The Broadcasting Act Blunder series has focused for the past two days on inaccurate claims from Canadian Heritage Minister Steven Guilbeault that the bill contains significant economic thresholds as a guardrail against over-regulation and excludes news from its ambit. As I noted, the bill does no such thing, though the CRTC will be able to establish regulatory exemptions once it conducts extensive hearings on implementing the legislation should it pass (prior posts in the Broadcasting Act Blunder series include Day 1: Why there is no Canadian Content Crisis, Day 2: What the Government Doesn’t Say About Creating a “Level Playing Field”, Day 3: Minister Guilbeault Says Bill C-10 Contains Economic Thresholds That Limit Internet Regulation. It Doesn’t, Day 4: Why Many News Sites are Captured by Bill C-10).
One type of service that is narrowly exempted from the new regulation in Bill C-10 is user generated content services, referred to in the bill as social media services. The bill states:
This Act does not apply in respect of
(a) programs that are uploaded to an online undertaking that provides a social media service by a user of the service – who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them – for transmission over the Internet and reception by other users of the service; and
(b) online undertakings whose broadcasting consists only of such programs.
(2) For greater certainty, subsection (1) does not exclude the application of this Act in respect of a program that is the same as one referred to in paragraph (1)(a) but that is not uploaded as described in that paragraph.
The bill also states:
A person who uses a social media service to upload programs for transmission over the Internet and reception by other users of the service – and who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them – does not, by the fact of that use, carry on a broadcasting undertaking for the purposes of this Act.
While the government’s intent to exclude user generated content and user generated content services from the legislation makes sense, Bill C-10 once again generates considerable uncertainty. The term “social media service” appears several times in the bill, but is never actually defined. The CRTC may provide additional colour on the scope of the term under the law, but the failure to even offer a definition is problematic.
Moreover, the bill effectively establishes three exclusions: the programs that are independently uploaded by users, the users themselves when they upload a program on a social media service, and online undertakings that only feature user-uploaded content. Excluding individuals and their uploaded content is unsurprising, but the third exclusion is practically useless given that few sites are limited exclusively to user-uploaded or generated content. In fact, even those sites focused on user-generated content may have business models that evolve over time with the prospect of adding subscriptions or other curated content.
The government’s position appears to be that those services do not qualify for the exemption since the exemption only applies to “online undertakings whose broadcasting consists only of such programs.” For the majority of sites and services – even those who feature some user generated content – there will be the prospect of facing the full regulatory model that includes registration, discoverability requirements, and even mandated payments. Yet again, the CRTC could exempt some of these sites and obligations, but Bill C-10 leaves open the possibility of extensive regulation, which may result in sites blocking the Canadian market for fear of facing new regulations. Rather than promoting innovation, greater choice, and new services, Bill C-10 discourages it.