MediaPolicy.ca

“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 as National 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.

***

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.

***

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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Cover of the new report from Music Canada

April 20, 2024

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.

• A $42 million increase to the $1.3 billion CBC grant (effectively cancelling the remaining 450 of 800 staff reductions).
• An additional $3.3 million annually for the Canada Book Fund that supports publishing of Canadian fiction and non-fiction, falling dramatically short of the 50% budget increase promised by the Liberals in their 2021 election platform.
• $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. 

***

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.

If you want to make sense of it all, allow me to plug my forthcoming book, Canada v. California: How Ottawa took on Netflix and the Streaming Giants. It will be published on May 1 and is available now for pre-order.

***

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, Ikky et 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 the most 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. 

***

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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Nanos/Globe Poll

April 13, 2024

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.

***

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.

It’s all explained in this New York Times podcast.

***

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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April 11, 2024

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.

Here’s the Tribunal’s pithy observation on Kouba’s posts:

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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April 6, 2024

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 to rig technological algorithms in order to favour certain kinds of pro-government content online while discouraging content that government does not want us to see, in some cases taking that content 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. 

***

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:

***

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.

MediaPolicy has the report here.

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.

***

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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April 4, 2024

The federal government’s new Online Harms bill C-63 resembles the Online Streaming Act in at least one respect: 10% of the bill is getting 90% of the attention.

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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Radio-Canada episode of Enquête

March 30, 2024

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.

Here’s the latest.

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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March 23, 2024

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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March 21, 2024

Last week Leger released a poll on public support for Bill C-63, the federal Online Harms Act.

The survey reveals a significant lack of alignment between public opinion supporting the bill and the prevailing criticism of the bill in the news media and various blogs.

The lead poll question is this: Do you support the government’s plan to regulate content on social media to make their platforms safer and to remove harmful or hateful content?

The results were 68% in favour of the bill versus 24% opposed. You can download the report here to flush out the nuances in the responses.

Despite the strong support for the bill, there is anxiety about the impact on freedom of expression. The second question is this: Do you trust the federal government to regulate online content in a manner that protects your right to freedom of expression online?

The result was that 43% trust “the federal government” and 50% don’t. It’s not clear if this is a concern about the effective execution of the bill in practice or which political party is in government.

Even breaking down opinion into the bill’s three constituent parts (criminal hate speech, human rights hate speech and platform regulation), popular support is consistent. 

The fourth question about criminal hate speech tends to conflate two distinct offences (hate speech promoting genocide; willfully promoting hate): Do you support the government’s plan to impose stiffer sentences on those convicted of a hate propaganda or hate crime offence, including up to life in prison for advocating genocide? The current maximum penalty is a two year prison term.

The result was 72% in favour and 15% against. I have to say, that one took me by surprise. Life imprisonment.

On to the human rights question: it helps to recall that the bill reinstates the right of Canadians to file anti-discrimination complaints about hate speech to the federal Human Rights Commission, repealed by a free vote of the House of Commons in 2012.

The question is: Do you agree or disagree with allowing people to file complaints about online hate speech to the Canadian Human Rights Commission?

The result was 71% for, 16% against. 

An earlier Leger poll found widespread public support for a companion federal Bill C-367 that would repeal the current exemption in criminal hate laws for good faith religious argument (e.g. “God hates homosexuality”).

Back in the late 2000s, there was a lot of public debate about hate speech thanks to some high profile, and unsuccessful human rights complaints, against Mark Steyn and Ezra Levant. In the run-up to the repeal of section 13 of the Human Rights Act in 2012, the human rights law expert Richard Moon submitted an important Report that recommended abolishing section 13 (or alternatively amending it) and relying entirely on Criminal Code hate laws. 

I stumbled across an article he wrote, shorter than his Report, that does a great job contextualizing the free speech versus harm debate.

At the risk of simplifying his well reasoned arguments, Moon says that regulation of hate speech should be restricted to incitement or imminent risk of violence (and thus it belongs in the Criminal Code) and that stamping out non-violent harmful speech (which he takes very seriously) would require an intolerable level of censorship to work. That’s why he supported eliminating section 13 of the Human Rights Act.

If incitement of violence were the acid-test of censorship, there is still a debate over what is incitement. For members of those communities who have been the targets of hate and violence for hundreds of years, most hateful speech is a dog-whistle to violence.  The virtue of the Human Rights approach over the Criminal Code is that individual Canadians don’t have to ask the Attorney General’s permission to fight it.

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As I was hitting the “publish” button on this post, over at Canadaland an excellent podcast went up with host Jesse Brown interviewing Ivor Shapiro of the Centre for Freedom of Expression on Bill C-63. Worth a listen.

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March 16, 2024

The media misery meter spiked again this week as the Atlantic Canada newspaper chain SaltWire announced it was applying for creditor protection. By Wednesday, a court had granted it. SaltWire is the second Canadian newspaper chain to seek creditor protection in six weeks, Black Press did so in January.

SaltWire owns metropolitan dailies in Charlottetown, Sydney, St.John’s and Halifax and a variety of community papers.

There is a backstory of financial miscalculation. SaltWire bought 24 local newspapers in 2017 from Transcontinental, then unsuccessfully launched suit on the grounds that Transcon had withheld damaging information about the state of the business. 

The bankruptcy is in response to SaltWire being chased by the financier, Fiera Private Debt, that supplied the cash for the Transcontinental purchase. That’s not the entire story of course. The Fiera debt is at most half of what SaltWire owes to all creditors. 

This presents an opportunity for me to plug, one more time, my interview with CEO Jeff Elgie of Village Media, the successful community news network in Ontario. The popularity of the post took me by surprise: it sped past an old post about Margaret Atwood to become the second most read post in MediaPolicy’s short history. 

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You don’t need any help from MediaPolicy to point you to the public debate on the federal hate speech Bill C-63. The generous supply of condemnation from the nation’s free speech ultras is difficult to miss.

I note that Margaret Atwood has waded in again on the merits of Internet legislation as she did on the Online Streaming Act Bill C-11. This time she has declared the new legislation as Orwellian. 

The focus of most criticism is not on the “online safety” part of the Bill —where social media platforms are required to step up their content moderation and filtering, particularly where kids are concerned. Rather, the reaction is to the hate speech amendments to the Human Rights Act and the Criminal Code. 

Why we need stronger criminal sanctions against hate speech is something the government is going to have to do a better job of communicating. It will have that opportunity when the Bill hits Committee after Second Reading. 

The other objective of the Bill is to reinstate section 13 of the Human Rights Act, repealed with much fanfare in 2012. That was the subject of Ms. Atwood’s ire as she was bold enough to ask out loud what others might be thinking: won’t the Commission be flooded with revenge complaints and mercenaries trawling for the (up to) $20,000 compensation that the Commission can order for victims of hate speech spread across the Internet?

Another castigation of the Human Rights amendments came from David Thomas, the former chair of the Human Rights Tribunal (appointed to a seven year term in 2014 by Stephen Harper). His flamboyant guest column in the National Post echoes Atwood on the gates opening wide for mercenary complainants.

That got me curious about data, so I contacted the librarian at the Commission and asked for numbers on the section 13 caseload before it was repealed. It seems the Commission’s Annual Reports began tracking (or at least reporting) that in 2010 as section 13 became increasingly controversial. 

In 2012 for example, the Commission received 1500 complaints overall (not just section 13). Half were weeded out at the complaint stage, 209 were settled, 190 were dismissed and 113 were sent on for adjudication by the Human Rights Tribunal.

As for section 13 complaints here is the data, which may not be what Mr. Thomas or Ms. Atwood would expect.

Complaints received by the Commission:

Complaints “accepted” (i.e. processed for further determination):

Richard Moon, the hate speech expert who recommended in 2008 that section 13 be abolished in favour of greater enforcement of Criminal Code laws, suggested that the flow of human rights complaints through the federal Commission and Tribunal was modest:

Between January 2001 and September 2008 the [Commission] received 73 section 13 complaints (about 2% of the total number of complaints received by the CHRC). Of these, 32 were closed or dismissed by the CHRC and 34 were sent to the [Tribunal] for adjudication... Of the 34 complaints that were sent to the CHRT, 10 were resolved prior to adjudication. In September 2008, 8 of the complaints forwarded to the CHRT were awaiting conciliation/adjudication. In the remaining 16 cases the CHRT found that section 13 had been breached and imposed a cease and desist order. In several of these cases the Tribunal also imposed monetary penalties.

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The federal government has done the expected and made a five-year funding commitment to the Indigenous Screen Office at $13 million annually in production funds, to be disbursed by the ISO to Indigenous filmmakers.

The ISO has emerged as a parallel institution to the Canada Media Fund that channels production dollars to independent Canadian producers for “CanCon” shows that are broadcast on television and streaming platforms. The CMF receives funding from both the federal government and, upon the direction of the CRTC, Canadian cable companies.

One of the regulatory issues to be determined by the CRTC under Bill C-11 is whether both of the CMF and ISO will be able to supplement their existing funding from a levy on foreign streaming platforms.

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Dipping into the ocean of political opinion out there, I recommend a Canadaland podcast hosted by the very annoying Jesse Brown with an excellent panel consisting of Jen Gerson, Paul Wells and Stephen Marche.

The subject is blue skying about a Pierre Poilievre government.

You know that aphorism about good journalism “saying one true thing”? You will hear lots of that in this podcast. And plenty of annoying stuff too, so it’s worth your time.

***

And if all this politics gets you down, brighten up your day by enjoying London Ontario’s Ryan Gosling knockin’ ‘em dead at the Oscars.

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