The Broadcasting Act Blunder series yesterday covered claims by Canadian Heritage Minister Steven Guilbeault that the bill contains significant economic thresholds as a guardrail against over-regulation. 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).
Guilbeault also told the House of Commons that news is excluded from his bill:
Bear in mind that we are imposing a number of guardrails. As I said earlier, user-generated content, news content and video games would not be subject to the new regulations.
Guilbeault may have been thinking about the controversy earlier this year when he said regulating news sites “was no big deal”, but this is inaccurate as the bill does not exempt news. Unless exempted by the CRTC, that would mean that news sites that rely on video or audio would be caught by the bill. It is worth noting that even some Internet video streaming services such as Amazon Prime already feature news programming.
Why are online sites and services that offer news in video or audio form captured by the bill?
Online undertakings are defined in the bill as “an undertaking for the transmission or retransmission of programs over the Internet for reception by the public by means of broadcasting receiving apparatus.” In other words, transmitting programs over the Internet makes you an online undertaking. The Broadcasting Act defines a program as:
program means sounds or visual images, or a combination of sounds and visual images, that are intended to inform, enlighten or entertain, but does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text
So long as the news is not predominantly alphanumeric text, it is treated as a program under the Act and online undertakings that transmit programs are subject to regulation. The CRTC has played a role in regulating news for conventional broadcasters including ensuring broadcasters participate in codes of conduct and meet their news broadcast obligations. By treating online undertakings, programming undertakings (ie. conventional broadcasters), and distribution undertakings (cable and satellite) all as broadcast undertakings, the regulatory framework applies.
Bill C-10 includes a specific exclusion for user generated content, but does not contain a specific exemption for news content nor has the government indicated that intends to issue a policy direction to that effect (they have said they will do so for video games). The Canadian Heritage departmental information includes an FAQ that says news sites that do not predominantly display text are not captured by the Act. What that doesn’t say is that those news sites and organizations that rely on audio and video will be regulated by the new Broadcasting Act. Further, the FAQ says the bill does not licence news organizations. While it is true that there is no licence requirement, that is because there is no licence requirement for online undertakings. Those entities – including video news sites – will be required to register with the CRTC, likely be required to provide confidential business information, and potentially required to meet discoverability requirements to make Canadian content more visible.
The potential scope of news sites regulation is vast, covering everything from the Rebel (which sells video subscriptions) to podcast networks like Canadaland. The law also applies to foreign sites, raising the possibility that sites with considerable audio and video and significant Canadian subscribers such as New York Times could be captured as well. As with economic thresholds, it will be open to the CRTC to decide what obligations online undertakings should face with regard to news or to potentially exempt some of these services. However, as it stands now, Guilbeault is incorrect when he claims that Bill C-10 excludes news since the bill opens the door to regulation and creates uncertainty by leaving it to the CRTC to determine precisely what regulatory obligations or exemptions might apply.