Law Bytes

The Online Harms Act is the culmination of years of public debate over whether – or how – the government should establish a regulatory framework for Internet platforms in dealing with online harms. Bill C-63 is already attracting considerable controversy, particularly over proposed changes to the Criminal Code and the Human Rights Act. To help unpack the bill, Vivek Krishnamurthy, an Associate Professor at the University of Colorado Law School, joins this week’s Law Bytes podcast. Vivek is a former colleague and Director of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and he served as a Commissioner on the Canadian Commission on Democratic Expression and was a member of the government’s Expert Panel on Online Harms.

Twenty years ago today the Supreme Court of Canada released CCH Canadian v. Law Society of Upper Canada, a decision that stands as perhaps the most consequential in Canadian copyright law history as it would firmly establish fair dealing as a users right and serve as the foundation for copyright law in Canada for decades to come.   Leading off the hearing several months earlier for the Law Society was Scott Jolliffe, an IP litigator with the law firm Gowlings. Jolliffe was charged with arguing the fair dealing aspects of the case, but it was only at last moment that users right entered the picture. To mark its 20th anniversary, Jolliffe joins the Law Bytes podcast to talk about the CCH case, his strategy and insights from the hearing, and his thoughts on its impact many years later.

The government plans to introduce the Online Harms Act later today, bringing forward long-delayed legislation that will include new responsibilities and liabilities for Internet platforms alongside an extensive complaints and enforcement governance structure. What is likely to be Bill C-63 will focus on protecting children online and will be the most contentious of the government’s Internet regulation bills given the challenge of balancing safeguards with freedom of expression. This week’s Law Bytes podcast features a combined backgrounder and preview of the bill as I walk through the years of failed consultations, expert panels, changing ministers, and challenges in bringing it forward, highlight the key issues at stake, and contrast the online harms bill with Bill S-210, which seems destined to share the spotlight.

Bill C-26, alternately described as a cyber-security, critical infrastructure or telecom bill, remains largely below the radar screen despite its serious implications for privacy, expression, and affordable network access. The bill is currently being studied at a House of Commons committee that seems more interested in partisan political gamesmanship rather than substantive hearings. Kate Robertson is lawyer and senior research associate at the Citizen Lab in the Munk School at the University of Toronto who is a former criminal counsel and the co-author of one of the most extensive Bill C-26 committee submissions. She appeared last week at the committee studying the bill, but with limited opportunity to engage on the issues, she joins the Law Bytes podcast to talk about the bill, the concerns it raises, and some of the potential fixes.

European countries reached agreement late last week on a landmark legislative package to regulate artificial intelligence. AI regulation  has emerged as a key issue over the past year as the explosive growth of ChatGPT and other generative AI services have sparked legislation, lawsuits and national consultations. The EU AI Act is heralded as the first of its kind and as a model for Canadian AI rules. Luca Bertuzzi is a Brussels-based tech journalist who was widely regarded as the leading source of information and analysis about the unfolding negotiations involving the EU AI Act. He joins the Law Bytes podcast to explain the EU process, the ongoing opposition by some countries, and the future steps for AI regulation in Europe.

I’ve described Bill S-210, the Protecting Young Persons from Exposure to Pornography Act, as the most dangerous Internet bill you’ve never heard of as it contemplates measures that raise privacy concerns, website blocking, and extend far beyond pornography sites to include search and social media. The bill started in the Senate and having passed there is now in the House of Commons, where MPs voted in favour of it at second reading and sent it to committee for further study.  Senator Julie Mivelle-Dechêne is the chief architect and lead defender of the bill. A former Radio-Canada broadcaster who was appointed to the Senate by Justin Trudeau in 2018, she joins the Law Bytes podcast to debate her bill as she provides her rationale for it and defends against the criticism and concerns it has sparked.

Canadian digital law and policy in 2023 was marked by so many legislative battles that you needed a scorecard to keep track: Bill C-11 on online streaming, Bill C-18 on online news, and Bill C-27 on privacy and AI were the headliners, but there were notable developments on content regulation, competition, and a digital services tax. For this final Law Bytes podcast of 2023, I go solo without a guest to talk about the most significant developments in Canadian digital policy from the past year and to think a bit about what may lie ahead in 2024.

The CRTC just concluded a three week hearing on Bill C-11 with its primary focus on the prospect of mandating interim payments by Internet streaming services. The result was predictable as just about everyone made their way to Gatineau to make their case for cash. I appeared for the first time before the CRTC where argued that it should prioritize competition, consumer choice and affordability, recognizing that the emerging system brings with it risks of market exit or higher prices. This week’s Law Bytes episode goes inside the Commission hearing for my opening statement and exchanges with the panel of Commissioners.

The Canadian government tried to salvage the Online News Act last week as its struck a deal with Google that will bring in $100 million to support the news sector and remove concerns about blocked news links. The government had to overhaul its own law in order to reach the agreement, tossing aside most of the core elements in favour of a fund-style single payment from Google. The reaction to the agreement from the news sector has been mixed at best with relative silence from many supporters and outright opposition from the likes of Torstar.  So what to make the of the deal and what comes next? Jeff Elgie is the CEO of Village Media, one of the largest independent, digital-only news outlets in Canada. He joins the Law Bytes podcast to walk though his participation in the process, reaction to the agreement, and thoughts for the future.

For many years, Canadians have lamented the state of competition for Internet broadband services, pointing to concerns regarding price and lack of choice. Earlier this month, the CRTC seemed to agree, admitting in a decision involving competitive access that it is “important that the Commission revise its approach to promote competition and protect the interests of Canadians.” Andy Kaplan-Myrth is Vice-President, Regulatory and Carrier Affairs at TekSavvy, one of the few remaining independent competitors in Canada. He joins the Law Bytes podcast to discuss the current state of competition, the recent CRTC decision, and what this might mean for the Canadian market.