My initial post on Bill C-11, Canadian Heritage Minister Pablo Rodriguez’s follow-up to Bill C-10, focused on the implications for user generated content. That post – along with this week’s Law Bytes podcast – notes that despite assurances that regulating user generated content is off the table, the reality is that the bill leaves the door open to CRTC regulation. Indeed, the so-called Online Streaming Act features an exception that means everything from podcasts to TikTok videos fit within the CRTC the power to regulate such content as a “program”. While this issue will rightly garner significant attention, it is not the only fault that lies at the very foundation of the bill.
One of the most troubling aspects of Bill C-11 is the virtually limitless reach of the CRTC’s jurisdictional power of audio-visual services. As discussed during the C-10 debate, an internal government memo identified a wide range of sites and services potentially covered by the legislation. Given that the approach remains unchanged in Bill C-11, the scope remains the same. The memo noted that bill could cover 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.
Video games provides another interesting case in point. The government insists that video games are out of the bill, though they are clearly part of it as currently drafted and a policy direction will be needed to exclude them. But even if that is forthcoming, services such as Twitch which involve live streams of gameplay are surely covered the bill. Given its user base, it would stand a good chance of facing a full set of CRTC regulations, including registration, mandated contributions, and conceivably discoverability requirements for Canadian gamers whose game playing videos will be considered “programs” under the Act.
The bottom line is that the potential scope for regulation is virtually limitless since any audio-visual service anywhere with Canadian subscribers or users is caught by the rules. Bill C-11 does not contain specific thresholds or guidance. In other words, the entire audio-visual world is fair game and it will be up to the CRTC to decide whether to exempt some services from regulation.
Supporters of the bill will likely argue that the CRTC will establish some thresholds where regulation would not advance policies under the Broadcasting Act. Yet even that approach assumes that the CRTC has jurisdiction over all services and that it has also the power to exempt some from regulation. That will be news to many foreign services with a modest Canadian presence or services that operate well outside the film and television streaming world. The likely result is that many services may choose to block the Canadian market entirely, resulting in less consumer choice and higher costs. The blocking may be particularly acute for multicultural programming, leaving many Canadians without access to services they have come to rely upon.
This is no small issue. Consider the list of services mentioned in the government memo:
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
Notwithstanding the headlines, Bill C-11 is about far more than just Netflix or Youtube. In many ways, the bigger story is the assertion that the CRTC has jurisdiction over hundreds of audio-visual services worldwide and envisioning the possibility of regulating everything from audio-books and podcasts to workout videos and e-sports.
This is of course absurd, and you just have to wonder why? The excuse that the people responsible for this crap ‘don’t understand the Internet’ doesn’t work anymore, the government is not a bunch of Boomer stereotypes. They understand it fine, they just…hate everything about it? What? What are they doing?
This is of course absurd, and you just have to wonder why? The excuse that the people responsible for this crap ‘don’t understand the Internet’ doesn’t work anymore, the government is not a bunch of Boomer stereotypes. They understand it fine, they just…hate everything about it? What?
sorry ’bout the double posts…
PLEASE PLEASE PLEASE FIGHT THIS … WE DO NOT NEED THE GOVERNMENT TO CENSOR US EVEN MORE AND DICTATING WHAT WE CAN WATCH/DO ONLINE. THIS IS ANOTHER ‘OVER REACH’ OF THE TRUDEAU GOVERNMENT. I REMEMBER HE SHUT DOWN PARLIAMENT LAST TIME HE TRIED TO GET THIS PASSED….. PLEASE VOTE NO NO NO NO
I remain curious how any of this withstands a constitutional challenge. Actual broadcasting over the airwaves created a federal responsibility because physics ignores political borders, both provincial and international. Just because these services compete in some way with actual broadcasting does not create such a federal requirement, any more than cinemas competing with television stations overrides the provincial domain of regulating movies.
That very point – that the provinces currently regulate visual content in cinemas – suggests that any regulation of otherwise legal content in streaming services is a provincial responsibility. If the content triggers criminal concerns, *that* would shift to federal involvement.
But as it appears to stand here – the moment this legislation moved beyond broadcasting over the airwaves, it would appear to be trying to take on a provincial responsibility.
(This was already brought up the last time this bill hit the Senate, See https://www.michaelgeist.ca/2021/06/this-bill-reminds-me-of-the-maginot-line-the-bill-c-10-debate-arrives-at-the-senate/ and read Senator Simons’ speech)
“I remain curious how any of this withstands a constitutional challenge”
Well, is it just a negotiating tactic? Ask for something completely insane and then negotiate enough carve-outs for this interest group and that so no one with any resources will actually challenge it?
The challenge with that approach is that you don’t know if you are negotiating with all the right groups.
If it is unconstitutional at the top, *everything* in the bill falls away. It would appear to completely block the CRTC from touching any of these services. So one of those groups might decide to just wait to see if it passes – and if it does, then take out the whole thing.
Court cases are not cheap, but I could easily see even a moderately sized company deciding the upside of a win is more profitable than any CRTC regulatory structures.
The other concern would be that – given the wide-ranging nature of the potential regulation – there are a LOT of entities who could claim standing to launch such a case. It doesn’t even need to be a company – a pub;lic interest group could fill that role easily.
I do find it interesting that this did not appear to come up in committee last year. This suggests that all the parties want regulation – they just disagree on the details. It should fall to the opposition to raise all reasonable concerns with the bill. At least – that’s what I think the Opposition should be doing. I am curious if it is essentially not being raised because anyone with a reasonable understanding of federal/provincial segregation of duties thinks the bill would be indefensible on that point.
“I do find it interesting that this did not appear to come up in committee last year. This suggests that all the parties want regulation – they just disagree on the details.”
Based on my experience participating in a Copyright Board process back in the early ’00s, the different groups (officially) don’t give a crap about any basic bigger issues as long as they get theirs. It’s pretty disheartening to see how the sausage gets made, and you know even if this fails someone is going to bring it back, again and again until something sticks.
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