A one-time chief judge and president of the Michener Foundation, Kierans has written a needed institutional history of the investigative journalism award that was created under the flag of Governor-General Roland Michener in 1969 to pace the famous American Pulitzer Prize.
Public service journalism, writes Kierans, ferrets out the misdeeds of the powerful, “stands up to bullies, uncovers secrecy, fraud and wrongdoings, and gives voice to marginalized communities.”
This kind of journalism, alas, is blindingly expensive. Consider this graphic I put together a few years ago that puts a price tag on it:
Watchdog journalism risks being romanticized, particularly if indulging in cringeworthy homilies like “speaking truth to power.” In the book’s Foreword, former Governor General David Johnston quotes literary great George Orwell’s maxim “journalism is printing something that someone does not want printed. Everything else is public relations.”
That sentiment is mostly bullshit, but as Kierans works her way through fifty years of winning stories and exposés, you are reminded of just how explosive Canadian public service journalism has been, each and every year throughout our adult lives.
Especially important to the folks running the Micheners, recognition is awarded to stories that have had produced measurable change: a public inquiry launched, legislative action taken, restitution made, wrongdoers fired or thrown out of office.
Have a look at this list to be reminded of how many Award winners were at the centre of a major political controversy or prodded action on a burning policy issue that years later we simply take for granted as a citizen’s due.
This walk down investigative journalism’s memory lane is the best part of the book (Kierans weaves the chronology of the annual awards with the narrative of the Michener Foundation’s financial and governance issues). If you can’t respond with respect and gratitude to journalists after reading these stories, buddy you are a dead loss to humanity.
Contemplating the idea of watchdog journalism is a good opportunity to observe the political animus towards the media that is cynically stoked by bad actors on a daily basis. Most of it comes from the right, but the populist left puts a lot of effort into it too.
The accusation made over and over again is that journalists and their newsrooms are political, in fact partisan on a left-right basis. There could be something to that on a “curatorial” level: what kind of stories do and don’t get commissioned or published. But on a story-by-story and journalist-by-journalist basis, the huff about left-right bias is nonsense and usually spewed by people who haven’t met too many journalists.
If journalists subscribe to any “ism” it’s to the watchdog creed: that the powerful are usually up to something nasty, are covering it up, and need to be exposed so we can fix it.
And on that basis, Kierans’ book is a salutary and enjoyable read.
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The CRTC decided on Friday to deflate rumours that it is set to announce its ruling on Phase 1 of implementing the Online Streaming Act Bill C-11 and set out the agenda for Phase 2. Yet another week flips by on the regulatory calendar without the Commission determining the obligations of foreign streamers to fund and distribute Canadian content.
No matter, that gives everyone a chance to catch up with their reading.
Allow me to recommend Canada vs California, my primer on the culture war over regulating Internet broadcasting. It was officially released on May 1st and is now available in Canadian bookstores and online. (Indigo has it listed as available on Thursday May 9th).
A history of the Online Streaming Act is an opportunity to tell some culture war stories and, testing your patience, take some deep dives into the regulatory minutiae behind the generous amount of rhetoric expended on the bill.
The Online Streaming Act had a long run up, beginning with amendments to the Broadcasting Act in 1991 that anticipated the Internet, followed by the CRTC decision in 1999 not to regulate Internet broadcasting for the indefinite future.
Here’s an excerpt from the book:
The Internet was still young in 1991 but the Mulroney Conservatives’ new definition of broadcasting was waiting for it to grow up. It would not be long before audiovisual and audio programs would be broadcast over the Internet’s “means of telecommunications,” as the Broadcasting Act now read.
The Liberal government of Jean Chrétien, elected in 1993, kept its eye on the Internet in a low-key manner as befitted a prime minister who was fond of saying that half of life’s problems solved themselves. The Liberals did what governments often do with important policy that can be left on a political backburner: commission a study.
In 1994 the Liberal cabinet asked the Canadian Radio-Television and Telecommunications Commission to report on content and competition policies for new communications technologies comprising “the information highway.” The report projected that broadcasting of programs would eventually take place over the Internet.
Industry and public policy groups also recognized the Internet as a future broadcasting platform and urged the CRTC to take the first regulatory steps…
On July 31, 1998, the CRTC issued a public notice convening a discussion of what, if anything, it should do about new media and got lots of advice from industry and the public. On May 17, 1999, the Commission issued its ruling.
The Commission immediately narrowed the scope of what Internet activity fell under the definition of “broadcasting (audio and audiovisual programs) by means of telecommunications.” First, Internet content predominantly in written form was out of bounds. Next, peer-to-peer and point-to-point communications were out. That excluded video games, e-mail, online paging, faxing, e-commerce and Internet-protocol telephony.
Finally the Commission punch-line: online programs for public distribution “do fall under the definition of broadcasting [but] the Commission has concluded that regulation is not necessary to achieve the objectives of the Broadcasting Act.” Accordingly, the Commission served notice that it would issue an exemption order under its frequently used power to suspend regulation of any broadcasting service that did “not contribute in a material way” to public policy…
Next, the Commission reaffirmed the toolkit policies behind fostering Canadian programming in mitigation of the market power of US media, in exactly the terms described in Chapter 1 of this book:
Under its mandate to implement the policy objectives set out in the Broadcasting Act, the Commission has imposed Canadian exhibition and expenditure requirements on traditional broadcasters, as well as requirements for distributionundertakings to contribute financially to the production of Canadian programming. This was done in recognition of the fundamental importance of broadcasting to Canadian sovereignty and cultural identity and the realization that market forces alone would not provide a significant amount of Canadian broadcasting content. Canada’s small domestic market makes it difficult to finance the creation of competitive Canadian programs. Whereas U.S. producers can recover the majority of their production costs through domestic licence fees, the licence fees earned in Canada by most Canadian program producers represent only a fraction of their total production costs.
The economies of scale that exist in the United States make American programming less expensive for Canadian broadcasters to acquire than Canadian programming. At the same time, American programming has tended to attract larger Canadian audiences than Canadian programming because of its higher production values and well-established star system. This has particularly been the case for English-language television. American broadcasters cannot provide their programming directly to Canadian viewers except in situations where off-air signals are directly receivable. This has resulted in a system whereby profitable non-Canadian programming is purchasedby Canadian broadcasters to subsidize the cost of Canadian programming . . .
Be that as it may, in 1999 the Internet was still too young to regulate: the Commission projected at least seven to ten years before audiovisual and music broadcasting could become a significant presence on the Internet. For the time being, the Commission considered what little video and audio streaming there was to be complementary to conventional broadcasting and noted that Canadian media companies regarded the Internet as mostly a marketing platform for their television programming. Clearly, any regulatory squeeze on Internet broadcasting would not be worth the juice.
The Commission then made a couple of observations that twenty-five years later can only be described as prescient. The Commission said it could not project what broadband video broadcasting might look like one day but speculated the broadcasters of the future might be the Hollywood studios Disney, 20th Century Fox (now Disney) or Metro-Goldwyn-Mayer (now Amazon) streaming directly to Canadian subscribers instead of retailing their shows through Canadian broadcasters. Moreover, the Commission perfectly anticipated YouTube in projecting an Internet platform distributing a fragmented media universe of countless channels:
Many Canadians will increasingly have access to a diversity of content and services that might not have been available to them through conventional broadcasting. This may benefit Canadians who belong to communities of interest that have not been well represented by mainstream media. This also raises the question of whether the Internet will ever have the ability to create mass audiences in a manner similar to that of conventional television, which is driven by mass-oriented entertainment programming,or whether the sheer number of “channels” offered by the Internet will always result in fragmentation. While some [submissions to the Commission] spoke of mass market Internet services, others were of the view that the successful content creators on the Internet will be the ones who target narrower communities of interest such as sports fans, art and music lovers, youth culture, and so on.
But those new distribution platforms were years in the future. For the Commission, the Internet was not ready for regulation and the regulator was not ready for the Internet. In December 1999 the Commission issued its formal New Media Exemption Order.
Over the next twenty years the Commission declined to revoke the New Media Exemption Order. The last refusal would be issued by CRTC Chair Jean-Pierre Blais on August 6, 2015, the day after Stephen Harper posted his “no Netflix tax” video on social media. The Commission’s reasoning in every renewal of the exemption was that unregulated broadcasting over the Internet posed no threat and “would not contribute materially” to the Broadcasting Act’s Canadian programming objectives. In other words, the regulatory squeeze was still not worth the juice.
Stephen Harper political ad, August 2015
One CRTC Commissioner who could see where it was all going wanted to put a stake through the heart of regulating broadcasting over the Internet. Concurring in the 2009 renewal of the exemption, Timothy Denton foresaw the day the tide of public opinion might change and a future Commission would be under pressure to revoke the Internet exemption:
Unless the decision-making framework is changed, there is a good chance that a future Commission will feel obliged to extend broadcasting licensing over Canadian portions of the Internet in an effort to preserve an obsolete system.
Denton said the “decision-making framework” — the Broadcasting Act — was itself “an artifact of history” and must be amended to permanently prevent the regulation of the Internet.
Stephen Harper had another six years in power after 2009, four in majority, to take Commissioner Denton up on his challenge to put the Internet forever out of the reach of the CRTC. But despite the no Netflix tax video, the Conservative election platforms in 2011 and 2015 were silent on broadcasting, as were their previous platforms in 2004, 2006 and 2008.
Then, on October 19, 2015, Harper’s Conservatives lost the general election and were replaced by a Liberal majority government headed by Justin Trudeau. The Liberal election platform promised more money for the CBC and the reversal of Harper budget cuts to Telefilm, the National Film Board and the Council of the Arts. Of course, Trudeau had already promised to keep his hands off of Netflix. His signature election promise was to legalize cannabis.
The incoming Trudeau Liberals were indeed modern: as hip as weed and the Internet. So was the new heritage minister, Mélanie Joly, a rookie member of Parliament and rising star from the Montréal riding of Ahuntsic-Cartierville. When her mandate letter from the prime minister’s office arrived three weeks after election day, it was an unremarkable list of priorities and included nothing about the Internet or broadcasting other than the promised $150 million for the CBC.
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“People believed his lies. Everything he said was bullshit, from top to bottom.” Opposition Leader Pierre Poilievre on Prime Minister Justin Trudeau
April 27, 2024
There was a media bunfight last week asNational Post Managing Editor Carson Jerema lambasted Parliamentary reporters Althia Raj of the Toronto Star and Catherine Tunney of the CBC for their coverage of Pierre Poilievre’s roadside visit to a New Brunswick carbon tax revolt camp where some participants had ties to the far-right insurrectionist outfit, Diagolon.
Weighing in, Poilievre tormentor-in-chief Rachel Gilmore posted a video report tracing the connections between some of the tax protesters and Diagolon.
The Diagolons in question are one of the few right-wing groups that Poilievre has publicly repudiated (for threatening to sexually assault his wife). He notably has not disavowed an endorsement from US conspiracist Alex Jones and was an enthusiastic supporter of the Ottawa convoy protesters in 2022.
All of that is grist for the mill in the CBC news story (Poilievre enthusiastically identifying with Convoy-style voices) and the Star’s opinion piece (Poilievre’s associations with those voices alienates a lot of Canadian voters).
The Post’s Jerema thinks it’s all left-wing journalism and especially believes the CBC manufactured a smear story. Coming from the Post, which has gushed a daily flow of anti-Trudeau political columns since at least 2015, it’s a bit rich.
But you be the judge, the columns and story are linked above.
An observation from MediaPolicy.ca: Jerema criticizes the wording of the CBC story lede —-that Poilievre “is facing questions after stopping to cheer on an anti-carbon tax convoy camp”—- as disingenuous since most Canadians were blissfully unaware of the isolated tax protest and didn’t have any questions about Poilievre’s unscheduled pit stop until the CBC reporter said they might.
The very experienced Jerema no doubt recognized this journalistic convention as the near-cousin of “some say” that relies on the assumption that some members of an informed public likely have an opinion on a controversial news item. It’s not great journalism, but hardly a new or partisan phenomenon.
In fact, these kinds of gotcha stories are legion in “watchdog” reporting, otherwise known as investigative journalism. The journalistic assumption is that political guilt by association, or implied wrongdoing (with the news subject being allowed to offer rebuttal comments), is fair ball. Let the reader judge.
Poilievre’s past comments and uninhibited comfort with far-right groups, however you perceive those, are a legitimate political story that Canadians appear to be interested in. Were the Prime Minister to repeat one of his known foibles (pick one) he’d get the same treatment.
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Judging from the public debate and media coverage of cultural policy in Québec, you can expect that every federal and provincial political party is going to be expected to do something about the outsized consumption of English-language streaming and social media content by francophone youth.
The anxiety level is palpable. La Presse’s well known arts columnist Mario Gerard reported from a recent conference at the University of Montréal with a dire description of young people’s waning consumption of French language culture in Québec and francophone nations across the Atlantic:
So, when I hear about measures and laws, I say yes. We must act on all fronts. Provincial, national and international. But above all, let’s do it in a concerted way. These laws will not settle everything, for sure. But we must give ourselves the means to fight against this beast that is suffocating us.
Gerard reported that the federal Heritage Minister Pascale St.-Onge and the Québec Culture Minister Mathieu Lacombe are speaking in categorical terms about the need for regulatory action. It’s doubtful Québec voters are going to be satisfied with words.
A good guess is that St.-Onge and Lacombe are already having private conversations about action, money, and that oh-so-tricky topic of federal-provincial jurisdiction.
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Two weeks ago MediaPolicy posted about the demoralizing performance of Heritage Committee MPs in passing up an opportunity to engage Bell CEO Mirko Bibic in a policy discussion, opting instead for a belligerent hazing.
Bibic’s interrogation by MPs was a command appearance following Bell’s decision to shore up its share price by protecting dividends at the cost of mass layoffs.
Here’s the follow up no-nonsense commentary from telco industry analyst Mark Goldberg and also former Bloomberg reporter Theo Argitis publishing on the conservative website The Hub.
By the end of his column, Argitis manages to boil it down to this pithy advice for MPs:
In an ideal world, we get cheap telecom services, minimal regulation of the internet, and robust news ecosystems financed by the telcos. In the real world, at least one of those objectives may need to be abandoned. Policymakers get to decide which one.
To round out the story, here’s a good investment story from the Globe’s Tim Kiladze on the BCE balance sheet, share price and dividend payout going forward. Some useful context.
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This week’s federal budget consigned major media and cultural programs to the treadmill: either formalizing previous spending commitments or announcing incremental adjustments to keep up with inflation.
$20 million to double the funding for the Local Journalism Initiative that pays for 400 news interns across Canada.
As promised in 2021, $13 million in permanent annual funding for the Indigenous Screen Office that channels production financing to TV and film projects.
As promised, maintaining the $50 million in annual funding of Telefilm (for the next two years).
Maintaining funding levels for the Canada Music Fund at $50 million annually, as promised in 2021. (Correction: Heritage officials clarify that the existing budget line of $25.3 million annually has been increased by $16 million for the next two years. Therefore the cumulative $41.3 million falls short of the Liberal campaign promise in 2021).
Doubling the spending envelope for the federal journalism salary subsidy from 25% to 35% of newsroom payroll (the program does not apply to radio or television companies).
There was a new budget line of $15 million over two years for public service channels Accessible-TV, CPAC, Aboriginal Peoples Television News, the French language news consortium TV5, and Radio Canada ICI-tv. CPAC gets the lion’s share to pay for capital expenditures.
The public service funding is a follow-through on a promise made during the Parliamentary debate over Bill C-11 by former Heritage Minister Pablo Rodriguez.
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I’m told that the CRTC is about to roll out the timetable for the remaining regulatory issues flowing from the Online Streaming Act Bill C-11.
If the Commission is moving on to this next phase you would also expect the release of the Commission’s ruling on streamer contributions to video and music media funds, reviewed by the Commission back in November and December. The regulatory exemption of YouTuber videos will be confirmed as well.
Here are the major outstanding issues still to be contested by Canadian broadcasters and foreign video and music streamers:
On the video side, the streamers’ spending obligations to make, license and release Canadian programs;
Related to that, revisiting the definition of a “Canadian” program;
Also related to that, the streamers’ obligations to make their Canadian programs “prominent” or “discoverable” to viewers.
On the music side, the main debate will be over discoverability of Canadian songs, a thorny issue as the music streamers are opposed to making any special efforts;
Related to Canadian music, the “MAPL” definition of a Canadian song may find its way onto the agenda.
At some point the Commission will have to deal with the Canadian broadcasters queued requests for regulatory relief on Canadian program spending, as well as a laundry list of radio issues put on hold by the Commission back in December 2022.
Also, the Commission continues to leave Global News and the small independent TV stations hanging, an outcome its March 2022 approval of the Rogers-Shaw merger. That ruling left 12 Global News stations cut loose from Shaw vying against the 18 existing independent stations in non-metropolitan markets for limited subsidies from the Commission’s Independent Local News Fund. Two years later, perhaps the Commission will get around to this.
A sign that media industry players are anticipating the next phase of regulatory hearings was the release of a public statement by Spotify and a discoverability study by Music Canada (the voice of the international music “majors” Universal, Sony and Warner).
Spotify wants two things. It wants the Commission to acknowledge the streaking success of Canadian musicians on its global platform, implying that no special measures are required to mimic radio regulations that favour airtime for Canadian songs. And it wants to water down the MAPL definition of Canadian song — by diminishing the contributions of Canadian songwriters in favour of Canadian singers and bands—- so that the international hits from Tate McRae, Drake, Justin Bieber, The Weeknd, Ikkyet al eat up any Canadian prominence obligations that might get set for streaming services.
Music Canada released the report it commissioned from Will Page, Spotify’s former Chief Economist. Not surprisingly, Page’s views align with Spotify, particularly on the streaming platforms having opened the door for Canadian musicians to reach a global audience, surpassing any success they could achieve in the Canadian market, even with regulatory assistance. The argument is that radio regulation did its job in establishing a strong domestic music industry and now it’s time to move on.
That leads Page to make the contentious claim that Canadian musicians get paid better under the global streaming model than they do from a radio-driven Canadian market. While musician earnings are not a regulatory issue for the CRTC to rule upon, they are highly relevant to regulatory efforts such as a Commission-imposed streamer contribution to Canadian music development funds. As well, the distribution of those streamer earnings as between new artists, mid-success bands, and global superstars is relevant to a ruling on prominence regulations.
As far as imitating radio regulations designed to make Canadian songs prominent to domestic audiences, the Page report reiterates the streamers’ plea to leave their song curation alone (even for francophone music, perhaps themost important issue in music regulation and glossed over in his Report).
The report offers a helpful chart of sub-platforms for each major streamer based on song “pushing” by curating streamers and song “pulling” by listeners.
The streamer-controlled “push” curation (human-curated, hybrid human/algorithmic, and radio-imitating “station-play”) are more likely candidates for regulatory expectations of promoting Canadian songs than are the algorithm-assisted creation of playlists and song picking by listeners.
As this chart illustrates, the major streaming platforms don’t always put equal emphasis upon the available song picking options:
Song-picking is certain to be an attention-grabber once the Commission gets down to its regulatory business later this year. I have “freedom of expression” on every square of my CRTC Bingo card.
And the MAPL song definition will remind Boomers and GenXrs of the 1991 dust-up over “who is a Canadian musician?” That controversy broke out when Vancouver-rocker Bryan Adams and his manager staged a public temper tantrum over his hit song “(Everything I do) I do it for you” being left out of the CanCon airtime quota because it was co-written with non-Canadians. The multiple-time Juno and Grammy winner is 48th on the all-time Billboard Hot100.
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Here are two things to read this weekend.
The first is a slam-the-door piece from National Public Radio journalist Uri Berliner arguing that the US public broadcaster has become narrowly partisan and ideological. After publishing it, he got fired. I know your mind has already skipped to the CBC: just knock it off.
The other piece is more light-hearted. I’m in a Ken Whyte Substack groove these days and his latest post is about why guys read less than gals and maybe we (the guys, that is) are too interested in stuff we can use (instead of expanding our horizons). Venus and Mars, it seems.
Then Whyte offers some fun details on what famous guys are reading these days.
So that’s the MediaPolicy recommended read for this weekend: from a guy (me), telling you what another guy says some guys are reading.
Stuff you can use.
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Politics makes a fool of public policy on any given day.
To prove this theory, you can tune into ParlVu and watch MPs delight in berating Bell CEO Mirko Bibic for two hours, cutting off his answers, and then clipping their performances for their social media accounts here, here and here.
I digress.
Opinion polls also make a fool of public policy, quite often. The latest is a Nanos poll commissioned by the Globe & Mail to take the public’s temperature on the Liberal government’s suite of Internet legislation.
The legislation in question was Bill C-11 (the Netflix Bill), Bill C-18 (the FaceGoogle Bill) and the freshly tabled Bill C-63 (online harms and hate speech).
The results were decidedly in favour of Internet regulation: 56% in strong or moderate support with 37% opposed (and 7% undecided).
Here’s the question:
The federal government has proposed a package of laws and policies that would give federal officials new powers to regulate the internet. These include an Online News Act, an Online Streaming Act and proposals to curb online harms such as hate speech. Based on what you have heard, do you support, somewhat support, somewhat oppose or oppose greater regulation of the internet by the federal government?
And here’s what is remarkable about the survey: the results haven’t budged an inch since a poll with the very same question was taken in May 2022.
If you check your calendar, May 2022 was the month in which the controversy over regulating YouTube videos under Bill C-11 was cresting. It was before Bill C-18 was tabled and attacked by critics as a public policy face-plant. The public consultation over the online harms bill generated heat over the government’s initial support for removal of hate posts.
Two years later, there could be many reasons for the public’s constancy despite heated public policy debate over Internet legislation.
It’s a very small portion of the public that educate themselves about the fine points of the bills. Instead many are going with a gut feeling like “censorship is bad,” “Bell is bad” or “Big Tech is bad.” I’m not diminishing the lived experience that leads to such polarization.
On the other hand the public does respond to criticism of the downside risks of government regulation if enough attention is drawn to them. At the same time that public support for regulating the Internet in principle held firm, polls also revealed that critics hit a nerve about regulating YouTubers or triggering Meta’s decision to block Canadian news.
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So long as it’s still early days in the commercial development of AI large language models we’ll keep getting wild guesses over its trajectory.
The Big Tech companies now have to make a key decision about acquiring more data. It appears that the capacity of AI-LLM to perform miracles may depend on scraping, stealing or buying a lot more copyrighted content.
The question is what decisions about data acquisition are made at this fork in the road. By way of example, it’s been reported that Meta considered buying a major book publisher so that it could feed the content (often licensed from authors for all platforms and uses) to its LLM Venus Fly-Trap.
By way of another example, it’s been reported that Google is thinking of changing its corporate interpretations of copyright and fair use so that they can feed the audio tracks from YouTuber videos to its LLM.
The financial sustainability of news journalism doesn’t stop being in crisis in between rounds of layoffs.
A valuable part of the public policy discussion is sustainability’s companion crisis: falling public trust in news journalism (and so many other public institutions). What, if anything, can journalists and friends of journalism do about it?
Ivor Shapiro, the retired chair of Toronto Metropolitan University School of Journalism, has something to say about how to rehabilitate public trust in journalism:
Journalists in [many other] countries think it’s simply reasonable in democracies to demonstrate their accountability for standards of factual reporting, and to provide plausible evidence of journalists’ autonomy from the interests of their employers and others.
Yet, these reasonable ideas are practically taboo in historically anglo-Saxon news cultures, for reasons that have more to do with tradition and habit than with common sense or legal rights. Journalists in my generation, especially, have clung with striking self-confidence to inherited habits of news judgment and have largely resisted organizing themselves collectively beyond individual workplaces.
We have refused, in short, to be a profession.
And professionals heed to a code. Shapiro proposes a place to start, here.
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The hate speech provisions of the federal Online Harms bill C-63 trigger the most common policy argument against content regulation, on the Internet or anywhere. It’s the “slippery slope” metaphor depicting the idea that any regulation of free expression teeters at the top of a steep precipice greased to deliver us to a waiting police state. Or a waiting thought-police state.
What’s more, if the worst fears of hate speech laws creating a freedom-killing regime of national censorship in Canada come to pass, the State will have become so powerful that it will be impossible to roll it back. The judgment of “I told you so” will come too late.
To accept this worst-case scenario, one has to evaluate the plausibility of Canadian democracy circa 2024 making the long political journey to a police state, or something too close to a police state, and to contemplate what role hate speech regulation would play in making that happen. One has to evaluate how steep and slick the C-63 slippery slope is.
That’s the task of Parliamentarians evaluating C-63. One of the key provisions in the bill is the definition of “hate speech.” It’s effectively transcribed from Supreme Court jurisprudence into clear statute law that can be enforced by police, Attorneys-General, courts and human rights tribunals. The gist of the definition is to draw a line between illegal vilification and degradation of target groups and milder bigotry (explicit or imputed):
Criminal Code amendment;
hatred means the emotion that involves detestation or vilification and that is stronger than disdain or dislike. For greater certainty, the communication of a statement does not incite or promote hatred, for the purposes of this section, solely because it discredits, humiliates, hurts or offends.
Human Rights Act amendment:
hate speech means the content of a communication that expresses detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination. For greater certainty, the content of a communication does not express detestation or vilification solely because it expresses disdain or dislike or it discredits, humiliates, hurts or offends
Last week MediaPolicy posted a summary of an expert panel parsing the hate speech provisions. Law professor Sunil Gurmukh argues the C-63 hate speech provisions are not going to enable a wide-open persecution of haters, both real and imagined. He points to the Supreme Court’s endorsement of the “hallmarks of hate,” mapping out the line between the vilification of targeted Canadians and, on the side of the line, non-vilifying bigotry.
A key federal human rights precedent that illustrates the hallmarks is the 2006 federal Tribunal finding against Edmonton’s Peter Kouba who posted repeatedly for three years to the Canadian page of the Nazi white power website, Stormfront. Kouba’s posts were chock full of explicitly racist vocabulary and an ongoing series of “true stories” that put forward the case for white power and persecution (including expulsion, violence and execution) of Jewish, Indigenous, Black, LBGTQ and Muslim Canadians.
The Tribunal listed the hallmarks of vilifying hate speech, reduced here to point-form:
The communication uses not only racial epithets but dehumanizing vocabulary by associating members of the targeted group with animals, vermin, excrement, i.e. sub-human.
The communication trivializes or celebrates past tragedy suffered by the targeted groups (e.g. the Holocaust, but could be other events).
The use of “true stories” that are either not true or are presented as the targeted group’s characteristics, using racist vocabulary.
Members of targeted groups are described as predators of the old, vulnerable, women, young etc.
Members of targeted groups are the cause of society’s problems, generally.
Members of targeted groups are dangerous or violent by nature.
Members of targeted groups are devoid of typical human qualities and are innately evil, e.g. “… it’s in their DNA to be bad.”
The “take action” is violent action against members of targeted groups, to banish, segregate or kill them.
The hate is indelible and historic. The hallmarks include vilifications assigned to each group: Jews are described as a powerful menace at every level of society and contriving a lie about the Holocaust in order to extract financial reparations; LGBTQ Canadians are falsely accused of seeking to legalize pedophilia; Indigenous peoples are depicted as sub-human and fabricating a narrative of colonial injury in order to collect federal funds, etc.
I repeat these odious lies only to remind myself and everyone of how bad it can be.
The messages conveyed the idea that Black and Aboriginal people were so loathsome that white Canadians could not and should not associate with them. Some of the messages associated members of the targeted groups with waste, sub-human life forms and depravity. By denying the humanity of the targeted group members, the messages created the conditions for contempt to flourish.
Moreover, the level of vitriol, vulgarity and incendiary language contributed to the Tribunal’s finding that the messages in the case were likely to expose members of the targeted groups to hatred or contempt. The tone created by such language and messages was one of profound disdain and disregard for the worth of the members of the targeted groups. The trivialization and celebration in the postings of past tragedy that afflicted the targeted groups created a climate of derision and contempt that made it likely that members of the targeted groups would be exposed to these emotions. Some of the posted messages invited readers to communicate their negative experiences with Aboriginal people. The goal was to persuade readers to take action. Although the author did not specify what was meant by taking action, the posting suggested that it might not be peaceful. The Tribunal found that the impugned messages regarding Aboriginal Canadians and Jewish people attempted to generate feelings of outrage at the idea of being robbed and duped by a sinister group of people.
The outcome of the Kouba case may be instructive: the Tribunal issued a cease-and-desist order against his repeated hate speech that had rung the bell on virtually every “hallmark of hate” listed above. Also it fined him $7500 because of the relentless posting over three years, as opposed to a one-of.
The hallmarks of hate do raise a difficult question for the rest of us: what are we prepared to do for Canadians who, despite the free-marketplace-of-ideas, continue to be publicly vilified and threatened by haters?
The rebuttal to that question so far has been that expanding hate speech prohibitions against an army of bigots and haters posting to social media will be futile and beyond the means of the legal system.
More on that in the weeks ahead. At the moment, the House of Commons Justice committee has yet to take up the bill.
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When Pierre Poilievre was still thinking about the Conservative leadership, he put in a guest shift at the Commons Heritage Committee as part of the CPC’s filibuster of Bill C-10, the first iteration of the Liberals’ “Netflix bill.”
Poilievre claimed the bill was an elaborate Grit scheme to turn private Canadian broadcasting into government propaganda:
Before us is a bill that would allow government bureaucrats torig technological algorithms in order to favour certain kinds ofpro-government content online while discouraging content thatgovernment does not want us to see, in some cases taking thatcontent off the Internet altogether.
He promised to “Kill Bill C-10.”
Almost two years later, Senator Paula Simons appeared on Michael Geist’s podcast and, after publicly championing the efforts of Canadian YouTubers to escape the gravitational force of regulation, she denounced the disinformation campaign against the bill, particularly the false accusations of “censorship.”
Soon the CRTC will hand down its ruling on a list of regulatory issues triggered by the Online Streaming Act, C-11.
When it comes, you may wish to refer to my forthcoming book, “Canada vs California: How Ottawa took on Netflix and the Streaming Giants.” It’s set for publication by Lorimer Books on May 1st.
The book looks backwards and forwards. It begins with the Mulroney Conservatives’ reboot of the Broadcasting Act for new distribution technologies, anticipating the Internet. Then it turns the page to tell the story of how the CRTC exempted online broadcasting for 20 years; how Netflix and the foreign streamers surged unregulated into the Canadian market; and how political parties of all stripes were content to let sleeping dogs lay.
Then the Liberals changed their minds and in November 2020 we got the Online Streaming Act, a memorable two-year Parliamentary scrap, and a culture war.
Now it’s law and, looking forward, the book lays out the big issues to expect in the months and years ahead.
It’s a good politics story, worth telling with enough policy context to help Canadians understand what all the fuss is about.
You can pre-order in print or e-book from the Lorimer website or go directly to Indigo (it’s Canadian!), Apple, Amazon, or the “Shop Local” listing of Canadian bookstores.
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Last week I posted about the unregulated status of “Connected TV.” That’s a reference to the expanding distribution technology of programming menus embedded in Smart TVs and plug-in sticks.
I got feedback from the post. One reader asked for a more fulsome explanation of why critics were objecting to the lack of regulation.
Anecdotally, the home page on Amazon Firestick is now my first portal to video programming (the link to Bell Fibe is a pain so I still switch to the cable set-top box for conventional television).
There are no Canadian apps on Firestick’s home page. You have to add them. Needless to say, Amazon initially picks the top five streaming apps and there are no Canadian apps. The prime real estate on the home page is reserved for the latest Amazon Prime feature or series. You can’t opt out of that.
There’s no question that programming menus on conventional aggregation websites, like Corus StackTV or Roku, will be regulated by the CRTC. How much, we will see in time.
But the new Online Streaming Act specifically contemplates the fair access and prominence of Canadian channels to the platforms of online distributors.
As another reader commented, the CRTC’s dismissal of Connected TV as “hardware” seems to pre-judge a significant regulatory issue without a hearing. The same reader pointed out that the British regulator Ofcom, now carrying out its own version of Bill C-11, includes Connected TV within its regulatory review:
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The hate speech provisions of the federal Online Harms Bill C-63 are a continuous talking point on social media.
The Centre for Media, Technology and Democracy recently offered commentary from a panel of experts. They delve deeper into the pros and cons of amending the Criminal Code and the federal Human Rights Act.
If you have more time to invest, listen to Althea Raj’s excellent podcast on C-63. The first 45 minutes is a curation of critics’ commentary on the Bill. The last 25 minutes is the Justice Minister’s rebuttal.
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Still on the Paramount Global sweepstakes watch, the US media conglomerate may be bought by Skydance. That’s the film distribution company run by David Ellison, son of Larry Ellison (owner of Oracle Corporation, the Hawaiian island of Lanai and second richest person in America). Ellison the son would be buying from Shari Redstone, daughter of media titan the late Sumner Redstone.
There may be a TV series in this story, but perhaps it was already done.
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In the case of Bill C-63, the attention-getters are the hate speech provisions, covered here, here and here in this blog. I’ve included again a cheat-sheet to help you follow the precise criminal and human rights code amendments.
University of Calgary law professor Emily Laidlaw has posted a summary of C-63 and last week she joined Taylor Owen of the Centre for Media, Technology and Democracy to chair an expert panel, available now on YouTube.
Before giving you the experts’ headline observations, be reminded that the bill’s hate speech provisions build upon pre-existing criminal code provisions on the one hand, and on the other hand reinstate a human rights law repealed by a 2013 free vote in Parliament.
The criminal code amendments didn’t get a ringing endorsement from the panel. York University law school professor Kenneth Grad suggested that the slow and resource-heavy regulation of hate speech through the criminal code is an inefficient approach to combatting hate speech. He didn’t think that the increased prison penalties in C-63 would have much of a deterrent effect.
The other experts generally agreed with him. Sandy Garossino —the National Observer columnist and former prosecutor— said that the bill would be improved by giving the Crown the option to prosecute hate speech through “summary conviction” rather than indictable offense, chiefly because the latter requires a resource-heavy preliminary inquiry. The difference between the two prosecutorial options is that the summary conviction route is faster, carries lighter maximum prison terms (less than two years) and is more likely to get police and Crown support for laying a charge.
Garossino also favoured the bill’s expansion of the peace bond option to cover yet-to-be-committed hate speech. The peace bond provision has been the target of a fair amount of public hyperventilation over an Orwellian “pre-crime” police state. But Garossino suggests a hate speech peace bond would replicate Canada’s success with peace bonds as a de-escalating intervention in cases of stalking and repeated domestic abuse. The hate speech peace bond would have the added requirement of obtaining the Attorney-General’s consent to appear before a judge seeking prior restraint based on past behaviour.
The experts appeared divided on the “signalling” attributes of hate speech amendments. None of them used the term “virtue signalling” as the Liberals’ motivation for tabling the bill, but law professors Grad and Richard Moon saw more symbolism than substance in the criminal code amendments. Laidlaw raised the signalling question in a different light: that the bill might be society’s indication to victims in targeted communities that their interests are being taken more seriously.
The experts were more supportive of the bill’s reprise of the human rights proscription against vilifying hate speech. Grad characterized that route as more victim-centred: a civil burden of proof, cease and desist orders prioritized over punishment, and de-emphasizing the respondent’s criminal right to the defense of hate as “truth” that is prone to creating a platform for more hate speech.
Law professor Sunil Gurmukh argued that the line drawn between vilifying hate speech and awful-but-lawful speech was a lot brighter than assumed. A series of litigation precedents has already been done —for example, identifying the no-go zones of publicly vilifying Jews, women, and LBGTQ+ Canadians by using degrading stereotypes.
A note of caution was sounded by Professor Moon who cited the “disinformation campaign” behind repealing the human rights ban on hate speech. His concern was that, since 2012, hate speech has exploded on social media and any litigation-lead effort to contain it will result in the legal process being clogged and the overall effort to support human rights being needlessly disparaged and undermined.
The panel did not have time to delve into another controversial feature of the human rights amendments: the power of the Commission, under certain circumstances, to allow an anonymous complaint to proceed.
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One broadcasting policy issue that flew successfully under the regulatory radar during the Parliamentary hearings for the new Online Streaming Act was Connected Television.
Connected TV is the terminology used for Smart TVs —or streaming devices attached to stupid TVs— that slip their viewing menus and data aggregation in between the Internet and you through software embedded in the television or a plug-in streaming stick. The TV or stick manufacturer chooses which streaming apps get carried or made visible.
There are different viewership figures available, but about half of Canadians consume programming on smart TVs.
Radio-Canada published a news article earlier this month in which a number of leading cultural voices in Québec questioned why the CRTC was not regulating this programming distribution technology as it has cable, satellite and channel aggregator websites like Roku.
Those voices include Heritage Minister Pascale St.-Onge wondering aloud why the CRTC hasn’t moved on Connected TV (she missed her opportunity to tell them so in her Policy Direction to the Commission on the implementation of Bill C-11).
I asked the CRTC why not and got a polite but terse reply: the Commission “does not regulate hardware.”
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MediaPolicy has commented more than once on the expectations of the Québec music industry that the CRTC will do something meaningful to compel major streaming platforms to showcase French language songs. Left untended, the issue could be the spark a political confrontation between the federal and Québec governments over the jurisdiction to take regulatory action on this point.
There has always been a split between Québec cultural groups and the leading English Canadian industry voices on this issue of online music discoverability. Outside of Québec, the independent music producers group CIMA supports greater subsidies for music development, but no interference with playlist curation or song algorithms.
Last week the Heritage Minister announced a $16 million budget increase to the Canada Music Fund for the next two years. According to the Heritage website, in 2023 the federal government contributed $57 million for recording, touring, marketing and music video production. That included $43 million in base funding and a $14 million supplement.
The Liberal election promise in 2021 was to increase its contribution to the Music Fund to $50 million.
The federal grants are administered by the non-profits FACTOR in English Canada and MusicAction for French language artists. Radio broadcasters also contribute to the non-profits and it’s likely that music streamers will be levied by the CRTC.
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The Paramount Global sweepstakes continue in real time with abortive merger talks, the emergence of hedge fund buyers and now frowning bond rating agencies.
Another major US streamer Warner Brothers Discovery is at last launching its direct to consumer Max (a combination of HBO and Discovery) in Europe.
That’s something for Canadians to take note of, as Max has not launched in Canada. Bell Media continues to license HBO and Discovery content for the Canadian cable and streaming market. It’s a big piece of Bell’s successful strategy of making money on American programming and then earmarking some of the profit to lose money on CTV News.
Bell Media’s deal with Warner Brothers was renewed in May 2023 for an unspecified term.
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I like reading Canadian book publisher Ken Whyte’s Substack blog for a number of reasons, mostly because he likes to set things on fire whenever possible.
This week he’s writing about the impact of AI on Canadian book publishing.
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Earlier this week MediaPolicy published a summary of Leger’s public opinion polling on the federal government’s overhaul of hate speech laws. The Liberals’ new Bill C-63 appears to have captured the public mood, at least for now. (Note: the CBC news story and photo above are from 2014).
The complexity of our existing hate speech laws is considerable. I made up a chart for myself and I am happy to share it with you: buyer beware, I last studied criminal law in 1983. All corrections will be gratefully accepted.
That’s it for this week: I have to prepare for a one-year old’s birthday party. Wish me luck.
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