Honourable senators, I rise to speak to the government’s response to the amendments proposed by the Senate in relation to Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts. I would like to focus, in particular, on the government’s rejection of amendment 3.

This is probably the most significant amendment the Senate made to Bill C-11, and it was based on what the Senate Transport and Communications Committee heard over several months from dozens of witnesses. From my perspective, this amendment was a modest and minimal one that, in essence, responded to the minister’s commitment when it comes to regulated user‑generated content.

When the minister appeared before the Standing Senate Committee on Transport and Communications, he specifically claimed:

We listened to the social media creators. We listened to them, we understood their concerns and we brought it back, with the exception of 4.2, which catches only commercial content with the three criteria. That’s it.

Time and time again, the government has claimed that section 4.2 is only designed to catch commercial content. Time and time again, they have claimed that they’ve listened to social media creators, but, overwhelmingly, most social media creators have repeatedly disagreed with that, and they did so ostensibly before the committee. The proposed amendment was designed, as I see it, to simply confirm the minister’s own words.

Senator Simons stated at third reading:

. . . I think the biggest and most critical amendment we made was to a vexing part of the bill, subclause 4.2(2), which I like to call the “exception to the exception” clause. In the wake of some of the controversy around Bill C-10, the Minister of Canadian Heritage promised that Bill C-11 would not pertain to nor capture users of social media but only the big streamers who were analogous to traditional broadcasters. . . .

The proposed amendment would focus clause 4.2 on the intended target of professional music without unduly curtailing the CRTC’s discretion. These amendments would have the effect of focusing clause 4.2 on professional music that is downloaded by copyright owners or that has been played in whole or in substantial part on traditional broadcasting undertakings.

In essence, this means that YouTubers, amateur videos, or any other content which is not associated with professional music are not covered by Bill C-11.

The arguments made by Senator Simons were convincing for a majority of senators on the committee and those in the chamber, so the Senate adopted this amendment.

Why did the Senate adopt this amendment? It did so principally based on the overwhelming testimony that we heard at the committee on this specific issue. I would like to review some of the testimony so that all senators here today can understand what witnesses at the committee actually told us.

Scott Benzie, Managing Director at Digital First Canada, told our committee on September 28, 2022:

Our ask is simple: Section 4.2 needs clarity into what is in and what is out, because it currently includes the entire internet. Something this critical cannot be left to the CRTC to wade through.

Morghan Fortier, Co-Owner and Chief Executive Officer of Skyship Entertainment, told the committee on the same day:

Senator Simons has correctly described section 4.2 as the problem child of this bill. . . . the CRTC has already given us their interpretation of the bill. They’ve said quite plainly that [user-generated content] is scoped in and that they would require platforms to artificially manipulate their algorithms, so we know how the government and the CRTC intends to use the bill. If they do that, other countries will follow suit, and this will be a huge economic blunder on the part of the government.

There is demonstrable reason that user-generated content needs to be included in this bill. Thousands of Canadian small businesses and digital creators deserve far more consideration.

Jennifer Valentyne, who enjoyed a successful television career for years until she — to use her words — aged out, as a woman of a certain age, talked about how liberating it has been to now enjoy creating and posting her own content online and not having to worry about whether the men in the corner office think she’s too old.

She told the committee:

. . . they will hurt thousands of content creators across our country . . . .

. . . please change section 4.2 and write it in a way that leaves no doubt that user-generated content is exempt from this legislation.

We heard from Oorbee Roy, a skateboarding mom who features videos skateboarding in her sari. She told the committee, “Don’t suppress us in order to boost others . . . .” Later she added, “ . . . if 4.2 goes in as it stands, then I have to go look for a full-time job.”

These are only a few of the many individuals who delivered the same message to the Senate committee, so when I describe the amendment put forward by Senators Miville-Dechêne and Simons as modest, I mean exactly that. Other witnesses asked for much more when it came to the call of Parliament not to regulate user-generated content.

Monica Auer, Executive Director of Forum for Research and Policy in Communications, told our committee on September 27:

. . . Bill C-11 empowers the Canadian Radio-television and Telecommunications Commission, or CRTC, to regulate user-uploaded content, and in turn, regulate users, directly and indirectly. We propose dropping proposed sections 4.1 and 4.2 altogether. Broadcasters’ operations, not internet users, should be regulated.

So the amendment that was ultimately adopted by the Senate was a modest step that the government could easily have accepted, but it did not do so. What is the rationale in this regard?

The government argued that the amendment:

. . . would affect the Governor in Council’s ability to publicly consult on, and issue, a policy direction to the CRTC to appropriately scope the regulation of social media services with respect to their distribution of commercial programs, as well as prevent the broadcasting system from adapting to technological changes over time . . .

As Senator Simons correctly said in her remarks earlier this week:

. . . the government’s own written response to our amendment demonstrates that they wish to retain the power to direct the CRTC to do precisely that — to regulate the distribution of content on social media.

Witnesses who appeared before our Senate committee and creators who are trying to understand what sections 4.1 and 4.2 mean should heed the word of Senator Simons.

Of course, Senator Simons did not speak for us in the opposition. I understand that. She is a government-appointed senator, and she is being honest about the implications of this bill when it comes to the regulation of user-generated content. As Senator Simons acknowledges, the government’s response makes it absolutely clear that it reserves the right to regulate social media content without any hindrance in legislation. For the government, CRTC discretion is what is most important, and they want that discretion for a reason.

Konrad von Finckenstein, the former chair of the CRTC, told our committee that:

. . . there is no intention to cover user-generated content and thereby restrict the freedom of speech of Canadians. User‑generated content, while it is generally exempted, can be made subject to the act by an exception to the exemption built into subclause 4.1(2) of the bill. Clearly, this subclause was meant to deal with hybrid streamers, such as YouTube, but there are great fears that it may affect other so-called “digital first” broadcasters who produce programs solely for the internet as well as ordinary Canadians uploading videos or music.

Colleagues, I would argue that in the face of all this, we have a duty to say to the government just this: The Canadians who are digital creators deserve regulatory certainty. That certainty for Canadians is far more important than regulatory discretion for the CRTC.

The Senate introduced a very modest amendment to protect ordinary creators, particularly small players. We need to uphold that principle in our response to the government. It’s very disappointing to hear that the Senate, which proposed this modest but important amendment, appears to be ready to fold our tent on this issue and that we can’t do anything more. Well, I beg to differ. This is a perfect example of where the Senate can truly prove its value. This is not a budget hearing or a confidence matter. The evidence put forth in committee supporting this amendment was significant and quite convincing. I would argue that we as senators cannot ignore what we have heard from Canadians. There is absolutely no practical or legal reason why we can’t continue to hold our ground on this particular issue.

Honourable senators, an issue that was of fundamental importance for the Senate a mere few weeks ago remains just as important today, notwithstanding the government’s rejection of the amendment. If senators opposite are prepared to do that at the first sign of resistance from the government, then it exposes our new and so-called independent Senate to be a complete myth.

I urge you to listen not to what you are being told by the Prime Minister’s Office but to the Canadian creators who took the time to appear before our committee. Canadians are watching — closely.