The Quebec government has amended its Internet streaming legislation by removing an exemption for social media services, establishing the most unworkable social media regulation in the world with companies required to meet both French language minimum content quotas and discoverability requirements for user content. I previously argued that Bill 109, which has now completed its clause-by-clause review, is unconstitutional, unnecessary, and unworkable. If enacted into law, it is sure to face a constitutional challenge and the prospect that streaming services such as Netflix and Spotify will either block the Quebec market or be forced to remove considerable English and foreign language content in order to comply. The result will mean less choice for Quebec-based subscribers without any requirements for more Quebec content (the law applies to French language content, not Quebec-based content).

Incredibly, the government, led on the file by Minister of Culture and Communications Mathieu Lacombe, has managed to make an awful bill even worse. During the clause-by-clause review, it approved several changes that establish a virtually unlimited regulatory scope. For example, the original Bill 109 covered:

every digital platform that offers a service for viewing audiovisual content online or listening to music, audio books or podcasts online or that provides access to such a service offered by a third-party platform as well as every digital platform that offers services enabling access to online cultural content determined by government regulation.

Just in case something might still fall through the cracks, the government has amended this provision by replacing “audio books or podcasts online” to “or other audio content.”. In other words, it wants to ensure that any service offering audio or video in whatever digital form now or in the distant future is subject to regulation with French language quotas.

Further, Bill 109’s previous exception for social media has now been removed. The Bill originally stated at Section 3 that “this Act does not apply to social media and digital platforms whose main purpose is to offer Indigenous content.” It also featured a definition for social media as a “digital platform whose main purpose is to allow users to share content and interact with that content and other users.” During clause-by-clause, the government removed the reference to social media in the Section 3 exemption and deleted the social media definition altogether. Lacombe told the committee that it isn’t currently his intent to regulate social media users but that the Quebec government wants to leave open the door to potential regulation if services offer audio or video services. It goes without saying that many social media services already do.

What kind of regulation does the government have in mind?

In addition to registration requirements, the government is establishing discoverability requirements that feature two components: minimum French language content quotas and efforts to make that content easier to discover. The specific percentage for language content quotas would be established by regulation. Lacombe made it clear that both are essential aspects of discoverability: it needs to be easier to discover French language content and there needs to be a minimum percentage of French language content to find.

For curated content services such as Netflix, these requirements are ill-advised by presumably doable. The company already offers easy search functionality for French language content and offers translation into French of thousands of its titles. If the content quotas are too high, the company could exit the market or attempt to meet the obligation by removing content in other languages. Reduced English and foreign language content would help increase the relative percentage of French language content even if the actual amount of it in the catalogue remains unchanged. The same would be true for an audiobook service such as Audible, which might remove titles from its catalogue in Quebec. The likely effect will therefore be reduced choice for Quebec-based subscribers.

But reduced user choice on Netflix and Audible are the best-case scenarios for Bill 109. For services such as Spotify, much of their content is posted by users, whether podcasters or musicians. Meeting a minimum percentage of French language podcasts is seemingly unworkable, since the service doesn’t actually select what podcasts are available on the platform. To meet the legal requirements, it could be forced to block English or foreign language musicians or podcasters to meet the required percentage. The result would be less choice and arbitrary removal of content, including user generated content.

The law has been made worse yet with the inclusion of social media regulation. It is not clear how Facebook, Instagram, TikTok, or Twitter (X) – all of which easily meet the current requirement of “offering a service for viewing audiovisual content online or listening to music” – would meet minimum language content requirements when virtually all of the content found on the platform comes from users. For example, TikTok could display more French language videos to its users but how does it ensure that the total percentage of videos on the entire platform meets a minimum French language quota? These companies do not post or curate the content but would be forced to intervene to somehow meet a minimum French language content requirement.

Lacombe has left himself an out by leaving the specific content quotas to regulation and including provisions that permit the government to strike private deals with individual services (Canadians know how well that worked out with the Online News Act). But the starting point for regulation or negotiation may leave some companies ready to walk away from the province altogether. As far as I can tell, there is no jurisdiction anywhere that has tried to regulate social media content by establishing minimum language quotas for content posted by users. And for good reason: it creates an unconstitutional mess that may give Lacombe and Quebec the distinction of having created the world’s most unworkable and ill-advised attempt at Internet regulation.