Tuesday, June 9, 2009

A regulator gets it right

I could not normally think of anything more mind-numbing than reading through the proceedings of the Canadian Radio Television Commission (CRTC). This is the arms-length federal agency that sets the rules and controls the licensing of radio stations and television networks. The convergence of radio and television programming over the Internet has now raised the matter of whether this agency should exercise the same measures of control over Internet content as it does over radio and television content. It is studying the matter.

Let us hope it does not decide to take on the Internet.

One of the CRTC commissioners, a lawyer named Tim Denton, wrote a thought-provoking piece about the broadcasting control set up. If you want to read the whole thing, which is worth the read, go to this site and scroll way down near the bottom of the page where his name appears. What I have copied below is an extract of the part where he discusses the issue in terms of its impact on free speech.

The issue as I conceive it is the freedom to speak across the Internet through full-motion video, music, or recorded speech, without the threat of government licensing. It is a more fundamental concern than what happens to the protections and economic models of Canadian broadcasters and the other interests vested within broadcasting policy. It is the right to speak freely – albeit through modern technology – which is challenged every time the Commission looks at its new media exemption orders.

The boundary between what is "broadcasting" and what is not is defined by the predominance of written text.13 If written text predominates, it is not likely to be considered "broadcasting". If it is predominantly full-motion video, or sound, it will be considered "broadcasting" unless the Courts clarify otherwise or Parliament changes the Act. Increasingly, as bandwidth available to Canadians increases, communication among individuals will be conducted in full-motion video, and thus be subject to state licensing of the speakers. Some may welcome this development. I and a great many others do not.

The history of the regulation of speech in this country does not engender confidence that such powers will be used wisely. Canada has experienced several instances in recent times where regulatory commissions of another type and armed with a different mission have challenged the right to say controversial things. The struggles of Ezra Levant,14 Mark Steyn15and others have served as important warnings that regulatory authorities charged with combating racism, hatred, and other evils have consistently expanded their mandates, have abused their powers and eroded fundamental liberties. Wherever there is official orthodoxy, disagreement is heresy, and where there is heresy, there is usually an inquisition to root it out. After centuries ridding ourselves of thought control agencies, 20th century Canada re-invented them.

The Commission’s authority over licensees is enormous and consistently supported by the Courts. Its authority has been exercised in a much more visible and transparent way than by human rights commissions, in a manner consistent with the rules of fundamental justice. Its decisions have been confirmed or corrected by the Courts and the federal Cabinet. The Commission has no plans for the regulation of Internet speech, it needs to be said. However, part of its licensing and regulatory authority deals with the boundaries of expression, and to this subject we turn.

The regulation of speech by this Commission takes place both by it acting directly and by instituting a regulatory regime where speech controls are exercised indirectly. The Canadian Broadcast Standards Council (CBSC) is a case in point. The CBSC describes itself as follows:

The CBSC is a creature of the private broadcasters and plays an intermediate role in the regulatory process. With the support of the Canadian Association of Broadcasters (CAB) and the approval of the Canadian Radio-television and Telecommunications Commission (CRTC), but without the heavy club or formalities of government sanctions, the Council promotes self-regulation in programming matters by Canada’s private sector broadcasters.

The CBSC would not exist, in my opinion, unless the broadcasting industry was regulated. Self-regulation of this type is only necessary when it staves off more onerous regulation. Recently an Ottawa talk show host was reprimanded by the CBSC for discussing Islam in what the CBSC considered to be contemptuous terms. The CBSC conducts detailed and careful examinations of complaints against broadcasters.

In some other cases, speech controls are exercised directly by the revocation or non-renewal of broadcasting licences. Such a non-renewal occurred in the case of a Qu├ębec radio station whose talk show host was conspicuously offensive. In the case of a particular religious channel, the Commission directly governs the composition of the Board of Directors of the licensee by condition of licence.

Overt regulation is only the outer edge of the problem. So extensive are the Commission’s powers over broadcasters that it is easy to conceive regulation of speech by a wink and a nudge, by back channels, and by the very terms of the exemption order itself. It is entirely conceivable that such an exemption order could incorporate by reference the standards (or lack of them) agreeable to the Canadian Human Rights Commission, or any other speech-controlling body.

In other words your right to communicate across the Internet could be revoked by administrative fiat for failure to comply with a speech code devised by parties other than the CRTC, if the Commission so established. Nor is it difficult to imagine a state of affairs where "broadcasters" across the Internet could be subject to some of the existing regulations, for instance, those concerned with linguistic, religious or political balance that apply to those who use "scarce" public airwaves. Imagine Pat Condell,20 the acerbic British atheist, having to "balance" his views about religion and religions if he were subject to Canadian broadcasting regulation, for example.

Much more important values are engaged by free speech than by preservation of an industrial policy for broadcasting, which is the aim of the Act. History shows that schemes of regulation – and censorship – have a tendency to expand, notwithstanding the decision the Commission has wisely made here.

Both the political left and the right, indeed, everyone with blogging software, have found themselves able to express viewpoints via the Internet which for one reason or another are kept out of the mainstream media. In turn, the Internet has had decisive effects in shifting power from institutions to individuals, and in allowing people to self-organize.

However, if the Canadian portion of the Internet could be placed under the Act, and speech involving video, or sound, became a licensed activity, we would have reversed several centuries of constitutional evolution and gone back to the days prior to 1688 21 of licensed printing presses or, in our case, licensed video telephone transmissions as well as licensed computer users. Several important political revolutions have been fought to ensure freedom of the press and speech; it would be repugnant to nibble away at it in defence of anything as comparatively unimportant as Canadian broadcasting policy. Yet such a possibility does not lack for advocates.

With no change of the statutory language since the Act was passed in 1991, its reach has exploded. Since the latest version of the Act was devised, in the years 1986-87, and 2009, when this hearing took place, 22 years have passed. In that time there have been more than 14 doublings of the power of computers and equivalent reductions in cost, or roughly more than 16,000 increases. The price performance of computer memory has increased at the same pace. What this means is that the video on a mobile telephone held by any citizen may be uploaded through the Internet and reach millions of people, without passing through any "broadcaster" – as the term is commonly understood.

Yet we are confidently presented with the view that the Act says this is a licensable activity – one subject to prior permission of the state. Clearly there is a contradiction between an Act designed for a certain era, when communicating through technical systems was extremely expensive and rare, and the one we are in now. The Commission has to take this reality into account, yet the Act would have us ignore it.

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