Deloitte FCC Bulletin | Government attempts to overhaul Canadian internet legislation

FCC Bulletin: Government attempts to overhaul Canadian internet legislation

The federal Liberal minority government has been governing with the support of the federal NDP, thanks to a supply and confidence motion securing their support on a range of issues. Over the last few months, four major bills were introduced in Parliament that tackle internet issues ranging from consumer privacy to cybersecurity. The proposed changes are significant. In this #FCCBulletin, the FCC breaks down recent developments and what to expect for a busy legislative agenda in the fall.

Bill C-11: In February 2022, the government introduced Bill C-11 The Online Streaming Act, which would update the Broadcasting Act to require streaming platforms like Netflix to follow Canadian content rules and tackle online harms (the Act was first proposed as Bill C-10 in 2021, but it died on the order paper when the Senate adjourned). While the government attempted to address the critiques of the earlier Bill C-10 received, Bill C-11 has continued to receive widespread criticism centering on excess scope and censorship, as well as ambiguity about what constitutes ‘Canadian content’. Under the proposed Bill, the Canadian Radio-Television and Telecommunications Commission (CRTC) would be empowered to regulate social media content by requiring media platforms to make certain content more accessible. Critics of the bill have highlighted that there is a risk of social media posts by individuals unintentionally falling under the purview of this legislation without an individual privacy clause. Before the adjournment of Parliament for the summer, the government pushed to fast track the bill, forcing MPs to rush over 150 amendments. The Senate has since stated that it will not speed up its review of the bill and will not vote on the bill until after the summer recess, aiming to vote by November 18.

Bill C-18: Bill C-18 The Online News Act was introduced in April 2022 and made its way to committee before Parliament rose for the summer. Bill C-18 aims to enhance fairness in the Canadian digital news marketplace by making social media platforms like Facebook pay a portion of the profit they earn from news to Canadian news organizations that create the content. If the bill becomes law, platforms and news outlets would have six months to make a deal with news organizations or apply to the CRTC for an exemption. Canada is not the first country to attempt such legislation. Australia successfully passed a similar law by allowing tech giants to directly negotiate fees with local news organizations. In Spain, similar legislation prohibited Google News from negotiating with media platforms directly and as a result it shut down its services from 2014 to 2022. Bill C-18 would enable social media platforms to negotiate directly with news media outlets rather than pay a set fee.

Bill C-26: Bill C-26 An Act Respecting Cybersecurity (ARCS), introduced in June 2022, would create two major changes in Canadian cybersecurity laws. First, the Bill would amend the Telecommunications Act to include security as a policy objective. This would give the government the power to order any actions necessary to protect Canadian telecommunication networks. Second, the Bill would enact a new Critical Systems Protection Act (CCSPA) which would create a regulatory framework that would require Canadian businesses and organizations in priority industries (telecommunications, finance, transport and energy) to report cyberattacks. Designated operations in priority industries would also be required to create Cyber Security Programs (CSP) that outline risk mitigation and protection processes for their systems.

Bill C-27: The Digital Charter Implementation Act, which aims to safeguard Canadians’ privacy rights in the digital economy while continuing to leverage digital innovations, was also introduced in Parliament last month. The Charter Act introduces three separate Acts under its umbrella: the Consumer Privacy Protection Act, the Data Protection Tribunal Act, and the Artificial Intelligence and Data Act:

• The Consumer Act would replace Canada’s current main privacy legislation – the Personal Information Protection and Electronic Documents Act (PIPEDA) – which has been criticized for its consent regime and enforcement model.
• The Data Protection Tribunal Act would enact the creation of a new tribunal to enforce the Consumer Privacy Protection Act.
• The Artificial Intelligence and Data Act (AIDA) would strengthen Canadians’ trust in artificial intelligence by requiring operators of “high impact” AI systems to standardize management of anonymized data, conduct impact assessments, develop risk mitigation strategies, maintain transparency of AI systems, and inform users in cases of “material harm”. The inclusion of AIDA is a major change from the Government’s 2020 version of the Charter Act, which died on the order paper.

Also on the Canadian tech policy radar:

• In the Senate, Bill S-7 An Act to amend the Customs Act and the Preclearance Act, 2016 – which would allow border security to search through personal electronic devices – passed third reading and is set to be returned to Parliament in the fall.
• The government continues to work on a new version of an online harms bill – a revival of the failed Bill C-36. New measures that would require social media companies to address harmful content (e.g., hate speech) on their platforms within 24 hours of being identified or face fines of up to $25 million, continue to face harsh backlash from tech companies and will undergo further consultations.

With Parliament in recess for the summer, the Liberals’ bundle of internet/technology regulation reforms will be put on hold, subject to further scrutiny in the fall. Technology policy wasn’t the only priority item on the government’s legislative to-do list over the past few months – stay tuned for another FCC bulletin next week covering other legislative developments.

Share this learning activity with others