The Canadian Radio-television and Telecommunications Commission issued a notable decision last month involving the creation of an annual digital media survey that likely provides an advance preview of how it will address Bill C-11 if it becomes law. That is a cause for concern, since the Commission apparently sees few limitations in its powers despite obvious doubts that it is operating within the boundaries of existing law. Those powers, which will be increased should Bill C-11 be enacted, lead to its position that any broadcasting from anywhere in the world is subject to its jurisdiction so long as there is a Canadian nexus to the activities. There is no requirement that the service be located in Canada in order to qualify and little practical guidance on what constitutes a Canadian nexus.
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CRTC Calls for Increased Powers To Take a More “Interventionist” Approach on Internet Content
Last month, I appeared before the Senate Standing Committee on Legal and Constitutional Affairs to discuss Bill S-210, a bill that aims to limit minors’ access to pornography sites by implementing age verification and website blocking requirements. I warned that face recognition technologies, which are often used for age verification, raise serious privacy risks and that website blocking would have negative consequences for freedom of expression. Further, I emphasized how incredibly broadly the bill is drafted. While the Senators were focused on some well-known pornography sites, widely used sites and services such as Twitter or Reddit are also captured by the bill, raising the possibility of age verification to send a tweet or read a Reddit post.
The committee’s study of the bill continued yesterday with an appearance by Scott Hutton, the CRTC’s Chief of Consumer, Research and Communications. While Hutton emphasized there were no easy answers and that net neutrality principles would likely preclude action with respect to content regulation under the Telecommunications Act, his responses to some Senators reinforce concerns that should Bill C-11 pass, the Commission will be in the Internet content regulation business through the Broadcasting Act. Indeed, while Canadian Heritage Minister Pablo Rodriguez and the CRTC have sought to downplay concerns that the CRTC would seek to regulate online content, Hutton told the committee the Commission needs more power in order to adopt a more interventionist approach:
Bill C-11’s Foundational Faults, Part Two: The Regulate-It-All Approach of Treating All Audio-Visual Content as a “Program”
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.
Bill C-11’s Foundational Faults, Part One: The Nearly Unlimited Global Reach of CRTC Jurisdiction Over Internet Audio-Visual Services
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.
The Law Bytes Podcast, Episode 108: Scott Benzie on How Bill C-10 Ignored Canada’s Thriving Digital First Creators
The Canadian digital first creator economy isn’t something that politicians or policy makers seem to know much about, but they are quick to propose legislative reforms that directly implicate it, most recently in the form of Bill C-10. Yet the sector is thriving, with Canadian stars earning millions of dollars and attracting global audiences that often exceed Canada’s conventional film and television sector.
Scott Benzie, the CEO of Buffer Festival, started in traditional media but now advocates and works with creators, platforms and industry around online content. He joins me on the podcast to discuss the current state of digital first creators in Canada, their omission from the Bill C-10 process, and the formation of Digital First Canada, a new advocacy group to better represent the needs of the community.
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