Is re-imagined competition law the answer to concerns about Big Tech getting to be just too big?

That is the subject of an upcoming webinar hosted by the International Telecommunications Society (ITS). In a recent LinkedIn post, Stephen Schmidt, Vice-President Telecom Policy & Chief Regulatory Legal Counsel at TELUS, and Chair of ITS, writes:

Over the past decade, Amazon, Apple, Facebook, Google, and Microsoft have become the most valuable companies on the planet. These platforms have transformed our economic and social lives, enabling e-commerce, teleworking, video streaming, virtual healthcare, and more. Notwithstanding these benefits, this meteoric rise has raised concerns that Big Tech has become too big.

He asks if competition law, applied to Big Tech, might be a way to protect consumer privacy, enforce data protection, and ensure freedom of expression.

To that end, on September 15 now rescheduled to take place on October 20 at 10am (Eastern), ITS will host Big Digital Tech and the International Application of Competition Law. Registration is free.

Dr. Robert Picard, a senior fellow at the Reuters Institute for the Study of Journalism, University of Oxford, will consider the potential and trade-offs for applying competition law to control big tech. Professor Picard is considered to be a world-leading specialist on media economics and government media policies. Drawing on global experience and international variations in the application of competition law, the webinar will consider mechanisms for intervention, overlaps with other areas of regulations, and possible obstacles to a more ambitious use of competition law to promote and protect digital rights.

As I have highlighted before, I have taken advantage of continuing education opportunities from the International Telecommunications Society, and I have promoted many of these webinars on these pages. ITS serves as “a global platform for industry, policy makers and regulators to create a 360-degree view of an issue from the perspective of different regions and jurisdictions.”

I hope to see you at the September 15 session.

I think people have a right to be offensive. I have said that before. I get very concerned about this government’s plans to introduce legislation to deal with hurtful speech on the internet.

As I have written before, support for concepts like “Freedom of Expression” and “Freedom of Peaceful Assembly” is easy when you agree with what is being said. But how do we deal with dissent and with controversial points of view? How do we distinguish between language that is offensive but hasn’t crossed the line to be illegal?

However, there can be consequences that might arise from speech that is offensive yet legal.

Those consequences can vary depending on the speaker’s role or public status. We hold different people to different standards. We have heightened expectations of politicians and celebrities.

Over the past few days, questions have been raised about a hateful and hurtful language used by a consultant engaged by Canada’s Anti-Racism Action Program. I have been writing about my concerns with his association with this government-funding program since last April (See: “Purveying hate on the public dime” and “Government funded hate speech”)..

As a result of extensive amplification of my concerns by Jonathan Kay, this issue has finally attracted such sufficient public attention that the Minister who awarded the funding could no longer ignore calls for a review.

Let’s be clear: The government had been aware of this issue for months and made no acknowledgment of the problem, as if it hoped the matter would just go away.

If this individual was just a garden-variety antisemite, he might have been able to continue to spew vile comments about Jews and French Canadians in the obscurity that he so richly deserves. But he was a beneficiary of the largesse of Canadian taxpayers, and as a result, is subjected to certain behavioural expectations. Most Canadians wouldn’t expect antisemitic rants to regularly appear from government-funded anti-racism consultants working on an anti-racism program.

I suspect most Canadians would expect consequences to arise for a government-funded purveyor of hateful and hurtful online commentary.

Will this impact the overall credibility of the government’s Anti-Racism Action Program?

There are indeed consequences associated with testing the limits of speech freedoms.

The latest Bank of America Global Wireless Matrix (July 15, 2022) provides more evidence that Canada’s mobile market is among the least concentrated in the developed world.

Recall that just a few weeks ago I wrote that the Inclusive Internet Index from the Economist Intelligence Unit ranked Canada’s wireless market as the 90th of 100 countries in concentration, measured using the Hirschman-Herfindahl Index (HHI). According to Bank of America Global Research, Canada’s wireless HHI ranks 3rd lowest among the 20 developed economies.

These 2 recent authoritative reports from BofA and The Economist should make people challenge populist claims that “Canada’s mobile wireless markets feature persistently high levels of concentration”.

“Persistently high levels” compared to what? It is misleading to say that Canadian wireless markets feature high level of concentration without providing context. Many capital intensive industries, including telecom, are highly concentrated. It should be important to examine Canada’s wireless HHI relative to the HHI found in other countries.

Quite simply, those who imply that Canadian wireless is more concentrated than other countries are misrepresenting the facts. The data clearly shows that Canadian telecom ranks among the least concentrated in the world.

From the outset, I have had concerns about plans to create new legislation addressing online hate.

Some may find my position surprising, given my involvement in the first CRTC application to request blocking of a website, back in August 2006.

That was a very different case from trying to establish a regime that attempts to define what constitutes online harms and enforces limits on our freedom of expression.

As I wrote last year:

we need to be able to distinguish between language that is insightful and words that are inciteful. Which words lead to constructive engagement and which words are those that are destructive? What facts are being omitted because they inconveniently don’t fit the narrative being set forward? Which authors are consistently reliable and which ones seem to prefer sensationalism over substance?

In 1964, ruling on a case considering “hard-core pornography”, US Supreme Court Justice Potter Stewart wrote of the term that “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it”.

How will we define what material online should be considered illegal, versus that material which is merely offensive? Will we know it when we see it?

This could be the challenge for the Heritage Minister in introducing online harms legislation. Indeed, the expert advisory group appointed by Heritage Minister Pablo Rodriguez earlier this year concluded its work 2 months ago, recognizing “The issue of harmful content found online is both a critical and complex issue that calls for an approach that balances freedom of expression, protection of privacy, and online safety.”

That said, let’s examine a very current situation: a Montreal-based consultant who refers to Jews as “loud mouthed bags of human feces”, and threatens “Jews with a bullet to the head” (as highlighted in a Twitter stream last Friday by journalist Jonathan Kay).

Hateful or merely offensive? To me, it’s pretty clear that this kind of commentary crossed the line.

But we don’t actually need to consider whether or not Laith Marouf’s comments would survive Canadian Heritage’s prospective Online Harms legislation. Legal or not, it seems pretty inexcusable that this same department of the Canadian government has been providing funding to him.

And to add insult, the funding falls under the Department’s “Anti-Racism Action Program”. Was there any due diligence performed by those responsible for vetting applications? Did anyone use Google before handing out cash to this guy?

I highlighted this problem back in April shortly after the news was released, quoting Canada’s Minister of Housing and Diversity and Inclusion. Before providing a Ministerial statement for the CMAC press release, did anyone check references for the other guy being quoted?

Four months after I started asking questions, I have still seen no action by the government to distance itself from this online purveyor of antisemitism.

The Minister has said Canada is seeking to create “a legislative and regulatory framework to … help create a safe space online that protects all Canadians”.

How can we expect the Minister of Canadian Heritage to establish legislation creating safe spaces online, when the same department is funding those creating the kinds of material against which the legislation is intended to target.

There can be no credibility for online harms legislation being proposed by a department that funds those who generate online hate.

There was only one year that we held The Canadian Telecom Summit in a government owned facility.

Back in 2004, the event had grown big enough to warrant moving to one of Toronto’s larger exhibition facilities. The CEOs of Bell, Rogers, TELUS, Sprint Canada, and Allstream were all keynote speakers, as well as the CEOs and COOs from Cisco, Nortel, Ericsson, Siemens and Alcatel. Attendance was projected to be triple what it had been the previous year.

We booked the relatively new South Building of the Metro Toronto Convention Centre (MTCC), right downtown. The event was only held there once, and the reason we didn’t go back can be summarized by telling you a little story about the coffee.

A few weeks before the Summit was taking place, I attended another technology trade show at the same venue. I poured myself a cup of coffee from one of the big jugs and almost immediately spat it out, just like we have all seen in the cartoons. I called our conference producer and asked her to get the type of coffee changed.

She called me back a few minutes later with the response, “No”. Changing coffee suppliers? Unheard of.

We were told that was the coffee that gets served at MTCC. Period. After much discussion, we were able to negotiate buying our own ground coffee, providing it to the MTCC and they would still charge us the same $3 per cup to serve it, with the added proviso that we would agree to sign waivers for serving “outside” food and beverage. We were told how many pounds of coffee to provide for the 2 day event. As it turned out, buying bulk ground coffee isn’t that expensive – in those days, it was about $70 for a case with 20 one pound bags. A pound of coffee made 50 cups. So I bought nearly 50% more than what the venue recommended – just to make sure.

As it turned out, at the end of the first day, the maitre d’ informed me that he had never seen people drink so much coffee. He warned me that they were going to run out of coffee, and asked if we wanted to get more, or start serving their coffee. I had a taxi bring us another case of our roast.

After the event concluded, we met with the venue to discuss the ups and downs. We paid thousands of dollars for coffee for the nearly 600 people at the event. The MTCC salesperson echoed the Maitre D’s comments that our attendees drank more coffee than they were used to seeing. I replied that maybe it was because the attendees actually liked our coffee.

Think about it. We paid the equivalent of about 7 cents for a cup of a decent roast and the venue charged $3 to serve it. On a per cup basis, how much cheaper could the the venue be getting their ground coffee? Certainly, when you are buying thousands upon thousands of pounds of coffee, it may appear to be smarter to save a couple cents per pound. But they weren’t selling as much as they could.

I am sure that some government purchasing agent was proud of reducing the coffee expenditures by 10%, 20% or more.

But at what cost?

What we experienced was the result of staff focused on cost minimization, instead of profit maximization. Shaving a penny or two per cup in costs resulted in dramatic reductions in sales of a product with ridiculously high margin. For a few cents more per cup in costs, we showed how the venue could have been making so much more money and improving customer satisfaction.

The Canadian Telecom Summit moved to a privately owned venue near Toronto Airport for the next 15 years. When we first met with the other venue, the salesperson offered me a coffee. I asked what kind they served and following her response she asked, “Is there a particular roast you would like us to serve?”

There is a lesson in there about incentive plans for staff, and the way organizations measure success.

There can be a high cost associated with going with the lowest cost solution.