vote against the legislation due to its obvious attack on free expression. “We do not believe that the government should be banning opinions that contradict the prime minister’s radical ideology,” Poilievre stated.

The bill is indeed a direct threat to Canadians’ free speech rights and the entire concept of open political discourse. And right now, it has all the votes its needs to become law.

Three Wise Men on Three Bad Bills

Amid all the embarrassing missteps and ham-handedness of the Justin Trudeau government’s entire internet policy package, a crucial question arises. Why? What makes a government turn a streaming act designed to force Netflix to support Canadian film and TV production into one with implicit authority over all podcasts? How does a bill designed to make web giants support news organizations wind up wreaking financial harm on what remains of the independent press? And who takes the concept of protecting vulnerable children and twists it into an internationally-decried assault on free speech? Meanwhile, why is no one doing anything to address the real online issues of data collection, trafficking and storage? The Liberals are essentially bringing a hammer down on how Canadians use the internet at home while ignoring the much bigger problems backstage.

In a search for answers, I sought out three experts for their opinions on how the Liberals lost their minds over the internet. Timothy Denton, a consultant and former CRTC Commissioner, says leaders in Canada and elsewhere have become nervous about the manner in which the internet has freed citizens from their control. “Governments everywhere in the western world are engaged in programs that are malign by intention and can only be made to work…by the repression of people’s capacity to see, perceive and organize,” he explained via email. The three bills, in other words, are part of a concerted effort to curtail independent thought. “I think this is becoming increasingly clear to many, many people, and from their point of view, this ability must be hampered and stopped.”

Three wise men comment on three calamities: Former CRTC commissioner Timothy Denton (left), regulatory consultant Len St-Aubin (middle) and lawyer Philip Palmer (right) provide expert opinion on why the federal Liberals’ internet policy has proven so disastrous; according to Palmer, it comes down to the twin sins of pride and sloth. (Sources of photos: (left) tmdenton; (middle) LinkedIn; (right) ParlVu)

Len St-Aubin, a long-time regulatory consultant, sees part of the problem arising from a weakening of the policy-making process within the public service that began during Stephen Harper’s Conservative government. “The problem is the total politicization of policy making grounded in short-term thinking, and the corresponding demise of evidence-based policy making,” St-Aubin says. “The Libs either inherited a public service with greatly diminished policy making capacity, or chose to adopt the same echo chamber policy-making model.” (Then again, the Harper government did repeal Section 13 of the Human Rights Act, which was being misused to suppress unpopular opinions.)

Putting political considerations ahead of serving the public is a recurring pattern for the Trudeau government, argues St-Aubin. “Bill C-11 was driven by, and ultimately sought to benefit, private sector broadcasters and independent producers who depend on regulations” for their livelihood, he says. “That was almost certainly driven by political motivation, rather than any policy analysis within the public service. The same is definitely the case with the Online News Act. And both are proving to be abject failures.”

As president of the Internet Society Canada Chapter, Philip Palmer has appeared before the House of Commons Heritage Committee and its Senate counterpart to speak to the government’s internet legislation. He is also an Ottawa-based internet and telecommunications lawyer and former Senior General Counsel with the Department of Justice. To understand the Trudeau government’s approach, Palmer says, it’s best to look to mindset rather than motivation.

“In my view, the problem with the Liberal government is the sin of pride,” says Palmer. “They see themselves as virtuous and, in consequence of this self-understanding, the initiatives they undertake reflect virtue as they would have it. Of course, if they are virtuous, and their political actions reflect virtue, then opposing those measures is anti-virtuous – possibly even evil. The Liberals compound the sin of pride with that of sloth: they seem unable or unwilling to examine their actions against real-world reality. They do not take the trouble to see potential virtue in their opponents’ point of view – as of course their opponents, by definition, lack their virtue.”

Palmer points to how all of the Trudeau government’s legislation tends to go beyond the necessary initial objectives and grant sweeping powers to various non-government authorities such as the CRTC, Human Rights Tribunal, Digital Safety Commission or, through Criminal Code amendments, the police and Crown prosecutors. It’s a pattern, he says, that comes down to “simple lack of imagination.” As Palmer puts it, “They can neither imagine that they are capable of doing harm, nor that in the course of experienced life others will come to hold the levers of power and be able to use those unrestrained powers for purposes that are entirely foreseeable but beyond their ken.”

“Sunny ways” pummelled by storm clouds: As Ottawa’s internet policy failures mount, Millennials and Gen Zs appear to be turning their backs on the federal Liberal government; recent polls suggest these groups are now more likely to favour Poilievre’s Conservatives. (Source of graph: abacus data)

If Palmer is right, and sinful pride is at the heart of Trudeau’s legislative assaults on Canadians’ liberty, then perhaps the unfolding crisis over TikTok and the three online-related laws are omens of a fall yet to come. Considering TikTok, note that the platform is wildly popular among those who graduated from high school after the turn of the century. The Online Streaming Act’s shortcomings primarily befall this demographic cohort as well. Comprising Millennials and Gen Z, they now outnumber their parents, the once-dominant Baby Boomers. They are also the first generation to have grown up with the internet. Plus, seventy percent of TikTok’s users are under 40 and the majority are female. That’s not only the dream demographic for advertisers, it’s also the segment of the population that, in the 2015 federal election, most enthusiastically threw its support behind Trudeau and his “sunny ways”.

Now, having watched their dreams of home ownership crumble on Trudeau’s watch and witnessed his bungled efforts at legislating the internet, this group also seems to be suffering the most from buyer’s remorse. If current polls are to believed, it appears Millennials have shifted their allegiance in spectacular fashion and are now almost twice as likely to support Poilievre’s Conservatives as they are Trudeau’s Liberals. Those sunny ways are now overcast and sullen. The looming clash over TikTok, as well as the ongoing fallout from the trio of online-related laws, are further clouds on a darkening political horizon.

Peter Menzies is a past vice-chair of the CRTC and a Senior Fellow at the Macdonald-Laurier Institute.

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