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Stop trying to stuff the internet in our decades-old regulatory policies
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Stop trying to stuff the internet in our decades-old regulatory policies

Written by
Peter Menzies
Published by
 Financial Post
on
August 9th, 2019

Peter Menzies says that Canada needs is an entirely new communications policy and infrastructure that at its heart is an internet policy.

Canadian communications policy makers need to get their heads out of the 20th century, especially those who insist online video distributors such as YouTube and Netflix are broadcasters, while social media platform operators are publishers.

The internet and its providers are no more broadcasters than a horse is an automobile. If you don’t believe me, believe the federal court that agrees with me. Oh, and the Supreme Court of Canada that upheld that ruling. And while we’re at it, Instagram, Facebook, Twitter et al. are no more publishers than newspapers are just a fancy version of a town crier’s scroll.

Yes, a horse and an automobile are both means of transport. And newspapers and a piece of parchment can both deliver news via the written word. Yet while many of those attempting to influence the nation’s Broadcasting and Telecommunications Legislative Review (BTLR) panel would have you believe otherwise, having some features or functions in common does not make them the same.

Because here’s the thing: what the nation needs at this time is not a new telecommunications policy or a new broadcasting policy to give the Canadian Radio-television and Telecommunications Commission (CRTC) fresh tools. It needs an entirely new communications policy and infrastructure that at its heart is an internet policy. In other words, the BTLR panel and others will deliver a wise outcome only if they understand that what they have to deliver is a 21st-century communications policy based on core principles that best serve the people. Right now, as epitomized in the CRTC’s Harnessing Change report, which calls for regulating all commercial video, the mission instead appears to be how to stuff the internet into 1980s broadcasting policies that historically have taken a paternalistic eat-your-spinach approach towards consumers — market forces and viewer preference be damned.

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In terms of broadcasting, the core justifications for the CRTC’s current last-century policies are based, as Dr. Michael Geist of the University of Ottawa points out in his BTLR submission, on the allocation of scarce resources to maximize cultural benefit. But: “The broadcast world of scarcity has given way to a world of abundance, however, with no channel limits nor restrictions on the ability for anyone to ‘broadcast’ or distribute their content to a national or international audience. The regulatory world therefore no longer needs to rely on the policies of scarcity.“

For its part, telecommunications policy has been agnostic on content — people have always been able to speak freely over the telephone to individuals or groups — and has instead focused on such consumer issues as service, availability, affordability and competitor access. Those goals form a sound basis for a new communications act that would put citizens’ interests front-and-centre within a single entity directed by a single minister to replace the current two-headed monster governed by the disparate ambitions of the Heritage Ministry and the Ministry of Innovation, Science and Economic Development.

Which brings us to publishers. They, like broadcasters, perform the useful function of content aggregation. In their efforts to do so in a compelling fashion, they work as gatekeepers, selecting preferred content and, after editing it, posting it. When they do so, when they select and shape content, they assume responsibility for it — on the internet or otherwise.

Social media platforms do not perform this function, as American courts have ruled. Being private entities, they may set guidelines such as no nudity in photos. And individual posts are subject to the laws of the land — criminal and civil. But the very reason they and other aspects of the internet are both attractive and liberating is that people have a platform that allows them to speak their mind beyond the kept gates and, in doing so, to assume the liabilities that go with it.

Twitter or Facebook can enact whatever policies they believe are in their own best interests to shut down bad subscriber behaviour. But at the end of the day they should no more be held legally responsible for the post of a hateful comment than a telephone company should be held to account because someone used its network to phone in a threat.

Both the BTLR panel and whoever is governing Canada in 2020 would be wise to keep these fundamentals in mind if they are serious about building a regulatory framework suited to this century and not the one they were born in.

Peter Menzies is a former newspaper publisher and vice-chair of the CRTC. Though he advises tech companies on regulatory policy the views expressed here are his own.

© Financial Post

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