Should User-Generated Content (UGC) be Exempt from Law and Regulation? Should Internet Platforms Bear any Responsibility for UGC they Distribute?

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Should user-generated content (UGC) on social media platforms be free from any regulation and the rule of law, simply because it is user-generated? Should social media platforms be given a pass when it comes to any responsibility for the UGC that they distribute? That seems to be the message from those busy attacking Canadian Heritage Minister Steven Guilbeault for proposing legislative amendments to broadcasting regulation (Bill C-10), and for promising future legislation that will require the platforms to control “online harms”, another form of UGC. Bill C-10 (in its current form) would subject the platforms that host UGC (Youtube–owned by Google–being the prime example) to some regulation with respect to that content. The “online harms” legislation has yet to be introduced although Guilbeault has made clear it is coming this spring.  (Online harms refers to child sexual exploitation, hate speech, revenge porn and incitement to violence.) That Bill’s exact provisions remain to be determined.

Bill C-10

With respect to Bill C-10, the issue is whether the online platforms will be considered “broadcasters” when disseminating video content posted by users. If so, and if Guilbeault’s proposed legislation is enacted, that content would be subject to “discoverability” criteria established by Canada’s broadcast and telecommunications regulator, the CRTC (“the Commission”) to ensure that Canadian content is promoted. The legislation has run into a buzz-saw of opposition from various quarters and has quickly become politicized. Guilbeault has been accused of wanting to “censor” the internet.

Strangely, considering the focus of the criticism, the primary objective of the Bill is not to regulate user generated content. Rather, it is to bring online streaming services under the purview of the broadcasting regulator to ensure that Canadian content is promoted and made “discoverable”, among other obligations.

Should there be a UGC Carve-out?

The original version of the Bill included an explicit carve out for user-generated content in order to reassure consumers that they were not being targetted, but once review by Parliamentary Committee began it was quickly realized this would create a massive loophole that could be exploited by the social media platforms. They could have used the UGC exception to avoid obligations being imposed on other streaming services, such as Spotify for example, with respect to Canadian music. An amendment was therefore proposed dropping the explicit exclusion for UGC. This prompted critics to charge the government with interfering with free speech and dictating what Canadians can post on social media. This is total hyperbole and the critics from the main opposition party, the Conservatives, are surely aware of this, but politics is politics.

Intense Criticism

It has not helped that Guilbeault has struggled to explain clearly the intent of the legislation, which is targetted at the platforms, not consumers. Some of the criticisms have come close to becoming a personal vendetta, with Michael Geist of the University of Ottawa leading the charge, accusing Guilbeault of giving “disastrous” interviews that should lead to him being fired. Geist has been on a campaign for weeks to discredit the legislation, Guilbeault, and the government’s agenda to confront the web giants, publishing almost daily attacks on his blog. Geist is particularly unhappy that Guilbeault and the Heritage Ministry have been given the file to run with rather than the usually more Silicon Valley-friendly Ministry of Innovation, Science and Economic Development. In other words, the “culture” mavens seem have priority over the techies who guard “industry” interests.

What’s the Real Issue?

With regard to the policy intent of Bill C-10 (Amendments to the Broadcast Act), one can legitimately question whether Canadian content “discoverability” requirements are needed, or indeed whether streaming services should be treated as broadcasters. Even the whole question of Canadian content quotas can be debated. I, for one, remain to be convinced that enhanced discoverability requirements are needed to get Canadians to watch more Canadian content (Cancon). And then there is the question as to what constitutes Cancon, but that is another entire topic. But just to give one example of the arcane rules that govern Canadian content, a project produced by Netflix with a Canadian story, Canadian actors and Canadian writers will not qualify as Cancon if it is fully financed by Netflix. Why? Somehow, the money is not “Canadian” enough. Go figure. Since establishing its Canadian operation in 2017, Netflix has spent over $2.5 billion on production in Canada but much of that does not count toward content quotas. (An earlier blog I wrote on this topic, “Netflix in Canada: Let No Good Deed Go Unpunished explains how difficult it is for companies like Netflix to qualify.)

In my view, the answer to getting Canadians to watch more Cancon is to produce more good quality Canadian content. (Schitt’s Creek is a prime example of successful Canadian programming that does not need to be “discovered”). However, putting the Cancon question aside for a moment,the issue is now whether a level playing field will be established for all streaming services. If discoverability requirements are going to be applied to streaming services, then social media platforms should not be given a pass simply because they host user generated content.

Is UGC Sacrosanct?

There is nothing sacrosanct about UGC that puts it into a separate universe. For the most part, it should be left alone as it forms part of the free expression of society, but where and when it crosses the line of the law, or falls into an area subject to regulation, there is no reason why UGC should be treated differently from any other content. The killer of 51 people at two mosques in Christchurch , New Zealand, live-streamed the shootings on Facebook. That live-stream was 100% UGC. Some critics claim that subjecting UGC appearing on Youtube to CRTC oversight will impair free speech rights and would be contrary to the Canadian Charter of Rights and Freedoms. This, despite an opinion from the Department of Justice, backed up by testimony from the Minister of Justice (himself a distinguished legal scholar), explicitly dismissing claims that any provisions of the Bill would violate Charter freedoms.

Why Include Youtube?

Why extend the content discoverability requirements to Youtube? Because Youtube is a major distributor of music and video, and in fact acts as an online broadcaster—although the content is user-generated. (There are more than 35 million Youtube channels, most of them with an admittedly small following). According to a Ryerson University study (quoted in the Toronto Star), 160,000 Canadians post content on Youtube, with 40,000 of them earning revenue. Would subjecting this “broadcast content” to discoverability requirements be an impairment of free speech rights? Why would it be? Nothing is censored, nothing is “taken down” or “buried”. Users are free to post what they wish. Indeed, that is part of the problem. Sometimes what they post is illegal, infringing or libellous.

The fact that content is user-generated is no reason to exempt it from regulation deemed to be in the public interest (although there may be different viewpoints as to what constitutes the public interest).  Where it falls within regulation, user-generated content—especially when done for commercial purposes such as ad-supported Youtube channels—should not have an unfair advantage over other forms of content.

Net Neutrality

Another argument against applying any regulation to the distribution of UGC is that CRTC oversight will undermine net neutrality. Vocal C-10 critic Michael Geist claims that Guilbeault’s bill shows the Canadian government has abandoned its support for this principle. This is an old canard regularly trotted out by opponents of any internet regulation. By Geist’s own admission, net neutrality requires ISPs to avoid practices that would unfairly give preference to certain content over others through discriminatory charges. In particular they are required to not favour content in which they have a financial interest over other content that may compete with it. Net neutrality is founded in the common carrier concept that emerged from the telegraph era when companies like Western Union prevented competing news services from using their telegraph system to file competing news stories. The principle is the same today. But net neutrality has never meant that there should be no regulation of internet content. The best example of the need for regulation is the question of “online harms”, the next Guilbeault shoe set to drop.

Expected “Online Harms” Legislation

Right now, Bill C-10 is the target of the critics, but I am sure that when the “online harms” legislation is tabled (shortly), we will hear the same complaints about how it interferes with freedom of expression on the internet. This raises yet again the fundamental question as to whether government has any role in regulating what appears on social media. The answer, surely, must be yes—subject to the normal protections regarding freedom of expression. In Canada this is done through the Charter of Rights and Freedoms. Section 2(b) of the Charter protects, “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. But that is subject to limitations. The Canadian government’s explanation of the Charter says, right up front with respect to the freedoms that it guarantees, “The rights and freedoms in the Charter are not absolute. They can be limited to protect other rights or important national values. For example, freedom of expression may be limited by laws against hate propaganda or child pornography.”

That is apparently what the online harms legislation will do. Michael Geist doesn’t like that legislation either. In an opinion piece in Macleans (once described as Canada’s national news magazine), Dr. Geist attacked the online harms legislation because it will likely include a mechanism to block illegal content hosted by websites outside Canada that are beyond the reach of Canadian law. According to him, this would “dispense with net neutrality”. If net neutrality means protecting the rights of offshore websites to disseminate hate speech, material that sexually exploits children and incites violence and terrorism, most of it UGC by the way, then net neutrality is not worth protecting. But of course, this has nothing to do with the meaning of net neutrality. Net neutrality as a huge umbrella protecting everything on the internet exists only in the minds of the cyber-libertarian claque. 

An “Internet Firewall”?

Disabling access by consumers to illegal content hosted offshore is not some Orwellian plot. It is a reasonable application of the law to rogue sites that thumb their nose at national legislation because they are hosted somewhere in cyberspace. Opponents of any form of site-blocking claim that it creates an “internet firewall”, with obvious comparisons to the “Great Firewall of China”. What China is doing to limit access to online content by Chinese citizens parallels other censorship and behaviour control measures instituted by the authorities in China. But China is China. Canada is Canada. To equate targetted blocking of content that is illegal under the Canadian criminal code with the kind of thought control techniques exercised by the Communist Party in China is fanciful. Another potential use for targetted site-blocking, subject to all the requirements of due process—application, hearing, appeal, etc.—is to disable access by consumers to offshore sites hosting illegal, pirated, copyright infringing content. See my recent blog “Site-blocking for “Online Harms” is Coming to Canada: Similar Measures to fight Copyright Infringement Should Follow”.

Expeditious Takedown

In the same op-ed, Prof. Geist also objects to the fact that platforms will likely be required to takedown illegal content within 24 hours. This is similar to Australian legislation passed after the Christchurch killings that requires platforms to “expeditiously” take down “abhorrent violent material” when notified to do so. Geist claims this approach substitutes speed for due process. But sometimes speed is precisely what is needed when the harm is so egregious that action must be taken immediately. One would expect the platforms to exercise their own oversight in such cases, but experience has shown that they often will not act unless required to do so.

Holding Big Tech Accountable

At the end of the day, the key question comes down to whether UGC has some special place as a form of speech that cannot be regulated or subjected to lawful oversight, and to what extent the social media platforms that host and thrive on UGC should bear any responsibility for the content they allow to be posted. For all too long, the platforms have hidden behind the pretence that they are just neutral “bulletin boards” with no responsibility to vet what goes up on those boards. They employ terms such as “net neutrality” and “freedom of speech” to duck any responsibility for offensive and illegal content that they are happy to monetize—and on occasion even encourage. Some of this is copyright infringing content, which is why I am writing about UGC on this copyright blog. By sprinkling magic dust on UGC to make it “different”, the big tech platforms have tried to duck their share of responsibility for allowing and exploiting infringing content, shifting all the burden to the users which they enable.

One thing is certain. Change is coming. Platforms are being increasingly held to account for the content they carry, in Australia, the EU and in Canada.  In the US, serious reconsideration of Section 230 of the 1996 Consumer Decency Act, the “get out of jail free” card that the internet platforms have used for years to avoid any responsibility for online content that they host and distribute, is coming under serious scrutiny. Those opposed to any change in the status quo are fighting a furious rear-guard action, invoking hallowed and sacrosanct concepts such as free expression (the First Amendment in the US, the Charter in Canada), net neutrality, lack of due process, and so on, all in a vain attempt to avoid any restrictions on big tech and to hold it more accountable.

Conclusion: UGC Must Comply with Laws and Regulation

I cannot predict at this stage what the final shape of Bill C-10 will look like, or whether Steven Guilbeault will be able to withstand the furious attacks by opponents seeking to strip user-generated content (UGC) out of the legislation. As for the online harms legislation, we will have to wait to see how it deals with harmful and illegal content on the internet, much of it generated by users. If it requires platforms to expeditiously take down harmful material, that will be a good thing. If it provides a mechanism to prevent consumers from accessing purveyors of illegal content who avoid Canadian law by locating their servers offshore, that would also be a good outcome.

With regard to C-10, although you can question the necessity for bringing streaming services under the broadcasting regulator and applying Canadian content and discoverability requirements to them, if that is the policy direction, then there is no reason to give Youtube a pass simply because it commercializes user-generated content. Laws and regulation must apply to UGC, subject to constitutional limitations, just as they do to other forms of content. To act otherwise creates a massive loophole that undermines policy delivery, is unfair to other content services, and tilts the playing field by impeding fair market competition.

© Hugh Stephens 2021. All Rights Reserved.

Using Copyrighted Broadcast Content without Authorization to Produce Political Attack Ads: “All’s Fair” Rules the Federal Court in Canada

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Using Copyrighted Broadcast Content without Authorization to Produce Political Attack Ads: “All’s Fair” Rules the Federal Court in Canada

We all know that politics is a blood sport. If you can discredit your opponent by casting doubt on their integrity, intelligence, judgment or whatever, this is perceived to bring political gain. As much as many Canadians bemoan the introduction of “US-style” negative campaign ads, they have become a feature of political campaigns in many countries. Political strategists must think they work or else they would not see such frequent use. In Canada, the Conservative Party are masters of the “attack ad”, although they certainly do not have exclusive rights to the technique. In 2011 they attacked Liberal leader Michael Ignatieff as “just visiting”, because of the more than 30 years he had spent abroad as a journalist and academic. They won that election. In 2015, Justin Trudeau was the target with the slogan “just not ready”, alluding to Trudeau’s supposed lack of political experience. The fact that Trudeau’s Liberals thrashed the Conservatives in that election begs the question of what impact the slogan had.

To develop attack ads you need material, and what better material than footage of the candidates themselves, engaging in contradictions, waffling or putting their foot in their mouth. And if they aren’t clumsy enough, there is always selective editing, juxtaposing earlier statements against ones made later, all bundled together with provocative voice-overs and music. And what better place to access this material than to pull it off the airwaves, from debates, political panels or news shows. However, most of this material is protected by copyright, and its use for partisan political ads is the nub of the issue.

The Conservative Party of Canada (CPC) has made no secret of its desire to use clips culled from broadcasts to assemble into political ads. In 2014, when still in power as the government of the day, the Conservatives proposed to introduce an amendment to the Copyright Act to provide an exception to copyright exclusivity for the narrowly targetted purpose of using copyright protected material in a political campaign by candidates and parties. It was going to be buried in a much larger omnibus budget bill but after the proposal was “outed” and drew criticism, it was quietly dropped.

The proposed amendment to the Act was criticized from several perspectives. Apart from comments by the Liberals that it showed how “underhanded” the Conservatives were, another objection was that if fair dealing exceptions were to be broadened to allow use of news clips for criticism, this should be applied widely and not just limited to political operatives. Others argued that an amendment to the Act was not necessary because use of copyrighted material in a political campaign would likely already be permitted by existing fair dealing exceptions, such as news reporting, criticism, parody or satire. In the 2019 election the Conservatives put that assumption to the test by using a series of clips from the CBC and other broadcasters in attack ads against Justin Trudeau, which they posted on Facebook. The CBC requested that they be taken down. Even though the Party obliged, the CBC sued, seeking an acknowledgement from the Conservatives that the Party had engaged in the unauthorized use of copyrighted material.

The CBC wasn’t seeking damages and it dropped a request for an injunction after the Conservative Party complied with the request to take down the ads that used CBC footage. Rather, it was trying to establish the principle that use of its footage by a political party in an election campaign undermined its status as a neutral national broadcaster. The clips were clearly from the CBC. Some of them bore the CBC logo, a factor used by the Respondents to support their claim that the “criticism or review” fair dealing exception applied in this case. (To invoke this exception, the material has to be attributed to the original source). Others featured well-known CBC presenters and journalists.

The CBC’s dilemma is similar to the one faced by the BBC in the 2019 “Brexit” election. The Conservative Party in the UK used BBC footage to put together anti-Brexit ads that appeared on Facebook. The BBC filed an objection with Facebook over unauthorized use of its copyright-protected material, and Facebook took down the ad. Although the UK Conservative Party wasn’t happy, that was the end of the matter. In Canada, the CBC decided to go one step further by seeking to obtain a court ruling confirming that such use is an infringement of copyright, knowing that the Canadian Conservative Party would use the tactic again. That decision has just (May 13) been rendered by the Federal Court. The CBC lost.

The decision is an interesting one to read. As is usual in court cases, the Respondents presented several lines of argument in defending their position. Some of these were dismissed. The Court confirmed that not only was the material subject to copyright, but the Respondents taking of content was substantive, even though the clips themselves were just a very small part of each broadcast. The facts of news cannot be protected by copyright but the expression of those facts (i.e.  the comments of Justin Trudeau as broadcast by the CBC) are subject to copyright. As the Court noted, the broadcast incorporated “the artistic design, production services (lighting, camera work, audio, etc.) and journalistic decisions (i.e. the flow of discussions and the election and posing of questions) which are the skill and judgment of the CBC and their employees”, making it a creative work subject to protection. The use of that creative work was substantial. The judge also accepted the bona fides of the CBC’s complaint, noting that as a state-owned corporation it was reasonable for it to try to protect its image and reputation as being politically non-partisan. Yet the Court did not find adverse consequences for the CBC’s reputation from the use of its broadcast content in partisan attack ads, terming any adverse impact as “speculative”.

Having established that the material was copyrighted and the taking substantive, the Court then came to the nub of the issue; was the Conservative Party’s use of the material a fair dealing, thus providing an exception to copyright protection?  In ruling that the use was fair, the judge focused on the fair dealing exception of “criticism”. Unlike the fair use doctrine that applies in the US, for an unauthorized use of copyrighted materials to be considered a “fair dealing” in Canada (and in other countries with fair dealing laws), the use must fall within the four corners of the exceptions specified in legislation. Since 2012, in Canada these are research, private study, education, satire, parody, criticism, review or news reporting. A fair dealing must also meet other criteria that have been established through earlier Court rulings. These are the purpose, character, and amount of the dealing; the existence of alternatives, and the nature and effect of the dealing on the copyrighted work. The Court uses these criteria to determine whether, on balance, the dealing is fair even if it falls within the specified exceptions (an allowable purpose).

In finding an allowable purpose that would shoe-horn the Party’s use of the clips within the specified fair dealing exceptions in the Copyright Act, the Respondents cast a wide net, arguing that any or all of the following applied; criticism and review, satire and education. All but criticism were rejected by the Court but in finding that the use qualified as “criticism”, the judge took a liberal interpretation of the meaning of the term. CBC had argued that “criticism” applied only to critiques of the program itself (which is the genesis of the criticism and review exception, allowing theatre critics, for example, to reproduce or quote from parts of a play or movie in order to review or critique it).  However, the judge found that criticism encompasses not just the form of the content, but the ideas contained in it. In this case, the criticism included “the ideas and actions of the Prime Minister and the Liberal Party in the sense of fault finding.”

So there you have it. The CPC’s use of the CBC’s clips for political attack ads was not an infringement of copyright; rather, it was a fair dealing based on the specified purpose of criticism. That will clarify matters going forward and I can confidently predict that whenever the next election occurs, we will see lots of attack ads, with likely some of the material drawn from copyrighted broadcast content belonging to the CBC or other broadcasters.

The CBC could, of course, appeal, but I doubt that it will do so. First, as I noted in an earlier blog on this topic written right after the 2019 election, there is no love lost between the Conservative Party and the CBC. Many in the Party would like to privatize the CBC, if not do away with it altogether. Thus, it was a bold move for the Corporation to have directly confronted the Conservatives on this issue. Now that they have, and lost, they can maintain that they took all possible steps to protect their reputation for political neutrality. If their content is being used to produce political attack ads, there is nothing further that they can do to stop the practice.

The ruling also shows how legal interpretations can adapt to changing social expectations. Use of copyrighted broadcast material in attack ads has become relatively commonplace. To limit the free-for-all of political debate on the basis of a strict interpretation of copyright law would likely not serve the broader purposes of copyright protection. As the Court concluded;

There may be situations in the future where the manner of use and distribution of CBC material may adversely affect the CBC – however, that is not the case here. Fear and speculation cannot ground a finding of unfairness in this factor.”

Case dismissed.

© Hugh Stephens, 2021. All Rights Reserved.

Blocking Offshore Pirate Content Sites: The Philippines is Joining a Growing International Consensus

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In the ongoing struggle against content piracy, a global scourge that undermines and competes unfairly with legitimate content producers and distributors, blocking offshore web and streaming sites that distribute pirated content has proven to be an effective tool in many countries. It provides a remedy to deal with scofflaws that cannot be reached by domestic laws or regulation. Now the Philippines, an important market for domestic and international content, is about to join a growing international consensus by implementing its own site blocking regime.

It was announced in mid-April that the major ISPs in  the nation of over 100 million, the Intellectual Property Office of the Philippines (IPOPHL) and the National Telecommunications Commission (NTC), the telecom sector regulator, have agreed on a Memorandum of Understanding (MOU) that will institute a fast, efficient and effective site blocking regime. The targeted site blocking process has arobust framework that  will guide IPOPHL’s consideration in determining what constitutes flagrant infringement and ensure that only egregious piracy websites are blocked. Upon receipt of a rights holder’s referral and supporting documentation, IPOPHL will conduct a further investigation to confirm that an identified site is indeed distributing infringing material before referring the case to the NTC for issuance of a blocking order. ISPs have agreed to comply with these orders.

The Philippines has a vibrant domestic film and television industry but also one of the highest rates of piracy in Asia. In a YouGov survey dated September 2020, 49 percent of Philippine respondents admitted to accessing piracy streaming sites, with the total being over 50 percent in the 25 to 34 year age bracket. Almost half of these consumers indicated that, after accessing pirated content, they had cancelled subscriptions to local and international content services, an estimated annual loss of $120 million to the legitimate subscription OTT video industry alone, according to Media Partners Asia. This situation is in marked contrast to the situation in neighbouring Southeast Asian countries, such as Indonesia and Malaysia, where site blocking measures instituted over the past couple of years have helped to reduce significantly what previously were similar levels of consumption of pirated content by local consumers and migrated many of those consumers to legal services. 

What has brought about this change in the Philippines? It is a combination of alignment of the interests of the key players, combined with strong local leadership and some external assistance, prompted by a realization that consistently high levels of piracy serve no-one’s interests. The lesson from last year’s Metro Manila Film Festival (MMFF) no doubt played a role as a catalyst. The Festival has been highlighting the best of Filipino talent since the 1970s. In 2020, because of COVID-19, it went virtual. COVID had already forced many theatres to close, thus leading to a surge in consumption of streaming content. Last year the MMFF tried to offset the loss of box office revenue through Video-on-Demand streaming but the result was a disaster. Because of widespread piracy, receipts totalled less than two percent of 2019 revenues. The Manila Times reported that;

MMFF 2020 Best Picture “Fan Girl” executive producer Quark Henares revealed that his team closely monitored illegal online streaming and found 10 to 20 pirated links every hour.”

Often the enemy of introducing new measures to fight piracy is inertia and bureaucratic process, sometimes combined with misguided arguments that any attempt to deal with pirated content through blocking orders amounts to “internet censorship”. While the experience of the MMFF may or may not have been the spark that lit the fire, the leadership of key local players in the Philippines to address the serious piracy issues was critical. Among these is Globe Telecom, the largest telecom company in the country and a major distributor of online content. Several years ago, Globe launched a public awareness campaign against piracy and illicit content on the internet called “#Play it Right”. The objectives of Globe’s campaign are to combat illicit content on its networks, including pirated content and online child exploitation, and to protect its customers from malware, ID theft and ransomware, often by-products that come with accessing pirate sites.

AVIA, the regional video industry association based in Hong Kong and Singapore, has also played a constructive role. AVIA has signed a separate MOU with the Philippines Intellectual Property Office (IPOPHL) to support the initiative and will be active in providing the Office with information on egregious piracy sites. AVIA has also worked on site blocking mechanisms with authorities in other Southeast Asian countries and has useful experience to share. The mechanism envisaged for the Philippines is an administrative process, with the major ISPs (Globe Telecom Inc., Smart Communications Inc., PLDT Inc., Sky Cable Corp., Converge ICT Solutions Inc. and DITO Telecommunity Corp.) participating voluntarily. IPOPHL under its proactive Director-General Rowel Barba–former Undersecretary at the Department of Trade and Industry—has played the lead role in formulating the site blocking mechanism.

Administrative site blocking regimes have been instituted in a number of places, including Malaysia, Indonesia, Korea, and some European countries while other countries (e.g. Australia, France) have required specific legislation to enable blocking. In yet others blocking orders have been issued by the courts applying existing legislation (UK, Canada). While the immediate priority in the Philippines is to put the MOU into action, a parallel legislative initiative is also underway in the Philippine Congress and Senate. Legislation, however, takes time and is subject to many pressures and uncertainties such as election cycles and legislative agenda in terms of eventual outcome, in the Philippines as elsewhere. In the meantime, the MOU between the ISPs, IPOPHL and the National Telecommunications Commission offers a widely supported way forward to deal effectively with the issue now.

The piracy situation in the Philippines needs urgent action, a situation recognized by all the stakeholders. The first blocking orders should be issued soon and then the Philippines will join the more than fifty countries world-wide that have adopted site blocking mechanisms in one form or another. Philippine creators, cultural industries content distributors and consumers will all benefit from this long-overdue step.

© Hugh Stephens 2021.

Site-blocking for “Online Harms” is Coming to Canada: Similar Measures to fight Copyright Infringement Should Follow

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Heritage Minister Steven Guilbeault is steaming full speed ahead with his strategy to get his arms around large internet platforms that deliver, or facilitate the delivery of, content to Canadians. The strategy has three prongs; (a) bringing digital streaming content providers under the oversight of Canada’s broadcast regulator, the CRTC, (b) requiring major social media platforms and search engines to compensate Canadian news providers when their news content appears on those platforms (similar to what has happened recently in Australia) and (c) establishing a regime to regulate “online harms” disseminated on social media. This regime will hold social media companies responsible for illegal content on their platforms if not removed expeditiously as soon as they become aware of it, and will require Canadian ISPs to block offshore websites and streaming services that disseminate illegal content to Canadians over the internet. These online harms proposals respond to public demands to deal with illegal online content related to sexual exploitation of children, hate speech and other harms, but similar principles could be applied to another form of online illegality that also harms the public, copyright infringement by offshore pirate sites.

No legislation has yet been introduced to implement blocking of sites disseminating harmful content although there have been plenty of signals that it is coming soon. It is reported that it will cover five categories of illegal content; hate speech, promotion of terrorism, child pornography, content that incites violence, and revenge porn (sharing of non-consensual images). A regulator will be established to assess and enforce compliance with the new regulations. Enforcement will possibly be done through a court order that, in the case of websites located offshore beyond the reach of Canadian law, would require Canadian ISPs to block content falling into the prohibited categories. Predictably there has been an outcry from the “usual suspects”, civil liberties groups, and “internet freedom” advocates who will argue that “net neutrality” requires that ISPs treat all content on the internet equally. (But net neutrality covers only lawful content.)  

There are concerns, some no doubt legitimate, that the new regulator could over-block in isolated instances, but it is expected there will be a transparent mechanism for appeal. This is essential as some online harms are easier to identify than others. No one is going to stand up and argue that child pornography should be available on the internet, but opponents of site blocking will argue that advocates for restrictions are using the fight against child sexual exploitation to open the door to broader “government censorship”. Questions will be raised about how to define terrorism, hate speech and inciting violence, but according to one legal website, “The new legislation is not set to expand on what is illegal, but is designed to address what is already illegal”. In other works, what is already illegal offline should be illegal online. The logic is irrefutable. That said, a more precise definition of “hate speech” may be required. When it comes to issues like hate speech, incitement to violence and even terrorism, there are potential grey areas, as the (in)famous adage that “one man’s terrorist is another man’s freedom fighter” so aptly illustrates. There is little doubt there will be some controversy and debate as all this gets sorted out. However, the main objective of getting racist, hateful, violence inciting, dangerous and otherwise illegal content taken down quickly or disabled is hard to argue with.

Quite apart from targeting offshore websites squatting in cyberspace beyond the reach of the Canadian courts, the legislation will ensure that social media platforms take greater responsibility for the content they disseminate. The “free pass” that major internet platforms have enjoyed to date (in the US through Section 230 of the Communications Decency Act of 1996) is coming to an end. Greater accountability is being propelled by the misuse of the platforms by some users combined with an unwillingness of the platforms to exercise control. With respect to offshore websites, blocking them at the (electronic) border is just about the only practical way to regulate what they disseminate.

These measures are all about illegal content and the application of existing criminal law in the online space.  They do not deal with copyright infringing content, but the same principles apply to impeding distribution of pirated content as they do for online harms.  The likely establishment of a new regulatory agency to implement offshore site blocking to restrict certain types of harmful content offers an interesting parallel for copyright holders. Canadian content stakeholders have already tried once, unsuccessfully, to initiate a regime for blocking offshore websites offering pirated content. They may be more successful this time.

That earlier effort, launched in early 2018, was called the FairPlay Canada coalition. It brought together  several major unions, the public broadcaster (CBC), five of the six largest national telecommunications providers, specialized TV providers, a major sports entertainment company, the country’s largest film festival, several major cinema exhibition chains, independent cinema operators, independent film producers and a combination of English-language, French-language and ethnic media, all with the goal of petitioning the CRTC to allow the establishment of an Independent Piracy Review Agency to adjudicate complaints of unauthorized distribution by offshore websites of content owned or licensed by Canadian rights-holders. If a complaint was authenticated by this administrative body (which contained a built-in appeal process), it would recommend the issuance of a site blocking order to the CRTC. Since the CRTC regulates the telecommunications sector (as well as broadcasting), FairPlay Canada argued that the Commission had authority to issue blocking orders to Canadian ISPs. The CRTC, after a series of public hearings and an internal review, disagreed. It claimed it did not have jurisdiction and referred the issue to Parliament.

Despite testimony in 2019 before  the Parliamentary committees reviewing the Copyright Act that site blocking would be an effective remedy against offshore piracy, the committees did not recommend it. The Industry and Technology (INDU) Committee, one of two committees reviewing the Act, came out with a wishy-washy, non-substantive recommendation (while raising the canard of net neutrality);

Following the review of the Telecommunications Act, that the Government of Canada consider evaluating tools to provide injunctive relief in a court of law for deliberate online copyright infringement and that paramount importance be given to net neutrality in dealing with impacts on the form and function of Internet in the application of copyright law.”

“Consider evaluating…” is not exactly a strong recommendation for action.

The Heritage Committee’s recommendation was even less helpful and less specific. The only tangential reference to site blocking that this committee listed in its recommendations was that the Government of Canada “increase its efforts to combat piracy and enforce copyright.”

As a result, to date no legislative action has been taken, although there are recent signs this may be changing.

With content owners and rights-holders not getting much joy from Parliament, action turned to the Courts. Somewhat surprisingly, since it was the first time it had done so, the Federal Court issued a site blocking order in November 2019 in the case of GoldTV, an egregious offshore piracy operator that had ignored previous court injunctions. The order was not opposed by any of Canada’s major ISPs but an appeal was filed by a small MVNO (mobile virtual network operator), ISP access reseller Teksavvy. The appeal was subsequently joined by a couple of “internet freedom” groups. It is hard to discern Teksavvy’s interest in appealing except that as a small reseller trying to carve out a customer base from the major ISPs, to be able to portray itself as a champion for unrestricted use of the internet (even to access illegal or infringing content) might be seen to give it some market advantage. (“Consumers of pirated content, you are welcome here”).  It is a specious way to run a business, but if the online harms legislation goes through, Teksavvy will have to comply with it like everyone else. The GoldTV case is ongoing, with the most recent court hearings being held in March of this year.

Meanwhile it looks as if the Trudeau government is finally getting serious about holding internet intermediaries to greater account when it comes to facilitating copyright infringement.  A discussion paper for public consultation proposing a host of possible actions to hold intermediaries–defined as including ISPs, cloud and web hosting services, search engines, web-based messaging and social media–to account, was released by the Industry Department (now known as Innovation, Science and Economic Development Canada) in mid-April. A number of ideas are floated in the paper, from tightening eligibility for safe harbour immunity (for example, by adjusting the knowledge standard related to infringing activity), to compulsory remuneration through collective licensing for use by intermediaries of copyrighted content, to establishing a statutory basis and procedures for injunctions against intermediaries, including site-blocking, de-indexing and takedown orders. The focus is on commercial-scale infringement, rather than individual actions. The comment period closes at the end of May.

This copyright-focussed consultation should be seen in the context of the ongoing discussion about regulating online harms. Driven by public dismay at the impunity with which internet platforms are used to spread dangerous, illegal and harmful content (Montreal-based Pornhub became the poster-child for irresponsible behaviour), the Government of Canada–with Heritage Minister Guilbeault as point man–is responding by proposing injunctions and site blocking for dissemination of illegal content on the internet, whether by domestic or foreign players.

Assuming an online harms regime is introduced, including establishment of a regulator to assess and act on illegal content through a transparent process, the public will gain confidence that the internet can be regulated appropriately in much the same way as offline content is regulated. If a process can be put into place to deal with online harms, one form of illegal behaviour on the internet, it can equally be applied to other forms of illegal conduct, such as copyright infringement. In fact, in some ways it is easier to determine copyright infringement than it is in the case of some online harms such as hate speech, terrorism and incitement to violence, which arguably have grey areas. Despite legal definitions, there will always be a degree of judgment required. In the case of copyright infringement, in the vast majority of cases the rights-holder is not in dispute. Most infringers will likely not even appear before a court or administrative tribunal to dispute the case.

Quite apart from the current GoldTV court case, it appears that the Trudeau government is finally prepared to move on site-blocking, amongst a suite of other measures to hold internet platforms more accountable. This includes requiring platforms to takedown harmful content expeditiously (no more immunity from liability if platforms fail to act or turn a deliberate blind eye to illegal content posted on their sites), along with blocking or disabling access to offshore websites disseminating similar illegal content. While not directly related, this should help lay the groundwork for the introduction of injunctions and site blocking measures to deal with illegal behaviour in the area of copyright infringement.

Although copyright enforcement is separate from the issue of online harms affecting internet users, there are nonetheless some similarities given that unrestrained copyright infringement also damages the public interest. Leaving aside the harm piracy inflicts on the economy and creative industries, widespread access by users to offshore pirate sites has other downsides, including exposing users to malware leading to extortion and worse, along with promotion of dodgy products and specious services. When it comes to the web, pirate sites operate on the periphery, outside normally acceptable business practices, and constitute yet another form of online harm.

Canada’s determination to address online harms through legislation will set a useful precedent that rights-holders can build on to develop similar measures to combat online piracy. The first hint of what may constitute a “Modern Copyright Framework for Online Intermediaries” is also now out for public consultation. At the end of the day, enacting reasonable controls over the practices of internet intermediaries and platforms is essential from a variety of perspectives, whether it is protecting children, combatting hate and racism and, yes, fighting piracy on behalf of creators and rights-holders.

© Hugh Stephens, 2021. All Rights Reserved.

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