My first post in a series on foundational faults in Bill C-11 focused on the virtually limitless reach of the CRTC’s jurisdictional power over audio-visual services. The starting point in the bill is that all audio-visual services anywhere in the world with some Canadian users or subscribers are subject to the Canadian jurisdiction and it will fall to the Commission to establish thresholds exempting some services from regulation. However, even with some exemptions, the Canadian approach will require registration and data disclosures, likely leading many services to block Canada altogether, reducing choice and increasing consumer cost.
The expansive approach in Bill C-11 isn’t limited to its jurisdictional reach, however. Not only does the law have few limits with respect to which services are regulated, it is similarly over-broad with respect to what is regulated, featuring definitions that loop all audio-visual content into the law by treating all audio-visual content as a “program” subject to potential regulation.
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
Program is therefore broadly defined to capture any audio-visual content provided that it is not predominantly text. Bill C-11 then defines broadcasting as:
broadcasting means any transmission of programs – regardless of whether the transmission is scheduled or on demand or whether the programs are encrypted or not – by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place;
In other words, any transmission of programs (ie. audio-visual content) for reception by the public is broadcasting. The definition of broadcasters (called broadcasting undertakings) has been expanded to cover Internet services, which the bill calls online undertakings:
online undertaking means an undertaking for the transmission or retransmission of programs over the Internet for reception by the public by means of broadcasting receiving apparatus
All of this may sound technical, but the bottom line is that the starting point for regulation in Canada is all audio-visual content is now cast as a “program” under the Act. The reality is that the government doesn’t really want to regulate all audio-visual content, however, so it uses the bill to create exceptions, followed by exceptions to the exceptions, and – we are now told – it will be bringing forward exceptions to the exceptions to the exceptions in the form of a policy direction once the bill is adopted.
This legislative pretzel is a product of a bill that flips the conventional approach of regulation. Rather than starting from the premise that Canada only regulates narrowly defined content as broadcasting, the bill starts from the opposite direction by regulating everything and swimming backward. For example, the much-discussed Section 4.1(1), which the government removed from Bill C-10 but has re-inserted in C-11, creates an exception for programs on social media services (ie. user generated content). Leaving aside the fact that “social media service” remains undefined, the bill states:
This Act does not apply in respect of a program that is uploaded to an online undertaking that provides a social media service by a user of the service for transmission over the Internet and reception by other users of the service
Note that this presumes that all audio-visual content posted to a social media service is a program subject to regulation, with the exception is designed to exclude some of that content. However, Section 4.1(2) immediately creates an exception to the exception:
Despite subsection (1), this Act applies in respect of a program that is uploaded as described in that subsection if the program
(a) is uploaded to the social media service by the provider of the service or the provider’s affiliate, or by the agent or mandatary of either of them; or
(b) is prescribed by regulations made under section 4.2.
The regulations in Section 4.2 establishes the requirements for CRTC regulation of the content. While the government insists that this will limit coverage to commercial content, the language in the bill is much broader than that. Moreover, even if limited to commercial content, it would still cover content such as video games or digital first creators. Excluding that form of content will require yet another exception, this time an exception to the exception to the exception that the Minister says will come in a policy direction. Of course, the CRTC will then be asked to interpret the law in light of the policy direction and may well establish regulations that feature an exception to the exception to the exception to the exception given that the cultural lobby will be arguing for the broadest scope possible under the bill. In other words, the government and CRTC’s assurances about excluding some content may mean little if the groups that appear before the Commission loudly insist on ever expansive regulation.
If all of this sounds ridiculous, it is because it is. Other jurisdictions, notably the European Union, actively distinguish between conventional and on-demand broadcasters on the one hand and video sharing platforms on the other. With a clearly defined distinction, there is no need for the Canadian-style layers of exceptions to ensure that individual speech is excluded.
But the problem extends beyond a confusing and uncertain regulatory framework. As Dwayne Winseck notes in his review of Bill C-11:
Philosophically, recasting the entire range of human expression and activity now conducted online through the digital platforms as “programs” seems technocratic. Doing so, wittingly or unwittingly, strips the questions of speech and expression of the normative values that flow out of the long-standing discourse over freedom of expression and democracy. Moreover, and in simple terms, it is unclear what purposes redefining speech and expression in this stunted, technocratic way will ultimately serve. It is worth noting that such efforts to confine the full range of expression into the cramped confines connoted by the concept of a “broadcasting program” is new and seems wrong on the face of it.
Winseck is right. The approach in Bill C-11 is wrong on the face of it. Regulation of speech – which is fundamentally what broadcast regulation involves – should be the exception, not the rule. There is surely a need for some regulation, particularly where broadcast spectrum scarcity limits who can reach a wide audience. Some of those justifications no longer apply in the Internet era, but a modernized framework should not start with the proposition that all audio-visual content is a program subject to regulation and then leave it to the legislator or regulator to determine what might be excluded from that broad approach. Instead, the law should clearly identify what needs to be regulated as broadcasting and maintain that everything outside of that definition falls outside of the Broadcasting Act and government broadcast regulation.