Digital markets and platforms raise intersecting issues relating to competition, privacy, communications, intellectual property (IP) and culture. The rapid development of new digital business models, services, features and uses often leaves legislators and regulators scrambling to keep up. As governments develop new regimes intended to put guardrails around certain practices (privacy, communications, IP), or to incent investment and fair business practices (competition, culture), they are increasingly considering international best practices, and whether and how regimes can work across borders – as many of the digital businesses they regulate operate globally.
Digital regulators are noticeably ramping up their efforts to collaborate, both within their own domestic jurisdictions and internationally.
The Canadian Digital Regulators Forum
In June 2023, the Canadian Radio-television and Telecommunications Commission (CRTC), the Competition Bureau and the Office of the Privacy Commissioner of Canada (OPC) formed the Canadian Digital Regulators Forum (the Canadian Forum), which the Copyright Board of Canada joined in August 2024. The Forum’s Terms of Reference broadly state a purpose of “strengthen[ing] information sharing and collaboration on subject matters of common interest that relate to digital markets or platforms,” allowing Forum Members to “exchange best practices, conduct research and market analyses, and problem solve.”
In its first year (2023-2024), the Canadian Forum reported that it worked on better understanding each other’s roles, governing structures, priorities and experiences, and to identify potential synergies, and made artificial intelligence (AI) its Year One subject matter priority. The Canadian Forum also participated in the 2023 Asia-Pacific Economic Cooperation (APEC) Virtual Series on Policies and Tools for Improving Digital Economy and Competition in Digital Markets. See the report here, including comments from the Assistant Deputy Commissioner of the Competition Bureau Canada’s new Digital Enforcement Directorate, on the topic of “Interplay between Consumer Protection and Competition Enforcement in Digital Markets – Artificial intelligence and Dark Patterns.”
The heads of the four Members of the Canadian Forum recently participated in a roundtable discussion as part of Canada’s Competition Summit 2024. Competition Commissioner Matthew Boswell commented that the work of the four regulators “intersects more than ever” and that “many of the concerns around AI cut across our mandates.” Panelists described how each regulator is considering AI and synthetic media under its respective mandate.
- Privacy Commissioner Philippe Dufresne noted an ongoing investigation concerning consent for the collection, use and disclosure of personal information via AI technology.
- Copyright Board CEO Drew Olsen noted the consultation by the Department of Innovation, Science and Economic Development Canada on Copyright in the Age of Generative Artificial Intelligence and also stated that he expected the board, under its own mandate, to face issues of how to value content created using AI.
- CRTC Chair Vicky Eatrides stated that she expected AI-generated content to be part of consultations to define Canadian content under the Broadcasting Act.
- Competition Commissioner Matthew Boswell highlighted the Bureau’s consultation on a March 2024 Discussion Paper, “Artificial Intelligence and Competition,” seeking comment on competitive harm from AI and promoting competition in AI markets. Notably, the discussion paper prominently called out the Bureau’s cross-governmental collaboration with OPC and CRTC on emerging technologies including AI “as they intersect with our respective mandates.”
The International Network of Digital Regulation Cooperation
The Canadian Forum has also become a member of the International Network of Digital Regulation Cooperation (INDRC), a network of similar digital regulator forums of domestic regulators in the areas of competition, communications, privacy and consumer protection. Intended to “promote greater coherence in digital regulation both domestically and internationally,” the INDRC includes the UK Digital Regulation Cooperation Forum (DRCF), the Ireland Digital Regulators Group, the Australia Digital Platform Regulators Forum (DP-Reg) and the Netherlands Digital Regulation Cooperation Platform (SDT). The Canadian Forum stated that it joined the INDRC “to strengthen international ties given the scale and global nature of digital markets and the speed at which they innovate.”
Worth watching
- Will regulators influence each other’s regulation and enforcement practices? At this early stage, it appears that the answer could be yes or no. On the one hand, each of the Canadian regulators – the CRTC, the Competition Bureau, the Office of the Privacy Commissioner and the Copyright Board of Canada – is an independent agency or tribunal decision-maker. The Canadian Forum Terms of Reference states that:
[The Forum] is not a statutory or an incorporated body and does not provide formal advice or direction to Member agencies, which remain individually accountable for the fulfilment of their mandates. No decisions or activities relating to the Forum’s [Terms of Reference] are intended to be binding on Members.
Legally, each of the Canadian regulators must make its own independent decisions. On the other hand, the very purpose of the Canadian Forum is to “strengthen collaboration” and “fulfill […] individual mandates through increased partnership and cooperation.” We will be watching how regulators maintain independence as they collaborate and problem solve together.
- How extensively will regulators share industry information? Certain Canadian statutes formally provide for regulator collaboration, setting out frameworks for, and safeguards on, information sharing. Internationally, the Canadian Forum Members are also part of issue-specific organizations with mandates to share information and support cross-border enforcement efforts.
For example, Canada’s Anti-Spam Law (CASL) provides that the CRTC, the Commissioner of Competition and the Privacy Commissioner must consult and coordinate with each another to regulate commercial conduct effectively under their respective home statutes (CASL s. 57). CASL also provides that these regulators may disclose information to each other, where it relates to the duties and powers of the regulator receiving the information (CASL s. 58), using it only for CASL-related purposes (CASL s. 59). We also note that Canada is a member organization in the Unsolicited Communications Enforcement Network (UCENET), an international organization with a mandate to share information and intelligence to “identify risk and opportunities for enforcement action and/or prevention.” The Canadian Forum’s Terms of Reference state that information sharing to support CASL enforcement activities will continue to be conducted under the Memorandum of Understanding (CASL MOU) among the CRTC, OPC and Competition Bureau. The Terms of Reference also state that notwithstanding the CASL MOU and enforcement arrangements, Canadian Forum members otherwise agree to “share data and information on work relating to digital markets or platforms that would be of value to the broader group,” such as “within their existing authorities and where appropriate, […] information about enforcement activities that relate to the shared regulatory mandate of Members, with the aim of raising mutual awareness and promoting cooperation in the activities of Members.”
- Will cross-border collaboration among regulators lead to more coherent legislation? Important elements of domestic copyright laws frequently flow from international treaties (e.g., the Berne Convention, the WIPO Performances and Phonograms Treaty), leading to structural and substantive similarities in the ways signatory/implementing countries protect and administer copyright. In other words, many important principles and decisions about protecting rights, and the nature and scope of those rights, are made at the international level and trickle down to domestic copyright laws. That is not necessarily the case in other areas of the law applicable to digital markets and platforms, such as competition and digital content laws. Regardless, there are examples of Canadian and international cross-pollination. These include Canadian digital laws clearly modeled on the laws of other countries, for example, Canada’s Online News Act and Australia’s News Media Bargaining Code (see the Department of Canadian Heritage comparison grid between these). It remains to be seen whether the increased collaboration among digital regulators leads to more convergence on recommendations for legislative reform.
For more information on this topic, please contact the author, Margot Patterson.
