Contested Sovereignties: States, Media Platforms, Peoples, and the Regulation of Media Content and Big Data in the Networked Society
- Table of Contents
- 1. Introduction
- 2. The Networked Society
- 3. Canadian Media Content Regulation Space
- 4. The Nature and Competing Dynamics of Sovereignty
- 4.1. National Sovereignty
- 4.1.1. The Principle of Technological Neutrality
- 4.1.2. Territorial Jurisdiction Constraints and Precedents
- 4.1.3. Justifications for National Media Content Regulation
- 4.2. Transnational Digital Platforms Sovereignty
- 4.3. Personal (Data) Sovereignty
- 4.3.1. Viewers’ Personal Data Collection
- 4.3.2. Personalization of Media Content and Net Neutrality
- 4.3.3. Access to Affordable Communication Networks
- 5. Mediating Sovereignties in the Networked Society: Insights from Media Theorists and Other Scholars
- 6. Conclusion: Mapping the Contours and Justifications of States’ Mediating Powers and Regulation of Media Content
2. The Networked Society
3. Canadian Media Content Regulation Space
4. The Competing Dynamics of Sovereignty
4.1. National Sovereignty
4.1.1. The Principle of Technological Neutrality
4.1.2. Territorial Jurisdiction Constraints and Precedents
4.1.3. Justifications for National Media Content Regulation
4.2. Transnational Digital Platforms Sovereignty
4.3. Personal (Data) Sovereignty
4.3.1. Viewers’ Personal Data Collection
4.3.2. Personalization of Media Content and Net Neutrality
4.3.3. Access to Affordable Communication Networks
5. Mediating Sovereignties in the Networked Society: Insights from Media Theorists and Other Scholars
6. Conclusions: Mapping the Contours and Justifications of States’ Mediating Powers and Regulation of Media Content
Data Availability Statement
Conflicts of Interest
(Government of Canada 2020a), at 10 (Report issued pursuant to a Broadcasting and Telecommunications Legislative Review undertaken in 2018) [Communications Future Report].
See Broadcasting Act, S.C. 1991, c. 11, s. 2(1) “program”. See also Communications Future Report, supra note 1 at 122 (recommending modifications to the Broadcasting Act definition of program to make it more technologically neutral and to include alphanumeric news (while subjecting the latter to different regulatory regime)).
See below Section 4.3 “Personal (Data) Sovereignty”, briefly situating user-generated content within media content regulation debates.
(Hamilton and Robinson 2019) at 16 (defining regulation as “established rules and procedures applied by governments and other political and administrative authorities to all kinds of expressive activities” citing Denis McQuail, Media Regulation (University of Leicester, Department of Media and Communication, Leicester, UK, 2010) at para. 1. online: https://www2.le.ac.uk/projects/oer/oers/media-and-communication/oers/ms7501/mod2unit11/mod2unit11cg.pdf (accessed on 3 June 2021).
See discussion below in Section 4.2 “Transnational Digital Platform Sovereignty”.
(McLuhan  2003, p. 395), [Understanding Media].
Understanding Media, supra note 7 at 130.
(Charland 1986, p. 206; Golick and Speer 2019), at 7 (“A combination of the rise of Canadian nationalism in and around the centenary in 1967, attendant concerns about the dominance of American culture and popular opposition to the Vietnam War, and the cultural and political influences of the Quiet Revolution in Quebec contributed to a growing emphasis on “cultural sovereignty” and the “development of Canadian expression” […] These sentiments shaped […] Canadian content (CanCon) requirements in conjunction with the establishment of the CRTC”); (Grant 2018), (summarizing the four key features of Canadian Broadcasting System, i.e., (i) Canadian ownership and control (ii) that the system should safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada; (iii) creation and presentation of Canadian programming (iv) the importance of the role of CBC).
Golick and Speer, supra note 10 at 7.
Grant, supra note 10.
Supra note 2.
S.C. 1993, c. 38.
R.S.C., 1985, c. R-2.
Established under the Canadian Radio-television and Telecommunications Commission Act, R.S.C., 1985, c. C-22.
The CRTC has various powers under the Telecommunications Act, supra note 14 and Broadcasting Act, supra note 2; the Radiocommunication Act, supra note 15, confers powers to the Minister of Industry.
For a detailed analysis of the communication regulatory framework of broadcasting and telecommunications in Canada, see (Bannerman 2020, pp. 159–214); see also Communications Future Report, supra note 1 at 39–41.
S.C. 2000, c. 5, s. s. 2(1) “federal work, undertaking or business” (the Act applies to private sector radio broadcasting and telecommunications companies); other privacy laws applying to the private sector include laws in provinces with general private-sector laws that have been deemed substantially similar to PIPEDA, i.e., Alberta, British Columbia, Quebec: see Office of the Privacy Commissioner of Canada, “Summary of Privacy Laws in Canada” (31 January 2018), online OPIC <www.priv.gc.ca/en/privacy-topics/privacy-laws-in-canada/02_05_d_15/> (accessed on 3 June 2021); Privacy Act, R.S.C., 1985, c. P-21, s. 3 “government institution” (the Act applies to crown corporations including public broadcaster CBC/SRC); Telecommunications Act, supra, note 14, s. 7 (i) (policy objectives include “the protection of the privacy of persons”).
Bannerman, supra note 18 at 164 (tracing back increased media convergence to the nineties).
See, e.g., Communications Future Report, supra note 1 at 63–64 (while report generally acknowledges legal regimes convergence, one of recommendation is to keep telecommunications and broadcasting regulation distinct). See also (Flew 2016, p. 78) (on how traditional assumptions about media regulation are increasingly challenged in a digitized online environment).
See discussion below Section 4.3.2 “Personalization of Media Content and Net Neutrality”.
Broadcasting Act, supra note 2, s. 2(1) (“program”, i.e., “sounds or visual images, or a combination [thereof] that are intended to inform, enlighten or entertain,” with some exclusions such as content which “does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text”).
Ibid., s. 2(1) “Distribution Undertaking” (referred to as “Broadcast distribution undertakings or BDUs).
Broadcasting Act, supra note 2, s. 2(1) “Programming Undertaking”.
Internet and mobile broadcasters do not require a licence: see discussion below in this part.
This requirement also applies to cable and direct to home distribution undertakings: (CRTC 2019b), (listing mandatary Canadian stations that must be offered by distribution undertakings under their basic services); Broadcasting Distribution Regulations (SOR/97-555), ss. 17–19.
Including through funding to the Canada Media fund. See (CRTC 2016), (on the Policy framework for Certified Independent Production Funds).
See (CRTC 2019c), (providing an overview of CRTC content standards and requirements policy).
Broadcasting Act, supra note 2 (“Canadian broadcasting system” is frequently referred to in the act; the expression is not defined).
Ibid., s. 3 (1) (a).
Ibid., s. 3(1), 3(2).
Ibid., s. 3(1) (d) (iv).
See discussion below in Section 4.1.1 “The Principle of Technological Neutrality”.
Broadcasting Act, supra note 2, s. 3 (1) (b).
See Communications Future Report, supra note 1 at 127–28 (recommending important changes to Broadcasting Act, s. 3 policy goals to more adequately reflect Indigenous peoples needs and demands with respect to Indigenous media content, and also to improve accessibility of media content for peoples with disabilities). Bill C-10, infra note47, if adopted, would amend the Broadcasting Act ss. 3 (1) (d) (iii), (o) to (s), 5(2), and add s. 9.1(i) to that effect.
New Media Broadcasting Exemption Order, infra note 39, “Summary”; Review of Broadcasting in New Media, infra note 41 at para. 27.
CRTC, “Public Notice CRTC 1999-197: Exemption Order for New Media Broadcasting Undertakings,” Orders (17 December 1999) Government of Canada, online: https://crtc.gc.ca/eng/archive/1999/PB99-197.htm (accessed on 3 June 2021). [New Media Broadcasting Exemption Order]; see also Bannerman, supra note 18 at 230–33.
Bannerman, supra note 18 at 231 (citing: Society of Canadian Authors and Composers (SOCAN), “C. Paul Spurgeon, Vice-President Legal Services and General Counsel, SOCAN to Robert A. Morin, Secretary General, CRTC, 10 July 2008,” https://services.crtc.gc.ca/Pub/ListeInterventionList/Documents.aspx?ID=72066&en=pb2008-44&dt=c&Lang=e, accessed on 13 May 2016).
(CRTC 2009, paras. 23–24, 48), [Review of Broadcasting in New Media].
CRTC, “Reference to the Federal Court of Appeal—Applicability of the Broadcasting Act to Internet service providers”, Broadcasting Order CRTC 2009-452 (28 July 2009) Government of Canada, online https://crtc.gc.ca/eng/archive/2009/2009-452.htm (accessed on 3 June 2021); Canadian Radio-television and Telecommunications Commission (Re), 2010 FCA 178; Reference Re: Broadcasting Act, 2012 SCC 4 at para. 5 (confirming decision by the Federal Court of Appeal).
(CRTC 2019a), (services from 2016 to 2019 include Netflix, Prime Video, Crave, Disney, Club Illico).
Golick and Speer, supra note 10 at 16 (citing scholars, policy report, ministry declarations pointing toward the need to bring important changes to the broadcasting system).
Bill C-10: An Act to amend the Broadcasting Act and to make consequential amendments to other Acts, 2d Sess, 43rd Parl, 2020 (third reading 21 June 2021) [Bill C-10] (adding “online undertaking” to “broadcast undertaking”, amending ss 3(1) (f) to (h) and (o) to (s) with various obligations regarding contribution to creation and discoverability of Canadian content; as of the submission date of this article, Bill C-10 was still under review and debate).
See discussion in Section 4.1.1 below “The Principle of Technological Neutrality”.
(Besson 2011, para. 13), (the origins of the modern conception of sovereignty goes back to the Treaty of Westphalia in 1648 which recognized state power over their territory as well as the principle of non-intervention between states); (Troper 2012, p. 354), see also (Woods 2018, pp. 328, 360).
Besson, supra note 49 at para 143.
Ibid. at para 143.
Ibid. at para 133, 36 (pointing to a “two-pillar construction of the international legal order that protects democratic autonomy through sovereignty, on the one hand, and individual autonomy through human rights, on the other”).
Troper, supra note 49 at 350–54 (on various scholarly debates around sovereignty and on how concept is used in constitutions and in legislative instruments).
Besson, supra note 49 at para 4.
See below Section 4.1.2 “Territorial Jurisdiction Constraints and Precedents”.
Besson supra note 49 at para. 77.
See, e.g., Understanding Media, supra note 7 at 176, 255.
Supra note 8.
(Liaropoulos 2016, p. 16), (citing the work of David J.Betz and Tim Stevens).
Ibid. at 16 (citing the work of Paul Cornish).
(Mainwaring 2020), at 7 (referring to the work of Mark Lemley, and of Stephen Graham).
Ibid. at 7.
Supra note 38–46.
See generally Liaropoulos, supra note 60 (on the multi-stakeholderism involved in cyberspace governance).
Woods, supra note 49 at 367.
Supra note 33–36.
Bannerman, supra note 18 at 195, 207 (on how at the time of the entry into force of Canada’s first Broadcasting Act in 1932, associations based in Québec were suspicious and disliked that the federal government affirm its power in Canadian broadcasting; and on how Indigenous peoples’ claims of sovereignty regarding the broadcasting spectrum are founded on section 35 of the Constitution Act, 1982, however have not yet been formally recognized in Canada, unlike other jurisdictions, and on how following the Truth and Reconciliation Commission Report (2015) questions are discussed on how broadcasting law and policy can further the objective of reconciliation).
Golick and Speer, supra note 10 at 7 (on how Canada’s broadcasting law and policy has traditionally been focusing on protecting local broadcasters and a local market, and how it needs to shift toward supporting Canadian creators and producers on global markets).
Hamilton and Robinson, supra note 4 at 22; Flew, supra note 21 at 75–76, (pointing to five main challenges to state regulation of media content: decline of nation-state power, neo-liberalism, the internet as global network, global media enhancing consumer choice and removal of previous media scarcity as justification for state regulation, and shift of regulatory influence to non-state actors, media platforms, non-governmental organizations and various advocacy groups).
Charland, supra note 10 at 199, 202–3.
(Reed 2007, p. 266), (while also emphasizing the ambiguity of the concept, at 264–69); (Greenberg 2016, p. 1495); see (Craig 2016, p. 603); (Hagen 2013, p. 311), (pointing out that the principle applies unless Parliament intended otherwise). See also (Hutchinson 2015) (describing technological neutrality as containing two dimensions when applied to copyright: non- discrimination between technologies and non-interference, requiring high thresholds of conduct or activity before copyright liability will be attracted).
See, e.g., Copyright Act, R.S.C., 1985, c. C-42, s. 3(1)c (describing the exclusive right to produce or reproduce a work “in any material form whatever”); Broadcasting Act, supra note 2 (“Broadcasting: means any transmission of programs, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public […] emphasis added); see (Trudel 2009, p. 9).
Supra note 77; Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 at paras 5–10, 48–49; Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36 at para 43; Canadian Broadcasting Corp v SODRAC 2003 Inc, 2015 SCC 57at paras 45–55, 62–63, 65–96, 139–44, 148,150–83 [SODRAC]; Robertson v Thomson Corp, 2006 SCC 43 at paras 48–49, 74–75, 86–88, 94 (referring to the concept of “media neutrality”); Keatley Surveying Ltd. v Teranet Inc., 2019 SCC 43 at paras 86–88.
Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives, SOR/2006-355, s. 1(b)(iv).
Communications Future Report, supra note 1 at 116 (recommending “a redefinition of the activities and actors subject to regulation that is technologically neutral and forward looking” with respect to the regulation of media content); (Government of Canada 2020c), (on how Bill C-10, supra note 47, follows technologically neutral principles by applying similar regulations to similar broadcasting undertakings).
Reed, supra note 76 at 266–69 (on different understandings and applications of technological neutrality); Craig, supra note 76 at 606–15.
SODRAC, supra note 78 at paras 45–55, 62–63 (majority reasons).
Ibid. at paras 139–44, 148, 150–83 (dissenting reasons by Abella J.).
See (Craig 2013, p. 274), (citing Bert-Jaap Koops on the many facets of technological neutrality, and observing that none of these components effectively require neutrality that would preclude any discrimination between technologies).
See Greenberg, supra note 76 at 1546–59 (making the case for embedded mechanisms allowing technological discrimination in the US Copyright Act (and eventually other statutes) as a better way to ensure that the goals of technological neutrality of statutory longevity and doctrinal equivalence would be achieved, while avoiding the unintended effects of the application of technological neutrality).
See Craig, supra note 76 at 612–15 (referring to an expansive application of technological neutrality in Canadian copyright law as an application of principle of prescriptive parallelism).
See (Chapdelaine 2017, pp. 184–87).
Supra note 45.
Broadcasting Act, supra note 2, s.2(1) (definition of “broadcasting”, referring to radio waves or other means of telecommunication, (emphasis added)); CRTC New Media Broadcasting Exemption Order, supra note 39; Bill C-10, supra note 47 (ss. 1(1), 2(1) to amend “broadcasting undertaking” to include “online undertaking: an undertaking for the transmission or retransmission of programs over the Internet for reception by the public by means of broadcasting receiving apparatus”).
Gollick and Speer, supra note 10 at 6 (referring to estimates that by 2020 there would be more over-the-top subscribers than subscribers to traditional broadcasters, citing statistics reported by Danielle Desjardins).
(Kindred et al. 1993, p. 325). See also Pro Swing Inc v Elta Golf Inc, 2006 SCC 52 at para 53 (on the general rule of non-extraterritoriality of laws in the context of the enforcement of foreign judgements).
(Sullivan 2014, p. 839), (on the presumption “that legislation is not intended to apply extra-territorially to persons, things or events outside the boundaries of the enacting jurisdiction); Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45 at para 55 [CAIP].
Statute of Westminster, 1931, 22&23 Geo. 5, c.4, s.3 (Parliament of a Dominion “has full power to make laws having extra-territorial operation”).
Tolofson v. Jensen,  3 S.C.R. 1022 at 1051. Allowance between states for some extra-territorial effect of laws flows from the principle of international comity: Hilton v. Guyot 159 U.S. 113 (1895) at 163–64.
Supra note 15, s. 3(3) (stating the application of the Act within Canada and on board specific vessels, aircrafts, etc., with a specific connection to Canada (as listed) and on any structure, platform, etc., attached to land in the continental shelf of Canada).
Sullivan, supra note 92 at 842; see also CAIP, supra note 92 at para 60.
CAIP, supra note 92 at para 60 (citing previous Supreme Court decisions elaborating and applying the principle); R v Larche, 2006 SCC 56 at para 59 (citing Libman v. The Queen,  2 S.C.R. 178 and United States of America v. Lépine,  1 S.C.R. 286).
CAIP, supra note 92 at para 60 (citing Tolofson, supra note 94 at 1047).
Supra note 92.
Ibid. at paras 1, 6–7.
Ibid. at para 56.
Ibid. at para 60.
Ibid. at para 61.
Ibid. at paras 76–77.
Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 at para 47 (on the inevitable extraterritorial reach for injunctive relief sought against Google Inc. for materials posted on the internet, Supreme Court upholding worldwide interlocutory injunctions against Google Inc.).
Review of Broadcasting in New Media, supra note 41 (with Concurring Opinion of Timothy Denton, then CRTC Commissioner, arguing that the critical issue around any attempt to regulate internet broadcasting was freedom of speech as it amounted to censorship and the CRTC role was not about protecting traditional broadcasters).
Supra note 1 at 67 (Recommendation 19).
Ibid. at 174 (making such recommendation, following the footsteps of the Province of Québec and Saskatchewan that already collect sales tax with respect to foreign online services undertakings); (Government of Canada 2021), (Government of Canada introducing goods and services and harmonized sales taxes as of 1 July 2021 for cross-border digital products and services including video and music streaming platform sites).
Flew, supra note 21 at 75; Bannerman, supra note 18 at 190–91.
Bannerman, supra note 18 at 190; Golick and Speer, supra note 10 at 7 (on how the scarcity of radio frequencies were viewed as a public asset that justified, necessitated even media content regulation).
Gollick and Speer, supra note 10 at 6 (referring to estimates that by 2020 there would be more over-the-top subscribers than subscribers to traditional broadcasters, citing statistics reported by Danielle Desjardins).
Bannerman, supra note 18 at 191 (explaining why spectrum scarcity, at a technical level, has become less prevalent with the introduction of digital technologies).
Golick and Speer, supra note 10 at 9–11 (on the evolution of broadcasting in Canada from a concentrated market of a small number of broadcasters, where access to programming was free to viewers, and revenue was derived from advertising, to a subscription model to channels with the advent of cable tv specialized channels, to a decentralized global market with the advent of OTT internet broadcasting).
Bannerman, supra note 18 at 192–93.
See (Klonick 2018, p. 1661) (on the traditional justification of pervasiveness for the regulation of broadcasting in the US and about a different form of pervasiveness on the Internet); Flew, supra note 21 at 78 (on the convergence of different media requiring new approaches to media content regulation).
(Wu 2016) at 6 (on how attention is a commodity, the retention of which is central to several media business model and on how it impacts human consciousness).
Supra note 33–36.
See below Section 4.3.2 “Personalization of Media Content and Net Neutrality”.
See below Section 6 “Conclusion: Mapping the Contours and Justifications of States’ Mediating Powers and Regulation of Media Content” (reaffirming and redefining national cultural sovereignty).
See below Section 4.3.1 “Viewers’ Personal Data Collection”. For a discussion on scope and limits of data or digital sovereignty, see Woods, supra note 49 at 360–66; (Pohle and Thiel 2020).
An access to information request was submitted to CBC/SRC asking whether CBC/SRC entered into agreements with YouTube and about the general terms of such agreements concerning the handling and access by CBC/SRC to personal data relevant to Canadians. CBC/SRC did not disclose any specific agreement and responded that it was not aware of specific terms between CBC/SRC and YouTube/Google Inc. concerning the handling of personal data.
Ibid. at 136, 200.
Cohen, supra note123, at 187–188. See also: (Teachout 2020, p. 111), (pointing out that “Corporate money is everywhere in politics” leading to “a new kind of political system in which big companies directly become the primary political institution”).
Cohen, supra note 123 at 202 (“imposing their own regulatory structures on permitted conduct—e.g., sponsored search results, Facebook “likes” and “tags,” Twitter retweets—and their own internal sanctions on disfavored conduct”).
Teachout, supra note 126 at 56.
Woods, supra note 49 at 339–51 (providing an overview of high-profile disputes opposing dominant internet companies and states).
See, e.g., (Office of Privacy Commissioner of Canada 2019), (around the Cambridge Analytica scandal, about Facebook disputing the findings of the Privacy Commissioner of Canada, and refusing to implement recommendations to address deficiencies).
(Armstrong 2014), (Netflix invoking confidentiality and sensitivity of information concerns).
Woods, supra note 49 at 405.
Cohen, supra note 123 at 176.
(Khan 2017, p. 743), (generally on anti-trust laws and regulatory bodies inability to properly identify and address market dominance in the new platform economy, resorting to Amazon.com business model example as case study).
Supra note 97–105 (on real and substantial connection test to assert jurisdiction over extra-territorial matters).
See above Section 4.1.3 “Justifications for National Media Content Regulation” (on the enduring prevalence of national cultural sovereignty as main justification and objective of media content regulation in Canada).
See, e.g., (Geist 2021a).
S. 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
See, e.g., Communications Future Report, supra note 1 ss. 4.3, 4.4 (on the need to address the impact of big data collection on consumers of communication and broadcasting services and making recommendations for legal reform in that regard, such as explicit reference to privacy as a policy objective of the Broadcasting Act, and increased cooperation between the CRTC and the Office of the Privacy Commissioner).
Coined phrase attributed to Clive Humby, UK Mathematician and architect of Tesco’s Clubcard, 2006.
Zuboff, supra note 6 at 96.
Ibid. at 289.
Zuboff, supra note 6 at 8, 63–97.
Ibid. at 74–82 (describing how, in the early 2000, Google created new algorithms protected by patents, that tapped into detailed personal data available through users’ search engine functions to develop a profitable business model based on increasing advertising revenues).
(Haggerty and Ericson 2000, p. 613), (referring to “the formation and coalescence of a new type of body, a form of becoming which transcends human corporeality and reduces flesh to pure information”).
See, e.g., Complaint at 9, 23, 48, United States v. Facebook, No. 19-cv-2184 (D.C. 24 July 2019) [hereinafter US Complaint]; settlement order granted: United States v. Facebook, No. 19-2184. 2020 U.S. Dist. WL 1975785 (D.C. 23 April 2020) (under which Facebook agreed to pay a fine of US $5 billions and to take various remedial actions in settlement of US Complaint, having allegedly resorted to misleading and deceptive information regarding users’ privacy settings, e.g., “Facebook did not disclose to users that sharing their non-public posts with Friends would allow Facebook to share those posts with third-party developers of Friends’ apps”).
Douez v. Facebook 2017 SCC 33 at para 59; Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, ss 7–8 (affording some protection without specifically referring to privacy, under the right to life, liberty and the security of the person, and the right to be secure against unreasonable search or seizure).
PIPEDA, supra note19, s. 6.1; Sch.1 s. 4.3.1, s. 5.3 requires firms to obtain valid consent to collection of personal data with no obligation to state the purpose of use, subjecting appropriateness of purpose to a reasonable expectation test. See (Piper 2000), (criticizing the permissive personal data collection framework of PIPEDA, as it is based on a commodified view of personal data as opposed to deserving human rights protection).
(Office of Privacy Commissioner of Canada 2020), (calling for law reform and more enforcement powers); See also (Office of Privacy Commissioner of Canada 2021), (about how privacy Bill C-11 if passed into law, would not grant more public enforcement power and could even be a step back regarding the protection of personal data).
Pasquale, supra note 149.
Ibid. at 3 (facilitated by: “The law, so aggressively protective of secrecy in the world of commerce, is increasingly silent when it comes to the privacy of persons”); Zuboff, supra note 6 at 338–35 (listing several factors explaining how “surveillance capitalists” have been able to get away for so long with concealing personal data handling practices from their consumers and the public; among them, consumers’ self-interest, social persuasion, inevitabilism, ignorance, and unprecedented, i.e., sui generis environment, logic and methods that were initially impossible to comprehend).
See, e.g., (Verborgh 2019).
EU, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation),  OJ, L 119 at 1 [EU GDPR].
California Consumer Privacy Act of 2018, CAL. CIV. CODE §§1798.100–1798.199 (2018).
BILL C-11, An Act to enact the Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act and to make consequential and related amendments to other Acts, 2d Sess, 43rd Parl (2020), (first reading 17 November 2020); (Government of Canada 2020b).
The collection of personalized data for online personalized ads has been widespread for several years. See Zuboff, supra note 6 at 19, 256 (on how the term “personalization” is used by suppliers as a euphemism to justify detailed collection of consumers’ personal data to improve the prediction of their behavior to better influence their future decision making and choices).
Ibid. at 19, 78.
Ibid. at 394–95.
(Elkin-Koren 2007, pp. 1136–37), (arguing that the consumption of “cultural artefacts” may require more attention than the consumption of mundane commodities: “Cultural artefacts are not simply useful commodities. While they often have an entertainment value that could be quantified, they also possess a communicative value and a symbolic significance. They engage our minds in a more direct and intimate way than do mundane commodities and, therefore, expose consumers to a higher risk of deeper and more intrusive restrictions of freedom. This particular vulnerability of information consumers is often overlooked.”).
Supra note 33–37.
Kant, supra note 161 at 394–95 (taking a critical stance on the view that commercial personalization as a form of narrowcasting enhances consumers’ autonomy).
Ibid. at 396.
Supra note 33–37.
(Napoli 2018, pp. 61–62), (how personalization of newsfeeds and media content reinforces existing views and beliefs with less exposure to counter facts or truths; the author suggests six main reasons why digital technology favours the circulation of misinformation within the broader purpose of unpacking assumptions embedded in the counter speech doctrine from a US perspective).
See, e.g., Hunt and Mc Kelvey, supra note 164 at 314 (about platform operators’ incentives to increase shareholder value through algorithms and architectures that retain viewers’ attention to generate higher advertising revenues); Wu, supra note117.
Hamilton and Robinson, supra note 4 at 25 (referring to the work of Napoli, supra note 169).
See, e.g., (Helberger 2015, pp. 1329–30), (on the role public service media can play to ensure diversity of media content through meaningful exposure beyond broad supply, and on the use of “diversity by design” algorithms that could counter the effects of personalization and “filter bubbles”, while also warning against dangers of use of state powers and intervention in that regard).
Supra note 14, ss. 27(2), 36.
“Telecom Regulatory Policy CRTC 2009-657” (21 October 2009), online: Canadian Radio-television and Telecommunications Commission https://crtc.gc.ca/eng/archive/2009/2009-657.htm#VII (accessed on 3 June 2021); “Telecom Regulatory Policy CRTC 2017-104” (20 April 2017), online: Canadian Radio-television and Telecommunications Commission https://crtc.gc.ca/eng/archive/2017/2017-104.htm (accessed on 3 June 2021).
Communications Future Report, supra note 1 at 108 (summarizing key justifications of net neutrality based on a multi-jurisdiction overview of the principle).
e.g., Copyright Act, supra note 77, s. 2.4(1) (b) (states the common carrier exception under which providing the means of communication transmission of copyright works does not on its own attract copyright liability).
Easley, Guo and Krämer, supra note 173 at 265 (arguing that when favoring affiliated content is harmful and the gatekeeper has incentives to do so, then data-neutrality regulation may be warranted); Hunt and McKelvey, supra note 164 at 314.
Easley, Guo and Krämer, supra note 173 (arguing that net neutrality relating to gatekeepers at the infrastructure level is part of a larger issue of data neutrality when gatekeepers operate at the digital platform level).
(Geist 2020), (arguing that recommendations to promote Canadian content are inconsistent with the core principles of net neutrality in Canada).
(Mittlestadt 2016), (generally proposing algorithm auditing for providers of content personalization systems for the purpose of maintaining the transparency of political discourse).
See, e.g., (McNally 2017); Communications Future Report, supra note 1 at 70–76, 105 (Recommendation 45).
See, e.g., (CRTC 2021; Government of Ontario 2020; Government of Canada 2019).
Communications Future Report, supra note 1 at 187 (recommendation 90 recommending that Canada’s Broadcasting Act and Telecommunications Act be amended to include a commitment about protecting consumer privacy).
Understanding Media, supra note 7 at 96.
Zuboff, supra note 6 at 525.
Zuboff, supra note 6 at 525.
Briddle, supra note 191at 252.
See for recent treatment: (Crawford 2021).
(Rogaway 1969), at 22 [McLuhan, Playboy].
Denardis, supra note 197 at 228.
McLuhan, Playboy, supra note 198 at 19.
Recent attempts to limit debate in the Canadian House of Commons to hasten the adoption Bill C-10, supra note 47 that would lead to important amendments to the Broadcasting Act, supra note 2, have given rise to important criticism. See (Emmanuel 2021; Geist 2021b).
Woods, supra note 49 at 359.
- Armstrong, Laura. 2014. Netflix Refuses CRTC Demand for Confidential Data. The Toronto Star. September 22. Available online: https://www.thestar.com/news/gta/2014/09/ (accessed on 3 June 2021).
- Bannerman, Sara. 2020. Canadian Communication Policy and Law. Toronto: Canadian Scholars. [Google Scholar]
- Besson, Samantha. 2011. Sovereignty. April. Oxford Public International Law. Available online: https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1472?print=pdf (accessed on 3 June 2021).
- Bratton, Benjamin H. 2016. The Stack: On Software and Sovereignty. Cambridge: MIT Press. [Google Scholar]
- Bridle, James. 2018. New Dark Age: Technology and the End of the Future. London: Verso. [Google Scholar]
- Chapdelaine, Pascale. 2017. Copyright User Rights, Contracts and the Erosion of Property. Oxford: OUP. [Google Scholar]
- Charland, Maurice. 1986. Technological Nationalism. Canadian Journal of Political and Social Theory 10: 196–220. [Google Scholar]
- Cohen, Julie E. 2017. Law for the Platform Economy. UCDL Review 51: 133. [Google Scholar]
- Craig, Carys J. 2013. Technological Neutrality: (Pre)Serving the Purpose of Copyright Law. In The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law. Edited by Michael Geist. Ottawa: University of Ottawa Press, p. 271. [Google Scholar]
- Craig, Carys J. 2016. Technological Neutrality: Recalibrating Copyright in the Information Age. Theoretical Inquiries in Law 17: 601–32. [Google Scholar] [CrossRef]
- Crawford, Kate. 2021. Atlas of AI: Power Politics and Planetary Costs of AI. New Haven: Yale University Press. [Google Scholar]
- CRTC. 2009. Broadcasting Regulatory Policy CRTC 2009-329: Review of Broadcasting in New Media. Regulatory Policies. Government of Canada, June 4. Available online: https://crtc.gc.ca/eng/archive/2009/2009-329.htm (accessed on 3 June 2021).
- CRTC. 2016. Broadcasting Regulatory Policy. CRTC 2016-343. Government of Canada, August 25. Available online: https://crtc.gc.ca/eng/archive/2016/2016-343.htm (accessed on 3 June 2021).
- CRTC. 2018. Guidelines for TV and Radio Broadcasters and TV Service Providers during an Election. Government of Canada: Revised May 10. Available online: https://crtc.gc.ca/eng/industr/tvradio/guidelec.htm (accessed on 3 June 2021).
- CRTC. 2019a. Communications Monitoring Report 2019. Online (pdf): Government of Canada. Available online: https://crtc.gc.ca/pubs/cmr2019-en.pdf (accessed on 3 June 2021).
- CRTC. 2019b. Ensuring a Place for Canadians. Government of Canada, May 23. Available online: https://crtc.gc.ca/eng/cancon/c_services.htm (accessed on 3 June 2021).
- CRTC. 2019c. Key TV Policies. Government of Canada. Modified June 14. Available online: https://crtc.gc.ca/eng/5000/tv2.htm (accessed on 3 June 2021).
- CRTC. 2021. Broadband Fund, Closing the Digital Divide in Canada. Government of Canada: Revised March 19. Available online: https://crtc.gc.ca/eng/internet/internet.htm (accessed on 3 June 2021).
- Cuihong, Cai. 2018. China and global cyber governance: Main principles and debate. Asian Perspective 42: 647–62. [Google Scholar] [CrossRef]
- Deibert, Ronald J. 2020. Reset: Reclaiming the internet for Civil Society. Toronto: Anansi. [Google Scholar]
- Denardis, Laura. 2020. The Internet in Everything: Freedom and Security in a World with No off Switch. New Haven: Yale University Press. [Google Scholar]
- Easley, Robert F., Hong Guo, and Jan Krämer. 2018. From Net Neutrality to Data Neutrality: A Techno-Economic Framework and Research Agenda. Information Systems Research 29: 253. [Google Scholar] [CrossRef]
- Elkin-Koren, Niva. 2007. Making Room for Consumers under the DMCA. Berkley Technology Law Journal 22: 1119–55. [Google Scholar]
- Emmanuel, Rachel. 2021. Blanchet Wants to Limit Debate of Broadcasting Legislation. June 1. Available online: https://ipolitics.ca/2021/06/01/blanchet-wants-to-limit-debate-of-broadcasting-legislation/ (accessed on 3 June 2021).
- Flew, Terry. 2016. National Media Regulations in an Age of Convergent Media: Beyond Globalisation, Neo-liberalism and internet Freedom Theories. In Global Media and National Policy. Edited by Flew Terry, Petros Iosifidis and Jeannette Steemers. MacMillan: Palgrave, pp. 75–91. [Google Scholar]
- Geist, Michael. 2020. Not Neutral: Why the Broadcast Panel Report Weakens Net Neutrality in Canada. Michael Geist. February 5. Available online: https://www.michaelgeist.ca/2020/02/not-neutral-why-the-broadcast-panel-report-weakens-net-neutrality-in-canada/ (accessed on 3 June 2021).
- Geist, Michael. 2021a. Debating Bill C-10 at the Canadian Heritage Committee, Part One: My Opening Statement. Michael Geist. May 18. Available online: https://www.michaelgeist.ca/2021/05/debating-bill-c-10/ (accessed on 3 June 2021).
- Geist, Michael. 2021b. Guilbeault’s Gag Order, the Sequel: Time Running Out as Government Seeks to End Debate on Bill C-10 in the House of Commons. Michael Geist. June 15. Available online: https://www.michaelgeist.ca/2021/06/guilbeaults-gag-order-the-sequel-time-running-out-as-government-seeks-to-end-debate-on-bill-c-10-in-the-house-of-commons/ (accessed on 3 June 2021).
- Golick, Jill, and Sean Speer. 2019. Turning the Chanel on CANCON. Online (pdf): Macdonald Laurier Institute. September. Available online: https://macdonaldlaurier.ca/files/pdf/20190913_MLI_CULTURAL_POLICY_Golick-Speer_PAPER_FinalWeb.pdf (accessed on 3 June 2021).
- Government of Canada. 2019. Canada, Innovation, Science and Economic Development. High-Speed Access for All: Canada’s Connectivity Strategy. Ottawa: Government of Canada, July. Available online: www.ic.gc.ca/eic/site/139.nsf/eng/h_00002.html#2_1 (accessed on 3 June 2021).
- Government of Canada. 2020a. Canada, Broadcasting and Telecommunications Legislative Review. Canada’s Communications Future: Time to Act. Ottawa: Government of Canada, January. Available online: https://www.ic.gc.ca/eic/site/110.nsf/vwapj/BTLR_Eng-V3.pdf/$file/BTLR_Eng-V3.pdf (accessed on 3 June 2021).
- Government of Canada. 2020b. Fact Sheet: Digital Charter Implementation Act. November 17. Available online: https://www.ic.gc.ca/eic/site/062.nsf/eng/00119.html (accessed on 3 June 2021).
- Government of Canada. 2020c. Modernization of the Broadcasting Act. November 3. Available online: https://www.canada.ca/en/canadian-heritage/services/modernization-broadcasting-act.html (accessed on 3 June 2021).
- Government of Canada. 2021. GST/HST for Digital Economy Businesses: Overview. June 30. Available online: https://www.canada.ca/en/revenue-agency/services/tax/businesses/topics/gst-hst-businesses/digital-economy.html (accessed on 3 June 2021).
- Government of Ontario. 2020. Up to Speed: Ontario’s Broadband and Cellular Action Plan. Government of Ontario, May 21. Available online: https://www.ontario.ca/page/speed-ontarios-broadband-and-cellular-action-plan (accessed on 3 June 2021).
- Grant, Peter S. 2018. The Broadcasting Act: Structure and Background. Innovation, Science and Economic Development Canada. December 5. Available online: https://www.ic.gc.ca/eic/site/110.nsf/eng/00005.html (accessed on 3 June 2021).
- Greenberg, Brad A. 2016. Rethinking Technology Neutrality. Minnesota Law Review 100: 1495–562. [Google Scholar]
- Hackett, Robert. 2019. Remembering the Audience: Notes on Control, Ideology and Oppositional Strategies in the News Media. In Popular Cultures and Political Practices. Edited by Richard Gruneau. Toronto: University of Toronto Press, pp. 83–101. [Google Scholar]
- Hagen, Gregory R. 2013. Technological Neutrality in Canadian Copyright Law. In The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law. Edited by Michael Geist. Ottawa: University of Ottawa Press, pp. 307–28. [Google Scholar]
- Haggerty, Kevin D., and Richard V. Ericson. 2000. The surveillant assemblage. British Journal Sociology 51: 605–22. [Google Scholar] [CrossRef]
- Hamilton, Sheryl N., and Sandra Robinson. 2019. Law’s Expression, Communication, Law and Media in Canada. Toronto: LexisNexis. [Google Scholar]
- Helberger, Natali. 2015. Merely Facilitating or Actively Stimulating Diverse Media Choices? Public Service Media at the Crossroad. International Journal of Communication 9: 1324–40. [Google Scholar]
- Hunt, Robert, and Fenwick McKelvey. 2019. Algorithmic Regulation in Media and Cultural Policy: A Framework to Evaluate Barriers to Accountability. Journal of Information Policy 9: 307–35. [Google Scholar] [CrossRef]
- Hutchinson, Cameron J. 2015. Technological Neutrality Explained & Applied to CBC v. SODRAC. Canadian Journal of Learning and Technology 13: 101–18. [Google Scholar]
- Kant, Tanya. 2014. Giving the Viewer a Voice: Situating the Individual in Relation to Personalization, Narrowcasting, and Public Service Broadcasting. Journal of Broadcasting and Electronic Media 58: 381–99. [Google Scholar] [CrossRef]
- Khan, Lina. 2017. Amazon Anti-Trust Paradox. Yale LJ 126: 710. [Google Scholar]
- Kindred, Hugh M., Jutta Brunnée, and Phillip M. Saunders. 1993. International Law Chiefly as Interpreted and Applied in Canada, 5th ed. Toronto: Emond Montgomery. [Google Scholar]
- Klonick, Kate. 2018. The New Governors: The People, Rules, and Processes Governing Online Speech. Harvard Law Review 131: 1598–670. [Google Scholar]
- Liaropoulos, A. 2016. Exploring the Complexity of Cyberspace Governance: State Sovereignty, Multi-stakeholderism and Power Politics. Journal of Information Warfare 15: 14–26. [Google Scholar]
- Lillington, Karlin. 2019. Ban All Indiscriminate Data Gatherings. IRISH TIMES. November 7. Available online: https://www.irishtimes.com/business/technology/karlin-lillington-ban-all-indiscriminate-data-gathering-1.4074670 (accessed on 3 June 2021).
- Mainwaring, Sarah. 2020. Always in control? Sovereign states in cyberspace. European Journal of International Security 5: 215–32. [Google Scholar] [CrossRef]
- McLeod Rogers, Jaqueline. 2021. McLuhan’s Techno-Sensorium City: Coming to our Senses in a Programmed Environment. Lanham: Lexington. [Google Scholar]
- McLuhan, Marshall. 1973. At the moment of Sputnik the planet became a global theatre in which there are no spectators but only actors. Journal of Communication 24: 48. [Google Scholar] [CrossRef]
- McLuhan, Marshall. 2003. Understanding Media: The Extensions of Man. Edited by Terrence Gordon. Berkeley: Ginko. First published in 1964. [Google Scholar]
- McLuhan, Marshall, and Quentin Fiore. 1968. War and Peace in the Global Village. New York: Bantam. [Google Scholar]
- McNally, Michael. 2017. House of Commons Standing Committee on Industry, Science and Technology—Broadband Connectivity in Rural Canada Brief online (pdf): Our Commons. Available online: www.ourcommons.ca/Content/Committee/421/INDU/Brief/BR9272661/br-external/VanHorneInstitute-e.pdf (accessed on 3 June 2021).
- Mittlestadt, Brent. 2016. Auditing for Transparency in Content Personalization Systems. International Journal of Communication 10: 4991. [Google Scholar]
- Murschetz, Paul Clemens, and Daniela Schültz. 2018. Big data and television broadcasting. A critical reflection on big data’s surge to become a new techno-economic paradigm and its impacts on the concept of the «addressable audience». Fonseca, Journal of Communication 17: 23–38. [Google Scholar] [CrossRef]
- Napoli, Philip M. 2018. What if more speech is no longer the solution? First Amendment Theory Meets Fake News and the Filter. Federal Communications Law Journal 70: 55–104. [Google Scholar]
- Office of Privacy Commissioner of Canada. 2019. News Release. Facebook Refuses to Address Serious Privacy Deficiencies Despite Public Apologies for “Breach of Trust”. April 25. Available online: https://www.priv.gc.ca/en/opc-news/news-and-announcements/2019/nr-c_190425/ (accessed on 3 June 2021).
- Office of Privacy Commissioner of Canada. 2020. 2019–2020 Annual Report to Parliament on the Privacy Act. October. Available online: https://www.priv.gc.ca/en/opc-actions-and-decisions/ar_index/201920/ar_201920/ (accessed on 3 June 2021).
- Office of Privacy Commissioner of Canada. 2021. News Release. Commissioner: Reform Bill “a Step Back Overall” for Privacy. May 11. Available online: https://priv.gc.ca/en/opc-news/news-and-announcements/2021/nr-c_210511/ (accessed on 3 June 2021).
- Ovide, Shira. 2021. The Long, Painful Path of Net Neutrality—Where the War Over Net Neutrality Stands, and Why It (Sort of) Matters Today. New York Times. February 25. Available online: https://www.nytimes.com/2021/02/25/technology/net-neutrality-explained.html (accessed on 3 June 2021).
- Pasquale, Frank. 2015. The Black Box Society: The Secret Algorithms that Control Money and Information. Cambridge: Harvard University Press. [Google Scholar]
- Piper, Tina. 2000. The Personal Information Protection and Electronic Documents Act: A Lost Opportunity to Democratize Canada’s “Technological Society”. Dalhousie Law Journal 23: 253. [Google Scholar]
- Pohle, Julia, and Thorsten Thiel. 2020. Digital Sovereignty. internet Policy Review 9: 1–19. [Google Scholar] [CrossRef]
- Postman, Neil. 1985. Amusing Ourselves to Death: Public Discourse in the Age of Show Business. New York: Penguin Group. [Google Scholar]
- Radin, Margaret Jane. 2013. Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law. Princeton: Princeton University Press. [Google Scholar]
- Reed, Chris. 2007. Taking Sides on Technology Neutrality. SCRIPTed 4: 263–84. [Google Scholar] [CrossRef]
- Rogaway, Phillip. 1969. Marshall McLuhan Interview from Playboy. Available online: https://web.cs.ucdavis.edu/~rogaway/classes/188/spring07/mcluhan.pdf (accessed on 3 June 2021).
- Sullivan, Ruth. 2014. Sullivan on the Construction of Statutes, 6th ed. Markham: Lexis-Nexis. [Google Scholar]
- Teachout, Zephyr. 2020. Break ‘Em Up: Recovering our Freedom from Big Ag, Big Tech and Big Money. New York: All Points Books. [Google Scholar]
- Troper, Michael. 2012. Sovereignty. The Oxford Handbook of Comparative Constitutional Law. Edited by Michel Rosenfeld and Andras Sajo. Oxford: OUP Oxford, p. 354. [Google Scholar]
- Trudel, Pierre. 2009. Regulation of Broadcasting on the Internet: A Risk Management Process. December 5. Available online: https://ssrn.com/abstract=1626848 (accessed on 3 June 2021). [CrossRef]
- Verborgh, Ruben. 2019. How We Regain Control of Personal Data, A Return to a Decentralized Web. Towards Data Science. August 28. Available online: https://towardsdatascience.com/ruben-verborgh-on-data-privacy-accf91d280c9 (accessed on 3 June 2021).
- Woods, Andrew Keane. 2018. Litigating Data Sovereignty. Yale Law Journal 128: 328. [Google Scholar]
- Wu, Tim. 2003. Network neutrality, broadband discrimination. Journal of Telecommunications and High Technology Law 2: 141–79. [Google Scholar] [CrossRef][Green Version]
- Wu, Tim. 2016. The Attention Merchants The Epic Scramble to Get Inside our Heads. New York: Knopf. [Google Scholar]
- Zuboff, Shoshanna. 2019. The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. New York: Public Affairs. [Google Scholar]
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Chapdelaine, P.; McLeod Rogers, J. Contested Sovereignties: States, Media Platforms, Peoples, and the Regulation of Media Content and Big Data in the Networked Society. Laws 2021, 10, 66. https://doi.org/10.3390/laws10030066
Chapdelaine P, McLeod Rogers J. Contested Sovereignties: States, Media Platforms, Peoples, and the Regulation of Media Content and Big Data in the Networked Society. Laws. 2021; 10(3):66. https://doi.org/10.3390/laws10030066Chicago/Turabian Style
Chapdelaine, Pascale, and Jaqueline McLeod Rogers. 2021. "Contested Sovereignties: States, Media Platforms, Peoples, and the Regulation of Media Content and Big Data in the Networked Society" Laws 10, no. 3: 66. https://doi.org/10.3390/laws10030066