July 15, 2024
What to expect as Liberals’ online streaming bill nears becoming law

Critics say a government regulator has no business picking and choosing what content Canadians are presented with when they use a digital service

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It’s taken the Liberal government two tries and more than two years to get Bill C-11 through the legislative process. If the Senate doesn’t fight the government on removing a number of amendments senators previously added to the bill, Bill C-11 could receive royal assent shortly after Parliament comes back from break next week.

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But once the bill is law, that doesn’t mean we know how the government will actually regulate online streaming, whether it’s from big studio content to homemade video blogs . It actually means the work on the specifics is just beginning.

Bill C-11 sets up the CRTC to regulate streaming platforms like Netflix and YouTube. The idea is that under the new rules, they’ll have to participate in the Canadian content system the way traditional radio and TV broadcasters and cable providers have had to.

Digital platforms are now exempt from that system, which requires broadcasters to spend 30 per cent of their revenue on Canadian content, and cable and satellite TV providers to contribute five per cent of their revenues.

The legislation doesn’t get into the details of how the CRTC will bring digital platforms into the system, but the Liberal government will provide more specifics in a document called a policy direction.

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The government could use the policy direction to address the most controversial parts of the bill, namely the powers the CRTC will have over user-generated content, such as videos posted on YouTube or TikTok by digital creators and everyday Canadians.

Does it mean the government will tell the CRTC to regulate — or not regulate — user-generated content?

We don’t know yet.

The government isn’t releasing the policy direction until after the bill becomes law. Laura Scaffidi, a spokesperson for Heritage Minister Pablo Rodriguez, said the government wants “to work in collaboration and will consult with all interested stakeholders before issuing a policy direction on Bill C-11 to the CRTC.”

For the first version of the bill that died on the order paper when the 2021 election was called, the government did release a draft ahead of time. It told the CRTC to ensure digital platforms “contribute appropriately” to support and promote Canadian programming and Canadian creators.

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That was before the government removed the original exemption for user content from the bill, sparking a wave of controversy which slowed down the passage of the legislation for two years.

So it will be important to watch this time what the policy direction has to say about user content.

Under the bill as it stands, the CRTC won’t have the power to control what Canadians post or choose to watch online. But it will have regulatory authority over recommendations — the movies, TV shows, videos and music platforms like Netflix, YouTube or Spotify suggest to their users.

The idea is that the CRTC will use that power to force platforms to promote what it desires to be Canadian content, ensuring that it is more easily discoverable by users.

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The government could use the policy direction to exempt user content from those discoverability rules. Some prominent Canadian YouTubers have objected to the prospect of Ottawa influencing discoverability.

An amendment to the Senate added to the bill would have excluded social media content, but that was rejected by Rodriguez. The government said at the time it rejected the amendment because it would have affected the government’s ability to “publicly consult on, and issue, a policy direction to the CRTC to appropriately scope the regulation of social media services with respect to their distribution of commercial programs .”

Scaffidi said in the statement: “User-generated content uploaded onto YouTube will not be captured by this bill. Only platforms that broadcast commercial content are in scope.”

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What’s the problem with the CRTC forcing platforms to highlight Canadian content?

Some opponents point to freedom of expression concerns and say a government regulator has no business picking and choosing what content Canadians are presented with when they use a digital service.

Several prominent creators have said they are worried that it will harm digital creators themselves. If the CRTC forces platforms like YouTube or TikTok to highlight their content to users in Canada who aren’t interested in it, the algorithms could then downrank that content globally, which is a market where many make up the majority of their income.

So the CRTC will be meddling with platforms’ algorithms?

Previous CRTC chair Ian Scott has said the regulator could mandate algorithmic outcomes, such as requiring more “Canadian content.” It won’t interfere with algorithms themselves— the bill says the CRTC can’t require the use of a specific algorithm.

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But the idea that a government regulator could look directly at the constantly-changing algorithms used by tech giants, some of which might operate in a black box, and require specific changes in real time, probably isn’t a realistic option.

Do I have any input on all this?

CRTC chair Vicky Eatrides has promised the CRTC will listen to the opinions of Canadians while it considers how to implement the legislation.

The CRTC will launch a public consultation, but it remains to be seen how easy it will be for the public to participate. Asked for more information about what that process would look like, including whether the regulator would take any steps to make it easier for Canadians to take part, a CRTC spokesperson declined comment until the bill became law.

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CRTC proceedings are public, but aren’t always user-friendly. The language can be technical and lawyerly, the website can be confusing to navigate, and the process is often dominated by those used to the environment, such as lawyers working for telecom or broadcast companies or a few specific advocacy groups.

Canadians will have a chance to submit written comments to the consultation. A proceeding of this significance will also almost certainly involve a public hearing. If previous CRTC hearings are any guide, that’s likely to be two or three weeks in which CRTC commissioners gather in a windowless hearing room in Gatineau, Que. to hear from interested parties.

You can expect the proceedings to run the gamut of hours of incredibly technical discussions to potential fireworks between key witnesses and commissioners questioning them.

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A 2014 proceeding looking at the future of TV saw previous CRTC chair Jean-Pierre Blais clashed with Netflix when that company refused to hand over requested information. Industry-watchers (and the assembled media) will be keeping an eye for more dramatic moments between commissioners and platforms resistant to some of the proposed regulations.

So when can we expect all of this to be over?

The previous policy direction told the CRTC it expected the regulator to wrap up the process in nine months — an ambitious timeline given the regulator’s proceedings can take years from start to finish.

But even then, CRTC decisions can be appealed, including in the Federal Court of Appeal. If a party has a problem with the decision the regulator ends up issuing, and its appeal is accepted by the courts, the final outcome may not be settled for years to come.


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