Canadian Heritage Memorandum, December 8, 2020, ATIP A-2020-00498

Canadian Heritage Memorandum, December 8, 2020, ATIP A-2020-00498

News

Not Just Big Tech: Government Memo Shows Bill C-10 Targets News Sites, Podcast and Workout Apps, Adult Websites, Audiobooks, and Sports Streamers for CRTC Regulation

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:

Video

  • Netflix
  • Disney+
  • Amazon Prime
  • Crave
  • Apple TV+
  • Club Illico
  • CBC Gem/ICI Tou.TV
  • CBS All Access
  • Hayu
  • Shudder
  • Britbox
  • 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)

Sports

  • MLB.TV
  • NHL.TV
  • Sportsnet Now
  • DAZN
  • TSN/RDS Direct
  • TVA Sports Direct

Audio

  • Spotify
  • Apple Music
  • Amazon Music
  • Google Play Music
  • Deezer
  • QUB Radio/Musique
  • Slacker
  • Tidal
  • Qubuz
  • YouTube Music
  • CBC/RAdio Canada Music and Podcasts
  • Stitcher
  • RadioPublic
  • Pocket Casts
  • Castbox

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.

A-2020-00498 Heritage c10 D… by michaelgeist

27 Comments

  1. This government has delusions of grandeur – they think they can regulate any site they want and make them fund Canadian content. What are they going to do when the BBC and the NY Times laugh at them and tell them to take a hike? Call them immoral and threaten to cut off their supply of Schitt’s Creek. It would be funny if it wasn’t so pathetic.

  2. I don’t think they understand exactly how the internet works….

  3. I really do think that this will fail epically on the first court challenge. Not to worried. It will go away as soon as someone with balls decides to take it on.

    • That line already started forming, with our host among others in its ranks. I’ve sent e-mails of concern to my MP but I’m not sure that they understand the reasoning behind my concern as yet.

      • Good to know, There are so many other more important things to be worrying about it just goes to the infinite stupidity of our elected leaders when they choose to focus on this nonsense… seems they just want to piss us all off.

  4. Reading Absurdities says:

    The laws of the U.K. may prevent Canada from regulating London’s media. There is no digital Canadian border, so to make these changes Canada would need to create a digital border with a Great Firewall, like China’s. Canadians would have to be prevented from watching any international broadcaster refusing to add Canadian cultural/electronic imperial content in their domestic market. That doesn’t regulate broadcasters, it regulates what you’re allowed to see.

    I’m curious; if you make a sextape once a week, will that be regulated by the CRTC as your regularly scheduled programming? If only you are Canadian, and your partner/s aren’t, is that still Can-Con compliant? How much of your intercourse has to be in French?

    Many of the services will find a way to continue being seen in some form within Canada through teams of lawyers or regulatory capture. I’m glad that “Big Tech” has remained virtually silent against Big Government, leaving Canadians to decide our own laws, but they’re also not defending our rights, abandoning us. In case the law passes regardless of what Canadians want, we should start thinking now of ways to circumvent the usual WWW services with peer-to-peer broadcasting.

    • It would be more effective to boycott. Presently, there’s no damage to anyone’s bottom line. In reality, no one’s even really taking a stand.
      The problem is to effect real change one has to be willing to forego something themselves. If no one can be bothered to do so then everyone’s rights will be affected. It doesn’t take many to do this. Just enough. And for just long enough. It doesn’t have to be illegal. it just has to *hurt*.

  5. So is the CRTC going on a hiring blitz to get enough employees to do all this regulation? Whose going to pay their salaries? That’s assuming this is even possible, which it isn’t.

  6. Person in the woods says:

    Please post the briefing note.

  7. Contard101 says:

    all these hyperboles but not even MIchael giestss can tell me when I post my cat video, how exactly is the bill going my vid?

  8. > “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.

    This doesn’t seem to be true true. From the bill:

    > (3) Section 2 of the Act is amended by adding the following after subsection (2):
    Exclusion — carrying on broadcasting undertaking
    > (2.‍1) 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.

    My reading says that individuals are explicitly not regulated by this bill. What am I missing?

    • Section 2.1 exempts users from regulation, but not their content. Section 4.1 exempted the content, but it now has been deleted.

    • It can target any user generated content so basically, anyone on a site like youtube with a big amount of subscribers could be subject to this regulation. basically people like Linus (12M subscribers) or Boogie (4M subscribers).

      It doesn’t block content directly but because it can allow the CRTC to force Facebook to prioritize Canadian content (such as newspapers), it has the power to control what Canadians can see on social media through the platform.

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  10. Dr. Mongo says:

    Thank the Canadian idiots who voted Liberal.
    Thank a teacher for creating these low information voters.

    • More transparency at this time with Covid-19 really wouldn’t be healthy for all those weak and sick people out there. It’s too much to bother them with.

      Though I did hear the Liberals are designing a ‘Re-opening 2.0 Mask’, once Covid is gone. Since we can breath normally by then, instead of the mouth it covers ones eyes and plugs your ears with soothing Trudeau apologies. Perfect for this government really.

  11. You can be absolutely sure the great firewall is coming, control of information is critical to the great reset.

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  14. And this is where the socialist party took over..

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  16. Isn’t it time to ditch this never ending, money pit of cancon / protectionism / handouts?

    Isn’t time, once and for all, to let canadian culture fly of it’s own “wings” like an adult?

  17. As they say, never let a pandemic go to waste. Hence, Trudeau and company taking advantage of the opportunity to try to reshape and create a new normal.

    Thank you Michael for keeping us informed about this.

  18. Sorry to reply to last week’s post, but it was as prescient as Mr. Geist usually is.

    A Senate committee today discussed Bill S-203, whose author claims it regulates internet providers, requiring them to block pornographic websites, until provided with age verification of the viewer. The credit card or bank account of the buyer paying the ISP isn’t enough, it’s the viewer. That doesn’t regulate the ISP, it regulates us.

    Technical methods were offered, like requiring ID be presented to a database registry of all Canadians who want to view pornography. Or age-guessing facial recognition via a webcam, to watch people “consuming pornography”.

    I’m not joking; the name above is a link to the National Post article. Encrypt everything and get a VPN. This government has no idea how computers work, or what the internet is, or what your rights are. They don’t care about us, and they’ve gone voyeuristically insane.

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