Regulating Google: Defending the Broadcasting and Telecommunications Legislative Review Panel’s Report
What are the social media behemoths — Facebook, Google, Netflix, Twitter, Youtube, etc — that have come to dominate much of the contemporary public sphere? Answering this question is crucial to determining what role courts, economic regulators and legislatures should play in respect of the behemoths’ activities. Are they utilities, traditionally subject to regulation, in earlier times by the courts and in modern times by legislation and independent regulatory bodies? Or are they enterprises engaged in the communication of ideas and knowledge, traditionally regulated only where their activities ran into the general law of the land? I suggest that although the behemoths do not fit neatly into either of these categories, they are closer to the utility category.
Are Facebook, Google and Twitter like the Globe and Mail? They all traffic in information and comment but that is where the similarities end. Facebook et al are more like the newsstand where you choose between the Globe and Mail, National Post, Toronto Star and Toronto Sun. But whereas there are many newsstands, there is only one Facebook, one Google and one Twitter, with daunting barriers to entry facing a potential rival. For the most part, the behemoths are the means of transmission, not the means of production, of information and comment. More like utilities, in other words, than communicators. And the behemoths’ means of transmission, using complex and confidential machine-learning algorithms to decide which information and comment is displayed most prominently, shape public discussion and discourse.
Are Netflix and Youtube like old-fashioned movie production companies? I do not think so. They provide the infrastructure for the communication of content but (again, for the most part) they do not produce content themselves. And if a producer’s work is not accessible on Netflix or Youtube, or not displayed prominently, it is much less likely to make it to the eyes of the viewing public. Again, to my mind, Netflix and Youtube are much more like the utilities who provide audiovisual services than those who produce them.
I ask the question because answering it illuminates the Broadcasting and Telecommunications Legislative Review Panel’s controversial report, Canada’s Communications Future: Time To Act. The report has been strongly (maybe even severely) criticized since its publication last week (see my colleague, Michael Geist, for example, and here and here). But some of the criticisms, maybe all of them, arise because the critics would answer the question differently. For my part, without agreeing with every one of its 97 recommendations, I find the report bold and brave. Admittedly, this reflects my conceptual characterization of the social media behemoths, which leads inevitably to the conclusion that the behemoths pose a unique set of challenges for contemporary regulators like the Canadian Radio-television and Telecommunications Commission. This is the golden thread running through the report, linking together many of its recommendations.
Some of the report’s premises also seem to me to be uncontestable. For instance, we live in an increasingly borderless, Big Data world. The services provided by the behemoths travel across borders with much greater ease than services provided by those working in other sectors and those who worked in previous eras. Huge amounts of information about individuals in different locations around the world are being generated and collected on an ongoing basis. This poses challenges for domestic regulators (and politicians) who are concerned about local laws (such as the European ‘right to be forgotten’ and prohibitions on holocaust denial), employment rights, privacy protections, taxation requirements and, as in the Canadian case, cultural sovereignty. We can, of course, argue about whether these concerns are valid. But as soon as we accept that they are (and cultural sovereignty has long been a concern of broadcasting policymakers in Canada, especially French Canada), we cannot deny the unique challenges the behemoths pose — imposing French-language content requirements on Canadian-based enterprises is one thing, ensuring Netflix is available en français quite another; and, as the report correctly observes, much of the architecture of modern privacy law dates from an era in which intermediaries (like banks and hospitals) handled data as a means to their other business ends, quite unlike today’s behemoths, many of whose primary business is to exploit the data they collect (p. 188).
Some of the report’s recommendations have been thought to reach too far, registration requirements for certain Internet-based businesses chief amongst them (Recommendation 56). Without wishing to support this recommendation, it must be read in its proper context: it follows from the conceptual characterization of the behemoths as utility-like entities requiring regulation; it is proposed as an alternative to licensing (the current status quo for broadcasting and telecommunications regulation in Canada); and it is accompanied by a recommendation that the regulator can exempt business or classes of businesses from any registration regime — focusing on marginal cases like Breitbart News is, in my view, an unhelpful distraction from the core of the report, which deals with the behemoths.
Lastly, concerns about the constitutionality of the regime proposed by the report seem, to me, to be somewhat overblown. Again, however, my views here follow from my conceptual characterization. Obviously, a government seeking to impose content requirements on the Globe and Mail or Netflix would face an uphill battle, constitutionally speaking. But a government seeking to influence the structure in which content is provided to the public would have a much easier ride, all the more so given the discretion which would be built into the regime. Again, if the behemoths are like traditional utilities, structuring the way in which people receive services, there are ample precedents for regulation. Moreover, the report repeatedly emphasizes the need for better collection of information by regulatory authorities, advice which if heeded would no doubt buttress the defence of any constitutional challenge.
One thing is abundantly clear. What we think the social media behemoths are has significant implications for what we think the regulatory response ought to be.
This content has been updated on February 5, 2020 at 19:47.