LawBytes Podcast – Episode 13 | Convert audio-to-text with Sonix

Michael Geist:
This is LawBytes, a podcast with Michael Geist.

Navdeep Bains:
We can’t ignore some of these new complex challenges that have emerged. At the heart of these new challenges is the fundamental question of trust. How can Canadians believe in the good of this online world when they’re confronted with a video of 51 innocent people gunned down during prayer in Christchurch and that video goes viral. How can they trust their data will be used to improve their lives when it is used to bombard them with disinformation. Here’s the thing: innovation cannot happen at the expense of privacy and data and personal security. I’m happy today to present Canada’s new digital charter.

Michael Geist:
Years of public consultation on Canadian digital policy hit an important milestone last week as Innovation Science and Economic Development minister Navdeep Bains released the Government’s Digital charter. Touching on a wide range of issues, Canada’s digital charter features 10 guiding principles: universal access, safety and security, control and consent, transparency portability and interoperability, open and modern digital government, a level playing field, data and digital for good, strong democracy, freedom from hate and violent extremism, and finally strong enforcement and real accountability. To help sort through the digital charter and its implications, I’m joined on the podcast this week by Professor Teresa Scassa a friend and colleague at the University of Ottawa. Professor Scassa holds the Canada Research Chair in Information Law and Policy. She writes frequently on information and data issues at her Web site at teresascassa.ca, appears regularly in the media and before House of Commons committees and serves on several key advisory boards and panels including Waterfront Toronto’s Digital Strategy Advisory Panel and the newly created federal A.I. Advisory Council.

Michael Geist:
Teresa, welcome to the podcast.

Teresa Scassa:
Thank you for having me.

Michael Geist:
It’s great to have you. So we’re recording this at the end of a week in which the innovation science and economic development minister Navdeep Bains has been off selling the digital charter in Toronto and Montreal. It’s been in the news regularly and so I want to talk a bit about the charter and I guess consider whether or not Canadians ought to be buying what the Minister’s been selling. What do we start with a little bit of background though. What is the digital charter.

CBC News:
The Federal Government is launching a new digital charter to protect, they say, Canadians personal data. Ottawa is promising changes to federal privacy laws to give Canadians more control over their personal information when it’s collected by technology companies. The government laid out a series of principles today they say will guide changes to the Privacy Act. The changes will also include penalties and fines for tech and social media companies that breach the new privacy law. So does that mean the government will start fining Facebook right away. When can Canadians expect these new protections to kick in?

Teresa Scassa:
The digital charter is built around 10 principles that are intended to guide the government’s digital strategy going forward. So so they called it a digital charter. They’ve they’ve set out these principles and. And. Yeah. And that’s that’s essentially what it is. And the principles are are somewhat broad principles. But the I guess the issue you hear the hesitation my voice the issue I have with the digital charter is that I don’t like the word the use of the word charter in there because I would see it. I would call it a digital chart. It’s a roadmap right. It’s here are some principles that are guiding us as we develop policy. And that’s fine. And there are interesting principles and they will shape or guide policy but a charter is the charter is a document that confers rights and entitlements and often those are actionable rights. And so there are things in this digital charter that maybe should be rights but aren’t there just principles like Canadians should have universal access not Canadians have a right to access. Right. So so you know it may sound a little bit like quibbling but I think that if we’re serious about ff something like a charter articulating the basic rights that Canadians should have in a digital society. This isn’t the document. This is a roadmap to developing digital digital strategies digital policy. And it may be an interesting roadmap but it’s not a charter.

Michael Geist:
This is a really interesting perspective. So it’s a road map or a charter it sometimes has almost a checklist. Yeah kind of feel on a whole sort of issues including universal access and the privacy issues and open government and those sorts of things so given that it is not that charter in the sense that one might typically think of something conferring rights. I take it this is a bit more aspirational in terms of where were they where the government says they could be going as opposed to resulting in something immediate.

Navdeep Bains:
It’s going to be very difficult to pass any legislation at this point. What we’ve done is proposed policies and changes to the privacy legislation that we’d like to implement in a timely manner. Clearly there is very limited runway in the legislative agenda for this session. So the hope is for putting in our platform and also in the next mandate as well if we’re fortunate enough to earn the trust of Canadians.

Teresa Scassa:
It’s almost like a political platform. Given that an election is six months. It’s it’s basically saying this is this is what we’re thinking where we’d like to go. These are the you know the values that will underpin what we’re going to do in terms of digital strategy and so all of that’s well and good. And. you know and I think it’s it’s good to set those out so but that’s what it has the feel of. I mean there are things in there that that aren’t new. Again the concept of universal access how long have we’ve been talking about universal access in Canada. How long have we been talking about. Well you mentioned privacy but privacy isn’t actually one of the principles. Control or consent is a principle. Better enforcement of all rights not just the privacy rights is a principle but there isn’t actually a principle that says that talks about privacy as a as a right. It’s it’s about aspects of data protection essentially.

Michael Geist:
Oh that’s right. What do we actually go there and talk a bit about the privacy side which is which was certainly one of the aspects of the chart or charter that included a full background paper and the Minister has been talking quite a lot about it. So obviously got a fair amount of attention. Knowing the Privacy Commissioner of Canada was out speaking this week also had major privacy conference and was talking about the need for a rights based framework. Do you have the sense that the minister that the minister and the government are on the same page as where the privacy commissioner wants to go?

Teresa Scassa:
No no. I think that what we have in the document from ISED about reforming paper essentially is is a discussion of the reform of a data protection statute. It’s data protection reform it’s not a human rights based approach to privacy or to digital rights more generally it is. It is a set of reforms to data protection laws and that may sound like a subtle distinction but I do think I do think it’s it’s an interesting and important one. We don’t actually have a right to a broad right of privacy that’s contained in that in the Canadian Charter of Rights and Freedoms there’s a right to be free from unreasonable search and seizure so there’s a search and seizure related privacy right that comes up in a number of different contexts mostly related to law enforcement. There’s been some discussion around whether the right to life liberty and security the person has a privacy dimension but it’s not extensive. If there is one and so we don’t have sort of a broader right or a set of principles around privacy.

Teresa Scassa:
One of the things that I think is interesting and I and I find entirely absent from this and not just this but other kind of data protection oriented things is is this is the is any addressing of the issue of surveillance. Individuals to a completely unprecedented extent or being exposed to surveillance both by the private sector. We hear a lot about surveillance capitalism and surveillance in the context of smart cities but there is just a massive data collection which is a form of private sector surveillance. And the part that doesn’t ever get talked about a great deal is the extent to which government has back channels into all of that private sector data and can carry out various forms of surveillance using those back channels for access and I’m not saying they’re gonna illicit back channels but they can get you know judicial authority authorizations or warrants and there have been disputes in the past about whether they need warrants for access to some of that information. But there are routes by which government can access the massive amounts of data in the hands of the private sector and some of those channels are set up very explicitly in the data protection laws and these are the exceptions to the requirements for consent. And so you know I think this is a part of data protection how it gets ignored which is that these exceptions to consent expand and the channels and the routes are there and the amount of data that’s being collected by the private sector expand and we never really talk about what we need to do to what kind of frameworks we need and place what kind of additional protections we need in place to manage the significant changes in both the volume of data in the hands of the private sector and the interest in government and having access to it. And I do think that we need to be thinking about that.

Teresa Scassa:
So you know if you want to talk about our human rights based approach to to. Privacy legislation. I’d like to see a right to be free from unjustified surveillance. And then I’d like to see what that looks like in practical terms. So this is something I think that we don’t see in the digital charter and we don’t see it in this discussion about PIPEDA and it doesn’t get talked about a great deal but I do think it is a very significant issue and one that will I think have continue to have or may have greater ramifications for example when you get data.

Teresa Scassa:
When we get more standardized data for example open banking and standardized financial information it’s gonna be very tempting for governments to to. To analyze large volumes of data looking for red flags or looking for patterns in the way that they now get tower dump warrants for example and and look for things within the data that they collect. And again that’s data from the private sector. So that’s a little bit of a side issue it’s not in any of these documents but to me I think this is something that we don’t talk about enough and we don’t think about enough and it’s it’s the relationship between all of that private sector data and government and how we are going to manage that relationship in a way that that that that is in the public interest. But that also protects our rights.

Michael Geist:
That’s an interesting perspective and it strikes me that this document particularly the privacy background stuff not only does not address that issue but it’s focused primarily on private sector and presumably the minister would say well that’s where my constitutional responsibilities are but whether we’re talking about the political parties and the ongoing gap there or even the Privacy Act which they have also said that we’re prepared to take a look at after decades of really not doing very much the focal point in terms of saying we’re going to modernize these rules is almost entirely private sector focused without really looking internally at the government itself.

Teresa Scassa:
Yeah. And I do think that’s really I think that’s really important because the two are now very very closely linked and in so many different ways. And you and you can see the the interaction of public and private sector again in things like Sidewalk Toronto where there’s you know there’s an increasing overlap between the things that government do and the things that the private sector do and the things that they do together and and data caught in between and so I think this is becoming more and more of a challenging issue. And so it’s true. You mentioned political parties I mean there’s that there’s a little bit in the statement about the or the document about the reform of PIPEDA that talks about how it might be necessary to look at whether the application of PIPEDA needs to be changed because there are more and more non-profit organizations that are engaged in data collection. And I was reading that and I thought this would be a place to mention political parties but they’re not there, whether they’re nonprofit organs they fall under that umbrella of non-profit organizations that we need to think about or look about. Look look at whether it’s meant to fall under that I don’t know but it’s not there in any explicit term.

Michael Geist:
And that’s you know it’s been difficult to get governments of all political stripes to focus internally once they get into office. It seems like making changes whether it’s on the access information side or on the privacy side is far more challenging. And I suppose it’s easier to get other people to to measure up and even that’s been difficult in terms of PIPEDA reform. When I think of the early stages of PIPEDA it talked about trying to strike a balance. Business considerations and the like and that was the way we understood business and e-commerce back in the 1990s and we clearly have some different conceptions and different models today. Can you talk a bit about some of the kinds of things the government is talking about from an updating perspective and perhaps are welcome but that are open and perhaps even long overdue in terms of some of the changes they’re trying to make.

Teresa Scassa:
Yeah. And I think the government has taken a serious look at at some of the challenges the need for modernization there are things in here that look a little bit like some of the things that are in the the famous GDPR that everybody’s talking about. And so for example there are some of the interesting things I mean there is there’s talk about things like data portability although it’s referred to as data mobility and that’s the idea of it’s partly data it’s data protection in the sense of giving individuals more control over their data. But it also I think is linked to both consumer protection and competition law. So it’s one of those things that’s a little bit broader in terms of its scope and the idea is that individuals would be able to take their data from one company and bring it to a new company entering the market that that will then be able to with that data be able to offer them comparable a comparable level of customized service for example. And so so there’s some discussion of data mobility it’s interesting it’s a little bit different from the GDPR in that they’re not talking about data in machine readable format but talking about data in standardized format which is a little bit different and maybe a little bit more case by case industry by industry. And so. So that’s interesting. So data mobility is one aspect there’s some discussion of.

Teresa Scassa:
There’s a little bit of discussion about the right to be forgotten but they’re not going there fully because there’s a court case before the Federal Court of Canada but. But it’s. That this might be something that reputational rights and linked to that the right to have information deleted for individuals asked that their information be deleted which is a dimension of that. There’s some discussion about algorithmic. Well I was gonna say algorithmic transparency but perhaps a right to explanation of automated decision making. And so again that’s something I think that people are concerned about and interested in. There’s also discussion about making changes to the rules around consent in a variety of different ways to try and make individual control over personal data more manageable so both reducing the amount of information that’s pushed at consumers and making it more accessible and easy to understand but also providing other other means by which individuals can manage their personal information and there’s some you know there’s some interesting stuff also about relying on standards and data trusts and other sorts of mechanisms to allow for management of personal information. So there’s quite a lot of stuff in there and I think it’s all thoughtful and these are you know these are directions that we need to be thinking about in terms of data protection. But that’s a lot. There’s a lot.

Michael Geist:
There is, I mean a lot of this really would would significantly change some of the approaches that we’ve had in the past and some of some of the kinds of things around algorithms and data mobility or portability feel pretty responsive to both open banking or some of the emerging business models that are out there. The changes to consent of caught some people’s attention and not in a good way made people think consent is the bedrock of what privacy laws are supposed to look like and this one seems to suggest that at least the government here is suggesting and consent isn’t always all it’s cracked up to be. You’re always looking for consent in every instance and a lot of people are effectively consenting to things and have no real idea what they’re consenting to. What’s your thoughts on on shifting towards more transparency and better ways of managing one’s data without necessarily saying that it’s got to be consent in every situation.

Michael Geist:
I mean frankly I think consent is broken the way it’s currently dealt with under in practice and under the legislation. I mean nobody can manage. Nobody has the time or the energy to manage information. And you know and in fact so many services are tied to consent. Right. You can’t proceed to get the service unless you agree to the terms and conditions and the privacy policy so that it’s not even a free choice if you actually you need to do something. You need to agree to the form it’s not like you get to negotiate it. So consent with respect to what’s happening to personal information I think becomes really quite meaningless in those contacts. So there’s. something in there that talks about taking consent out of contracts for the services which is interesting so separating the agreement to the service and the agreement to privacy that’s that’s an interesting development. And so I don’t see this as being negative with respect to consent if it’s not working right now and if people are consenting left and right as you say to anything just to get access to the service or just because there’s simply too much of a burden to manage all of this and frankly then you have to read the privacy policies and understand them and it’s that’s you know that’s not an easy thing to do. So I think that finding ways to make consent more manageable and to reduce the burden on individuals I think is important.

Michael Geist:
And it’s interesting I think we’re gonna end up with quite a battle there certainly from some who say you can’t you simply can’t abandon that model although I’m inclined to agree that too often the consent models feel completely illusory.

Teresa Scassa:
Yeah.

Michael Geist:
You’re consenting as a matter of course without reading it’s certainly not an informed consent. And we’ve seen that play out a number of times. Say even with the anti spam legislation where suddenly people were inundated with messages from organizations where they were purported to obtain some form of consent that was consistent with where the law was at. And it turned out that most people weren’t even aware that someone had ever thought that they’d given it that kind of consent. So once people were actually made aware of it. So hold on a second. This might try to find new mechanisms to ensure that people’s perspectives or views are better reflected in terms of how their information is managed which perhaps holds some promise.

Teresa Scassa:
It does hold some promise and there’s there’s discussion in the document about it increase expanding the areas for example where fines can be levied so on the enforcement side and consent is specifically mentioned for one of those so if if consent is obtained. To the or if an individual is sharing information but doesn’t consent to certain uses and the information is used for those purposes anyway or disclosed it without the consent then there may actually be the potential to to address that with fines which would certainly strengthen them which would strengthen the consent that’s being given because as you say right now you know whether what happens. I mean there’s two things. One is we may be consenting the vision of what we’re consenting to may be quite different from the reality of what we’ve consented to and that’s one problem. So that you actually have technically agreed to a whole range of disclosures that you didn’t mean to agree to. But there’s also the situation where you know you go in and you actually take the time to fix your privacy default settings and do all of this and then you find out after the fact that the information was used for purposes that you didn’t agree to. And there’s not much recourse except right now a complaint to the Privacy Commissioner which will lead to a series of findings that say that shouldn’t have happened.

Michael Geist:
Right. I’m glad you raised the issue of enforcement and would feel sometimes like the futility of filing complaints when all you’re left with is well-founded finding and starting from scratch at the federal court if you want something more. The government has emphasized the enforcement.

CBC News:
How will what you’re proposing be enforced. What kind of penalties will your government establish.

Navdeep Bains:
That was a key part of the changes that I talked about today. It was really about strong enforcement so significant and meaningful penalties maybe a percentage of revenue and we’re gonna be looking at other jurisdictions as well. We’re also going to be looking at how two companies even collect data or revenue and if they do not follow the privacy laws in this country we’re going to make it difficult for them not only to collect the revenue but collect data as well and this sends a very clear signal signal that enforcement is very important part of the changes that were proposing.

Michael Geist:
It seems to me that part of that may be driven by the news cycle and the recent Cambridge Analytica Facebook set of findings from the B.C. and Federal Privacy Commissioner in which Facebook response to those findings was well thanks but we’re not really that interested. And so the government now says we’re talking about real enforcement in fact I think I’ve heard Navdeep Bains talk about potentially global revenues and sort of modelling on the European approach and even talked about 5 percent I think in one interview which would suggest even higher than what we see out of Europe. What’s your what’s your view generally on our ability to get large global platforms to pay attention to Canadian privacy law and is the lack of enforcement one of the challenge room the real challenges we faced.

Teresa Scassa:
Yeah I think lack of enforcement has generally has been a challenge across the board not just with large platforms but but right across the board and in fact you know it may be even more acute with you know medium to smaller businesses in the sense that a lot of the large platforms are now paying attention to the GDPR and GDPR compliance and are at not just platforms but any large company in Canada that does business across borders is going to be you know raising their standards to the most stringent standards which are currently GDPR. And so we’ll probably benefit indirectly from from that. So I do think. But I do think that having stricter stronger enforcement measures not only will encourage greater compliance with the legislation because frankly if there isn’t really a consequence to not complying then why would you go to the expense of complying. And there is an expense there. So I think that that should make that should make a difference and I think it also may help with a general sense of futility and disempowerment among the broader population when it comes to when it comes to privacy the sense that you know people want if something goes wrong people want and they have a statute that says this is how it’s supposed to be. You know if nothing happens if there are no consequences then that’s actually I think extremely disheartening and discouraging and this document talks about trust and the importance of building trust and this idea that Canadians are going to need to be able to trust when they share these enormous quantities of personal information with companies that that that it is being dealt with appropriately so I do think the enforcement piece is appropriate there how much of a difference it will actually make people know that Facebook and other large companies are being fined left and right in Europe and and in the United States so we’ll see how much impact that has on changing things I think it will have. I think it will slowly have an impact.

Teresa Scassa:
That’s an excellent point. It’s really this notion between the large global platforms and the SMEs. I was reading I think was just this morning a piece in TheLogic, a digital publication focusing on the innovation economy in Canada, that was reflecting on the collision conference that took place in Toronto and they had asked a lot of CEOs and others about the charter and specifically about the privacy reforms and the response was actually exactly what you just raised. Those that are playing in a global environment said we’re already focused on GDPR like requirements and those enforcement measures. And so as long as the Canadian rules are kind of sufficiently similar or at least recognizable based on the kinds of obligations we face globally this isn’t anything particularly new. But some of the SMEs that pay far less attention potentially to some of these rules. This these may be game changers in terms of the kinds of things they’re required to do.

Teresa Scassa:
Yeah that’s right. And you know it’s always been whenever PIPEDA reform has come up in the past and it’s come up so many times. It’s always been this idea that it was going to have too much of a negative effect on business. And I think SMEs were a big part of that that it that it was going to have this and that it was simply going to be too costly and was going to harm business because the cost of compliance would not be feasible. Now I think the cost of non-compliance is going up. We’re seeing more and more class action lawsuits for example in Canada a really rapidly growing number of class action lawsuits in Canada over data breaches and other mishandling of personal information. So you know I think that yes there are the costs of non-compliance are there and are growing not just. It’s not just all about PIPEDA. It’s what’s also happening in other contexts too.

Michael Geist:
I think that’s right. One of the other things that’s happening right now of course isn’t just the privacy side and one of things that was notable I think about the way even this charter was launched was prime minister started talking about it even before Navdeep Bains did and his point of emphasis wasn’t on the privacy side to a significant extent at all it was more focused on dealing with concerns surrounding hate online and extremism.

Justin Trudeau:
Here’s the reality. People are losing trust in digital institutions for a whole host of reasons. They’re anxious about the future of tech and the future of data from emotional contagion experiments to major privacy breaches. These concerns are absolutely valid.

Michael Geist:
We’ve seen a big shift in terms of the government talking points on this and clearly the Prime Minister’s interests on this. Can you talk a bit about what the charter has to say about regulating social media companies or finding ways to deal with the harms online in a way that we at least up until recently hadn’t seen our government talking about.

Teresa Scassa:
Yeah and it’s interesting that this has become you know this. This has also captured so much attention and you know I find it interesting also that the focus is on hate and extremism and I think you know those are important things to be addressing. So I don’t mean to diminish that at all. There’s also the whole disinformation and other sorts of toxic behaviours online. There’s those raised some really big challenges and they raise challenges I think that are going to you know bring us sharply up against freedom of expression values on the one hand and on the other hand they’re also going to raise questions about how we’re actually going to do this. And you see this a little bit in the right to be forgotten. Because it’s one thing to talk about a right to be forgotten in the privacy context and then when you’re going to implement it. I mean there’s a whole you. There’s you almost have, you have to turn to the platforms and it’ll be the same thing with dealing with hate and extremism and misinformation is there is going to have to be some sort of relationship with the platforms in order to deal with that or to manage it. And so I think that it’s going to be interesting to see how that that’s not going to be easy.

Michael Geist:
No it’s not. We’ve seen some jurisdictions that may not have charter like rules take pretty aggressive positions in terms of the kinds of expectations they have for some of these platforms or intermediaries. Let’s take action against this kind of content. It was striking that one country that sort of stayed to the sidelines a little bit in the United States at least with the recent efforts post Christchurch. Part of that may be the companies are based there but part of it quite clearly is that they’ve got First Amendment rights there that may find themselves quickly conflicting with some of the expectations that we see bubbling up. I think you’re right to raise the charter. Canada, at least this Government, has moved itself more and more towards the more aggressive approach, at least in terms of some of the rhetoric but we still do have a Charter of Rights and Freedoms here that may significantly constrain our ability to at least mandate certain kinds of actions.

Teresa Scassa:
Yeah. And I think I mean I think I do think Canada has been maybe better at finding a balance and more open to finding a balance and I think that the the way in which our charter is drafted for example it does explicitly contain equality rights provisions and you know I think that the charter itself demands doesn’t put one right above another and demands a balance as well. So I do think that that may provide a different constitutional context but it’s it will be challenging and and it’ll be particularly challenging because it’s I think it’s going to be hard especially when you’re talking about the major platforms it’s going to be hard to do things on a piecemeal country specific basis. The global issues are going to be extremely complex because the message. You know it’s one thing if the message is coming from Canada and you know that that makes it a lot easier than if the message is coming from another country. So you know I think the global dimensions are going to make this incredibly challenging.

Michael Geist:
Yeah I mean we think the Equustek case of course in Canada raised this issue of Canadian court orders applying outside of our jurisdiction. And you quickly devolved to a place where if every country gets to say these are the standards that we want to see applied to access to certain kinds of content and our expectation is full scale moderation by the large platforms you’re throwing out or losing a whole lot of freedom of expression along the way and media and finding places that may not have the same kind of cultural considerations or legal rules or safeguards in place started doing decisions for countries to do.

Teresa Scassa:
Yeah. And then of course who are who are the the very low paid moderate haters who are reviewing the content and where are they located and you know what values influenced them and what kind of conditions are they working in and you know in some of that of course may shift to AI. But then you’ve got all of the you know. So this is this. This will be this is not gonna be solved overnight. And it’s not gonna be solved without controversy controversy either. But but but there you know there are really important issues and I think they’re becoming even more critical as we move forward. But yeah that that’s going to be tough.

Michael Geist:
It is. I mean it feels like that’s the case for a lot of these issues here. I mean I come back to this description of here’s a chart where there was a lot of different things raised. There isn’t an immediacy to make changes in some instances in part because as you’ve mentioned we’re in an election year and so the clock has effectively run out on full legislative change and even something beyond that is less than legislation is still difficult. I’d be remiss before we close if I didn’t pick up on you just had a little brief reference to A.I. and that’s been one of the focal points in this as well and certainly of this government, which has made significant investments in A.I. and talked more and more about A.I. policy. You’ve been named as a member of the new A.I. Advisory Council one of our colleagues Ian Kerr another member of that council. Any thoughts on the role either the council or perhaps more broadly if it’s still early days there that Canada can play when it comes to some of these A.I. policies that in some ways raise some of the same kinds of global challenges.

Teresa Scassa:
Yeah and I think it is early days so so there’s not a lot that I could say about the council itself. But I do think that there there are really two pieces one is the role that Canada can play internationally in influencing and in helping to develop approaches and ethical approaches and ethical guidelines and standards for artificial intelligence and sort of more global norms around the circumstances in which AI should or should not be used. And so there’s that international but there’s a domestic role as well. And I think that you know for example the government recently put in place its directive on automated decision making in the federal government which is a really interesting document. And there’s a great deal of thought went into it. And it’s meant to do to to guide and to shape how automated decision making will take place in government and we’re kidding we’re kidding ourselves if we’re if we think that that’s not already happening and that it’s not going to continue to happen and grow on a on a more significant scale. And that’s just the federal government we’ve got all of our provincial governments who are also you know looking at automated decision making and variety of forms so it’s here, it’s affecting our lives. There’s the whole private sector piece as well. So I know that the AI advisory council of course is not going to touch on what provincial governments do or any of that sort of thing. But but I think there is a tremendous amount of change that is happening and impacts that we are going to experience as a society. And and we need to be thinking about how we’re how we’re going to manage those changes how we’re going to to develop equitable fair processes and protocols whether the decision making is coming from government or from the private sector it’s going to have significant impacts in our lives. So yeah there’s a there’s no shortage of work to do on the side as well.

Michael Geist:
No there’s not. Well you know I think I speak for a lot of people in a way grateful that you’re on that council and grateful for the the work you’ve been doing on these challenges whether it’s through your blog and your research and the writing that you’ve done. Thanks so much for joining us on the panel.

Teresa Scassa:
Thank you.

Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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The LawBytes Podcast, Episode 6 (transcribed by Sonix)

Michael Geist: This is LawBytes, a podcast with Michael Geist

CBC News: Broadcast regulator is calling on the government to tax the likes of Netflix and Spotify among others. The CRTC has proposed that such companies including Internet service providers should be forced to fund the production of Canadian content. The intention is to help compensate for the declining contribution of cable and satellite providers.

Catherine Tait, CBC President: So unbelievable to be able to experience that kind of cultural sharing. So for this we are very grateful to Netflix. However, fast forward, to what happens after imperialism. And the damage that that can do to local communities. So all I would say is let us be mindful of how it is we as Canadians respond to global companies coming into our country.

Michael Geist: For the better part of two decades Canadian cultural groups have been pressing Canada’s telecom and broadcast regulator the CRTC to regulate and tax the Internet. As far back as 1998, the CRTC conducted hearings on new media in which groups argued that the dial up internet was little different from conventional broadcasting and should be regulated and taxed as such. The CRTC and successive governments consistently rejected the internet regulation drumbeat citing obvious differences with broadcast, competing policy objectives such as affordable access, and the benefits of competition. That seemed to change last year when the CRTC released Harnessing Change: the future of programming distribution in Canada, a report that dramatically reversed its approach. The CRTC reversal highlights competing visions of Canadian content regulation and the Internet. There are those such as CBC’s Catherine Tait who have likened Netflix to a cultural imperialist that requires a regulatory response. Others look at recent data that shows that when it comes to Canadian English language fictional programming, foreign financing is now larger than the funding from broadcasters and Canada Media Fund contributions combined. As one columnist recently concluded “the evidence doesn’t back up the case that extending the paternalistic Cancon regulatory model to foreign streaming services will do anything to save Canadian culture.” To help sort through Cancon funding, internet regulation and the CRTC, I’m joined on the podcast this week by Peter Menzies, a former CRTC commissioner and vice chair of telecommunications. Peter has been a reporter, newspaper publisher, regulator, and is now the director of the Royal Saskatchewan Museum

Michael Geist: Thanks so much for joining me on the podcast.

Peter Menzies: Thanks very much. It’s a it’s a pleasure and I’m flattered to be part of this.

Michael Geist: Well you’ve been one of the the people have been really outspoken when it comes to the CRTC and cultural issues so you’re really a perfect person to come on and talk about some of the things that are taking place and I thought we’d start by focusing on what seems like a recurring issue literally years and years and years of the same kind of issue being discussed when it comes to the prospect of new sources of revenue, new fees associated with either Internet streaming services or internet services more generally to fund Cancon and so we’ve seen this issue recur sometimes talking about it in the context of a so-called Netflix tax. Other times about broadband or wireless taxes all in the name of supporting the creation of Canadian content. It was back in the news recently with new data that showed that foreign services are significantly outspending Canadian broadcasters when it comes to at least English language drama.

CBC News: Canada’s eight billion dollar production industry is booming like never before. And another studio nearby asset is under construction for another Netflix series called Lock and Key. Foreign streaming services from Netflix to Amazon to Hulu are creating jobs here. But they make no contribution to the government sponsored funds.

Michael Geist: And so I guess the question that I want to start with is there a Cancon crisis in Canada.

Peter Menzies: There’s always a Cancon crisis in Canada in the minds of some people and in the minds of some other people there is never really a Cancon crisis in Canada. So it depends how you look at it in terms of that sort of sense I mean from a person lobbying for more funding for Cancon or for a person lobbying for more funding for anything it’s always to their advantage to have a crisis ongoing. And I think that’s been part of the culture of the Cancún discussion for at least 30 years. And it really goes into our history of being of protecting ourselves against the foreigners. I’ve used the phrase couple of times we’ve built this big beautiful wall between us and the United States to protect our culture from them. And now we’re having a lot of difficulty adjusting to the idea that walls aren’t what we need.

Michael Geist: What do you think we do need I guess just to jump right in in this in this new Internet based environment.

Peter Menzies: Well I mean adaptation becomes the first thing that gives a little context about 10 years ago. It’s probably at least 10 years ago or so was that the CMPA primetime conference in Ottawa. And I think it was Glen O’Farrell. But I stand to be corrected. But I was taking some questions and that sort of stuff and I remember asking him sort of regarding the Cancon subsidy and that sort of stuff. That’s sort of at what point in the future you know 25 years 30 years 50 years 100 years sort of thing do you see Cancon being able to be sustainable on its own.

Peter Menzies: And the response was never. And I realized then that for folks inside the system it was inconceivable for them that there could be something other than the system and that was the only way they could think. I mean they’re not bad people. It’s not necessarily a bad thought. But it was a limited thought. So what we need to do is move away I believe to have a better life for Cancon producers and exploit the whole world. We’ve been trying to serve a market of 35 million people split into two languages. So you have one market really of about 25 million people and another about 10 million people. Very small markets through subsidy and done that reasonably successfully for a long time. There is an English speaking and French speaking market out there in the world that we could serve. That has hundreds of millions if not billions of people in it. And that seems to me like a real opportunity that we would ignore at our peril.

Michael Geist: The CRTC for many years and you were obviously there for many years did not want to come close to kind of regulate regulated type solutions when it came to the Internet. They obviously played a key role in structuring this Cancon support model but that was based on conventional regular broadcast in the Internet space. They really took a hands off approach dating all the way back to the 1990s with the digital media exemption essentially the power to regulate. But choosing not to. Now that seemed to change last year with a report titled Harnessing change in which the current CRTC chair Ian Scott got behind Internet taxes and I know that he insists they aren’t taxes. He talks instead about contributions to the system.

Ian Scott: We examine the future of programming distribution in Canada in our Harnessing Change report prepared at the request of government and released in May of this year. This report asks a fundamental question: what can be done to support the production, discoverability and promotion of Canadian programming. Harnessing change concludes that new innovative approaches that would engage digital players are needed.

Michael Geist: I was curious about your thoughts on the report and what sure feels like a significant reversal in policy.

Peter Menzies: Yeah it is a significant reversal on policy. I mean it it went or at least approach and philosophy.

Peter Menzies: It went from you know sort of the discoverability summit and that idea to some of the directions encouraged by the previous commission under JP Blais and and for that matter supported by the Heritage Minister in many of her statements, Minister Joly, regarding the need to prepare Canada for the future and pushing for commitments that benefit our industries.

Melanie Joly: Today I’m announcing the first of these agreements on behalf of the government of Canada and Netflix. Under this agreement Netflix will create Netflix Canada, a permanent film and television production presence here in Canada the first time that the company has done so outside the United States. And building on the strong track record of investing in shows like Anne and Alias Grace with the CBC, Travellers with Showcase, and Frontier with Discovery. They have agreed to invest a minimum of five hundred million dollars in original productions in Canada in both official languages over the next five years.

Peter Menzies: Even the title Harnessing Change indicates that you’re trying to stop something you know it’s a King Canute style approach to things we are going to harness change rather than embracing change rather than adapting to change rather than exploiting change to our benefit. There’s all kinds of different ways you could look at it. So I mean I think that that approach I find very regressive and kind of sad because you can’t stop change. As to we meddling with the Internet and content on the Internet. That’s a very very dangerous game to play. The Internet, and that speaks to how the the CRTC’s affection for the broadcasting act, which is I mean they have to you have to fulfill it. It’s your job. But in comparison to things such as the Internet and telecommunications it distorts the argument. The Internet is not broadcasting the Federal Court has ruled on that it may carry video. But I mean everybody carries video. People go live and podcast themselves at an Eric Clapton concert. The Globe and Mail has video, National Post has nothing but video on its Web site. You are interfering in areas that you don’t belong. And the Internet is far far more than video. It’s speech, it’s academia, it’s tons of things. So I’m not sure they’ve thought that through. There are ways that they can manage things. Other than that I hope.

Michael Geist: I think that’s a really important point. Both the the widespread use of video itself by a range of services that we wouldn’t think of as being broadcasters in any any real sense and the fact that the Internet is used for so much more than than just video. I mean it’s striking a lot of the conversation has been around the prospect of these taxes and what it means for internet affordability and the like. But I think you’re right to point out that we’re really talking about the prospect of pretty extensive regulation by the CRTC of almost any Internet based service that could conceivably even include podcasts like this one. And so I suppose it begs the question though is the CRTC even the right venue for this kind of discussion and debate or is that something that’s better left to Parliament to sort through.

Peter Menzies: Well it’s absolutely left to Parliament. The last I heard the government of Canada was strongly defending the notion of net neutrality which I think is terrific.

Navdeep Bains: Let me be clear our government stands to support net neutrality. Mr Speaker we support an open Internet. We support the CRTC framework for net neutrality. Mr Speaker because we know an open Internet is critical for our economy and our democracy.

Peter Menzies: It’s a notion that should be defended. I mean it’s it’s a hill worth dying on and in a sense like in the sense like that because once you start messing with that you you begin to define the Internet as if it was cable and there’s there’s a real trend that you can pick up in the discussions. It comes from within the industry. It comes from within the CRTC that this whole internet fad you know it’s just kind of like it’s just the new cable right.

Peter Menzies: And it’s not. People should have no business. I mean it’s not that it should be the Wild West. The internet should be governed like the rest of the public square is governed. I mean there are hate speech laws, there are libel laws, there are defamation laws, there’s there’s all kinds of laws, there’s sexual exploitation laws, all the laws of the land should apply to the Internet. It should not be. It doesn’t have to be a wild west zone. But when it comes to regulation through regulators such as the CRTC, its sole role should be ensuring that the content, that the role of net neutrality is respected and that and when it comes to providing fair competitor access and items like that that the public that matter to the public but most of the public doesn’t know that it matters to them.

Michael Geist: Do you have a thought as to why we’ve see the CRTC shift in this way and is it simply a matter that regulators are going to regulate. And as it feels it’s in a sense power to regulate over conventional broadcasters where it had that power largely through licensing and and a more closed system. And it feels that evaporates. It extends over to the internet although even as I ask the question I know that for a very long time the CRTC resisted doing exactly that.

Peter Menzies: I mean my sense of it right now is that it’s kind of local politics. Minister Joly was and so was the preceding CRTC chair in his last year was being attacked by the cultural lobby, a large part of which is based out of Montreal, that did not like the changes that had been made. That did not like the approach moving forward and felt more comfortable moving you know advancing the cause of you know I’m conscious of the fact that I’m know talking about a lot of people at risk of generalizing about a lot of people here.

Peter Menzies: But let me just try to say that that specific group because there’s other groups I could mention that specific group is for them it’s much easier to have the outside world changed them for their world to change. So the solution to them has always been just put a tax on Netflix and other streaming services and everything will be fine. It’ll be just like 1985. The revenue we might lose through lower cable subscriptions will be replaced by streaming subscriptions and we’re all good.

Peter Menzies: And you know they won. Minister Joly is no longer, unfortunately in my view, is no longer minister. And the harnessing change is the new approach.

Michael Geist: You know when you talk about the kind of targeting that takes place Netflix as you suggest is frequently the target in Canada and I think at least in recent memory there is no more infamous incident than when CBC president Catherine Tate spoke to an industry conference earlier this year calling Netflix a new empire.

Catherine Tait, CBC President: I was thinking about the British Empire and how if you were there and you were the viceroy of India you would feel that you were doing only good for the people of India or similarly if you were in French Africa you would think I’m educating them. I’m bringing up the bring their resources to the world and I am helping them. There was a time where cultural imperialism was absolutely accepted and in fact if yo were a history student you would be proud of the contribution that these great empire escape. I would say we are at the beginning of a new empire.

Michael Geist: The industry often has discussed Netflix really in the context or with the vision of being a threat talking about an uneven playing field with the notion that benefit that Netflix benefits from an unregulated, untaxed service unlike some of its Canadian counterparts. Although I think there’s arguments that the level playing field issues often times swing the other way there’s all sorts of benefits that the regulated sector has that Netflix doesn’t. But it’s pretty clear that it’s a framing that has certainly caught the attention of policymakers and now it would seem the CRTC. Any thoughts on what if anything the regulatory world should look like for some of these online streaming services?

Peter Menzies: Well I mean obviously they should be collecting sales tax and contributing to the Treasury’s in that manner and in fact in Saskatchewan they are collecting the PSAT now so it obviously can be done they should be contributing to society just the just the way all businesses should be.

Peter Menzies: In terms of how they should be can. And I think that contribution is fine because in my perfect world you would actually attach cultural funding from these vehicles and it would come from general revenue and that would remove the risk of the telecom world being distorted by the broadcasting world abroad where you need cultural funding it could be provided straight through the federal Treasury rather than through whatever we want to call them taxes or fees on distribution platforms. There are a group of people and I met with some when one of my in my last year at the CRTC of producers who actually were encouraging us to continue to do nothing about Netflix because in their view Netflix was providing a lot of money was investing heavily in their industry in Canada.

Peter Menzies: They liked that and they didn’t want that to be chased away for them. That was a great advantage. It provided an additional path to for their production. I met a young fellow producer also in my last year who when we talked about the new rules just sort of shrugged and said Hey when we saw them we just called the staff in and said Okay guys things have changed and we have a new.

Peter Menzies: We have a new foundation and we can’t sell it to Netflix. We don’t make it. So it changed changed everything in that regard.

Peter Menzies: So there is a there are people who want to move out into the world and take advantage of a bigger world and you can do that through streaming platforms such as Netflix and others and let’s face it there’s there’s going to be a lot more. And I’m curious to know why. I don’t quite understand why Canadians haven’t sort of taken that bull by the horns and run with it a bit more.

Michael Geist: Yeah well perhaps it does come back to your one of your very early points in this conversation about walls and the notion of a challenge in competing with a streaming service that sees itself as a global player that now quite literally has content that people really want to access and view from around the world as opposed to a country where so much of the approach has long been defined by being limited within the national borders. You state it’s up to just a moment ago that that I want to drill down on for just a moment. That was to suggest that the right way to fund Cancon or cultural priorities ought not to be the kind of subsidy model that we’ve had for many many years especially through conventional broadcast but rather through general revenues. Can you can you expand a bit on on how you see this taking place in a sense. I think it’s suggesting that we are it’s not that we ought to extend these kinds of mandated contributions or taxes to Netflix and other streaming services. It’s that we ought to get out of the business altogether of using these kinds of fees as the way that we try to fund this kind of Canadian content.

Peter Menzies: Once you attach them to the cultural side they begin and you can see this and the risk and the Harnessing Change report you begin to define them as cultural carriers rather than just carriers and agnostic. And if you see them as cultural entities then you end up messing with them. And it perverts that that all those all those principles around net neutrality and that sort of stuff. So it’s a lot easier to get rid of that risk too and it wouldn’t just mitigate it. You would eliminate that risk by creating funding just funding directly from the federal treasury. And that’s entirely possible in the grand scheme of things. The sums are not insignificant but they’re not overwhelming cultural funding when it compares to other areas is it is a fairly modest. So that’s the that’s the view I take on that.

Michael Geist: So that’s certainly one alternative and we do see more and more people arguing that if the current system is diminishing in importance given the decreasing revenues for broadcasters obviously we’re seeing more money come in from foreign unregulated players but perhaps it’s time to rethink the system as a whole. And of course that’s part of what’s taking place with the launch of the broadcast and telecommunications legislative review panel the panel that was also sort of coming out came out of Minister Joly and Minister Bains talking about the prospect of a rethink of Canadian broadcast and telecommunications laws a preliminary report is expected in June the final one in early 2020. It holds the prospect of a real overhaul or at least recommendations of an overhaul on broadcast and telecom. If you were on the panel or perhaps asked to provide it with some advice what would you say?

Peter Menzies: Well I would say we would happen to move into some of those areas and I would think that we need to be more progressive in our approach. I mean I find the current approach of this to go back to something you said.

When we talk about the system I think there’s risk in these discussions of believing that the system is the industry that the system and the industry kind of you know are all one in terms of that and I’m not ignorant of the fact that they’re very closely tied but there is a world outside this walled garden that has so much opportunity into it. You know like you can spend your time being afraid that you will lose half of your market of 25 million Anglophone Canadians to foreign invaders or you can spend your time thinking about how you could maybe grab 10 percent of a market of 800 million people. I mean there are hundred and twenty five million anglophones in India right. If you can talk to producers of content aimed at at at the Indian market and people in the Indian diaspora and you know that’s the way people get it why would I aim. You know why would I ignore that market right. It makes no sense to me whatsoever that you would have an approach that continues to be defend this small market within which nobody will ever get super rich. I get that but that we should be going out into the world and and exploring those opportunities. So that would be the broad philosophy upon which I would like. I would encourage people to look at things because otherwise we just become walled in small and we become little Canadians. And I would like us to be big Canadians.

Michael Geist: Peter thanks so much for joining me on the podcast.

Peter Menzies: Thank you Michael it’s been a pleasure and the privilege

Michael Geist: The Government’s expert panel broadcast and telecommunications legislative review panel is expected to release an interim report in late June. Its final report and recommendations are due in January 2020.

Michael Geist: That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s L.A. W B Y TE S at P.O. Box dot com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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