Canadian Heritage Minister Steven Guilbeault has tried to deflect public concern with the regulation of user generated content under Bill C-10 by claiming the intent is to make the “web giants” pay their fair share. Yet according to an internal government memo to Guilbeault signed by former Heritage Deputy Minister Hélène Laurendeau released under the Access to Information Act, the department has for months envisioned a far broader regulatory reach. The memo identifies a wide range of targets, including podcast apps such as Stitcher and Pocket Casts, audiobook services such as Audible, home workout apps, adult websites, sports streaming services such as MLB.TV and DAZN, niche video services such as Britbox, and even news sites such as the BBC and CPAC.
The regulations would bring the full power of CRTC regulation over these sites and services. This includes requiring CRTC registration, disclosure of financial and viewership data, Canadian content discoverability requirements (yes, that could mean Canadian discoverability for pornography services), and mandated payments to support Canadian film, television, and music production. The list also notably identifies potential regulation of Youtube Music, Snapchat Originals, and other social media services whose supposed exclusion has been cited as the rationale to extend regulation to user generated content.
The document was obtained by Postmedia journalist Anja Karadeglija, who first reported it last weekend, focusing on departmental warnings about the importance of excluding user generated content from the scope of regulation in Bill C-10 and the necessity of Sections 2.1 and 4.1 (Section 4.1 was removed by the government). The memo states:
“Social media services like YouTube and Facebook greatly expand the number of individuals and other entities that can be said to be transmitting programs over the Internet. This provides an important limitation on the application of the Act by ensuring that under the Act the CRTC cannot regulate the audio or video communications of individuals (or other entities) simply because they use a social media service.”
The government obviously ignored the warning and removed the limitation. The document continues by identifying a non-exhaustive list of services that “are likely to regulated under the Act.” The department acknowledges that some services may be exempted by the CRTC, though there are no specifics in the bill that identify thresholds for exemptions. Even if exempted, services may still be required to register with the CRTC and provide confidential commercial data in order to obtain an exemption. Indeed, the default approach is that all services are subject to Canadian regulation, leading to a dizzying array of regulated services identified by the department. Those mentioned in the government document include:
- Amazon Prime
- Apple TV+
- Club Illico
- CBC Gem/ICI Tou.TV
- CBS All Access
- Facebook Watch
- Licensed/original content on Snapchat
- YouTube Originals
Online Video Service Bundled With Traditional Broadcasters
- Illico TV
- Bell Fibe TV App
- Shaw BlueCurve
- Rogers AnyplaceTV
- Cogeco TiVO
- Some broadcaster websites (Global, BBC, TVO, CPAC)
- Sportsnet Now
- TSN/RDS Direct
- TVA Sports Direct
- Apple Music
- Amazon Music
- Google Play Music
- QUB Radio/Musique
- YouTube Music
- CBC/RAdio Canada Music and Podcasts
- Pocket Casts
The document also identifies other services such as audiobook service Audible, which the department says “the CRTC could seek to implement a regime where they are required to contribute to Canadian content or creators.” Other potential targets for regulation identified in the document include home workout apps, pornography, as well as “transactional services” such as Google Play, YouTube, Cineplex, PlayStation, and AppleTV.
This document raises many issues. First, contrary to the government’s assertions, Bill C-10 is about far more than Netflix and few large tech companies. For months, the department has maintained an extensive list of regulatory targets from pornography sites to podcast services. These are not big tech companies but could all find themselves subject to CRTC regulation.
Second, as I warned months ago, Bill C-10 covers many news sites. While the memo specifically identifies CPAC and the BBC, 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 obviously also applies to foreign sites as the reference to the BBC indicates, raising the possibility that sites with considerable audio and video and significant Canadian subscribers such as New York Times could be captured as well.
Third, the government has also claimed that video games are excluded, yet the memo identifies apps and Sony Playstation as potential regulatory targets.
Fourth, the inclusion of dozens of sites that have nothing to do with film and television production (sports streaming services) or no real Canadian connection (Britbox) demonstrates how flimsy the claims of creating a “level playing field” are in the context of Bill C-10. Promoting Canadian content on a service expressly designed to provide British content? Requiring a sports streaming service to meet discoverability requirements? Mandating that podcast or home workout apps pay to fund Canadian television shows? The likely result is that services will either block the Canadian market entirely or increase prices by as much as 30 percent as a Canadian regulatory surcharge. Either way, millions of Canadian consumer face the prospect of less choice and higher costs.
Fifth, the department list is a fraction of the potential regulatory target market. If Britbox is a potential regulatory target, so are Molotov, Waave, Zee5, and hundreds of other video streaming services. If Audible is a regulatory target, so are Scribd and Audiobooks.com. If Stitcher and Pocket Casts are regulatory targets, so are Podbean and Overcast. The list goes on and on. Indeed, the potential regulatory scope of Bill C-10 is as large as the Internet and based on this document, that is precisely that Guilbeault and the government have in mind.