so what now? by Andrew Fleming (CC BY-NC 2.0)

so what now? by Andrew Fleming (CC BY-NC 2.0)


Senate Committee Completes Its Review of Bill C-11: What Comes Next?

The Senate Standing Committee on Transport and Communications completed its extensive review of Bill C-11 last week. After a review for grammatical, editorial, and translation issues, the committee is expected to finalize its report back to the Senate later today. While the next steps for Bill C-11 remain somewhat uncertain, the committee should be congratulated for providing a model for legislative review. Indeed, the Senate committee was everything the House committee was not: policy focused, open to hearing from a wide range of witnesses, and willing to engage in meaningful debate on potential amendments. Politics occasionally arose during the clause-by-clause review, but political considerations were never going to be entirely stripped from a highly politicized piece of legislation.  

I may have missed the odd change, but the following amendments were approved by the committee:

  • Added amendment to Section 4.2.2 designed to scope out user content from CRTC regulation, consistent with the government’s stated intent. Provision now envisions regulation only applying to sound recordings and only those uploaded by the music labels or artists. 
  • Added age verification requirement as a policy objective: “online undertakings shall implement methods such as age-verification methods to prevent children from accessing programs on the Internet that are devoted to depicting, for a sexual purpose, explicit sexual activity” 
  • Added provision blocking CBC from running “advertorial” (blended advertising and editorial) content (ie. “an advertisement or announcement on behalf of an advertiser that is designed to resemble journalistic programming”) 
  • Amended provision on programming objective that community participation counter “disinformation” with “through community participation, strengthen the democratic process and support local journalism.” 
  • Removed clause 7, which critics warned undermined the independence of the CRTC
  • Removed the CRTC power to order “the proportion of programs to be broadcast that shall be devoted to specific genres, in order to ensure the diversity of programming”
  • Harmonized definition of “decision” with Telecommunications Act
  • Changed definition of “community element”
  • Added a right of privacy and a requirement (5(2)(g) of protecting privacy
  • Added “promote innovation” as a policy objective
  • Added creators to “the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings” (ie. Enjoyed by broadcasting undertakings and creators)
  • Added “Black and other racialized communities” wherever the term “racialized communities” appears
  • Added “indigenous languages” and “reflect the importance of Indigenous language revitalization” to the bill
  • Added “reflect and be responsive to the preferences and interests of various audiences” to the policy objectives 
  • Added provision that the Broadcasting Act should “ensure freedom of expression and journalistic independence” 
  • Removed a change on contributions from Canadian production sector that appeared to downgrade the prioritization of independent production
  • Amended the considerations for the CRTC in establishing regulations for what constitutes a Canadian program
  • Added a provision that no factor is determinative in establishing Cancon standards or equitable contribution rules. Provision designed to provide greater flexibility for the CRTC.
  • Fixed a translation error on minimum Canadian French language productions
  • Added a provision on funding from online companies supporting various policy objectives
  • Added provision to increase public hearings at the CRTC
  • Added requirement that CRTC table its reports in Parliament
  • Applied the Status of the Artist Act to online undertakings

The committee rejected many potential additional amendments, including: 

  • to add a definition for, or multiple attempts to otherwise clarify, discoverability
  • establish revenue thresholds for streaming services 
  • add “consumer interests” to the policy objectives 
  • treat all broadcasting services (domestic and foreign) to the same standard with respect to the use of Canadian talent
  • To require parliamentary approval for various online undertaking policy directives or regulations
  • Add a provision emphasizing market competition and consumer choice (amendment tied 7-7 so defeated)
  • Remove algorithmic manipulation as a means of ensuring discoverability
  • Target revenues from social media platforms to specifically support digital creators
  • Provision to ensure that foreign online services that are required to make payments will also be beneficiaries of funding programs
  • To modernize rules associated with Radio Canada International
  • Publicly report salaries of higher paid CBC personnel

What comes next?

There are procedural steps to come including a final approval of the committee report, report back to the Senate, and ultimately votes at the full Senate. But the big question mark is how the government will react. During the clause-by-clause process, there were amendments that it supported and others that it opposed (yet those passed with the support of Conservative and independent Senators). The government could try to remove those amendments while still at the Senate at third reading. That would be a major rebuke to the committee and the Senators who worked extremely hard to improve the bill, but would allow for Bill C-11 to return to the House of Commons in a form the government supports. Alternatively, the bill as amended may be approved by the Senate and returned to the House, where the government can choose to simply agree to the changes and move on or it could vote to remove some amendments and send it back to the Senate yet again.

Canadian Heritage Minister Pablo Rodriguez has been cautious about not tipping his hand. However, if the government is serious about its repeated assurances that it is open to improving the bill, dismissing the amendments that are broadly consistent with the government’s stated objectives should be a non-starter. There are outliers – age verification and the CBC regulation among them – but the amendments addressing the most contentious issues such as user content regulation and CRTC independence are genuine improvements. If the government rejects even those amendments, the signal will be unmistakable. Notwithstanding claims to the contrary, creating a framework for regulating user content and asserting greater government control over CRTC rulings are not an unintentional consequence of Bill C-11, but rather the government’s objectives for the legislation.