Implementing Canada’s Online Streaming Act: The CRTC is Fast Out of the Gate

Credit: Author

Just days after Canada’s controversial Online Streaming Act (aka Bill C-11) finally cleared Parliament and was proclaimed law, the CRTC (Canadian Radio-television and Telecommunication Commission), the regulatory body empowered to implement the widespread changes to the Broadcasting Act encompassed by C-11, seized the initiative. First out of the gate was a “Myths and Facts” page to debunk some of the misinformation spread about the bill. The “myths” included claims the CRTC will regulate content and digital creation while exercising jurisdiction over social media users and content generated by them. Along with rebutting these claims, (a person who uploads content to a social media platform is not a broadcaster) the Commission denied it has been given authority to censor what consumers watch, read or listen to online or to regulate the algorithms or prices of online streaming services, nor will it regulate online video games. The broad intent of the legislation is to regulate online streaming services as broadcasters, with detailed implementation left to the CRTC.

As the legislation worked its way through Parliament, there were criticisms as to what it would lead to, particularly whether the Act empowered the CRTC to regulate user-generated content when implementing the objective of increasing the “discoverability” of Canadian content. That morphed into ridiculous accusations that C-11 would implement censorship, with government bureaucrats telling people what to read and creators what to write. Comparisons were even made with the Soviet Union and North Korea, including by people who should have known better like respected author Margaret Atwood, even though she later admitted she had not even read the Bill.

After tackling the misinformation that is out there, the Commission’s next move was to issue a road map for the consultations that are to come, as well as an information bulletin outlining transition provisions as new regulations are implemented. The roadmap is a regulatory plan that breaks the consultations into three phases, beginning immediately. Phase 1 will involve three separate proceedings; 1. Consultation on contributions to the Canadian broadcast system (to consider who should contribute, how much and how), 2. Consultation on registration of online streaming services (which online streaming services will need to be registered with the CRTC), 3. Consultation on exemption orders and basic conditions of service (what changes are needed to update the orders under which online services have operated in the past). Each of these proceedings is backed up by a Notice of Consultation document, referenced above, calling for submissions by June 12, 2023 (June 27 in the case of the consultation on mandatory contributions), with final replies to any comments raised during the consultation period to be filed by July 12. All of this will lead to a public hearing beginning in Ottawa on November 20. There will clearly be no summer leave for CRTC staff this year. Intervenors will also need to go into high gear quickly. The documents are detailed; for example, the consultation on who should contribute, and how, to the Canadian broadcast system runs some 30 pages and poses 39 specific questions of intervenors.

Phase 2, which will take place in the fall and winter of this year and in early 2024, will include the public consultation, as well as publication of an updated Regulatory Plan and engagement on definitions of Canadian and Indigenous content. These preliminary engagement sessions with industry and creators are to help design the approach for a full and separate public consultation to include the all-important issue of how to define what constitutes Canadian content (CanCon). This is one of the most fundamental issues the CRTC has to tackle as I discussed in a blog posting earlier this month (“Canada’s Online Streaming Act (Bill C-11) is Now Law: What Happens Next?). The consultation document on contributions to the Canadian broadcast system notes (in para. 18) that many of the current funding programs that support the creation of Canadian content are not available to international online undertakings, yet they will be required to contribute to them. The new contribution framework will need to consider, therefore, how to ensure equitable treatment between domestic and international online undertakings in supporting the creation of Canadian and Indigenous content.

Phase 3 will mark the launch of the new regime, supposedly toward the end of 2024.

This is a very ambitious blueprint from an organization that is not exactly known for being nimble. If anything, the CRTC is viewed by some as an overly bureaucratic entity subject to regulatory capture by the industry it regulates. It has an extremely broad mandate, covering not just broadcasting but also telecommunications, and the “to do” list mandated to it by C-11 is extensive. Rather than being prescriptive, the Online Streaming Act gives the Commission wide scope to implement the basic principles outlined in the legislation. The government has announced that it will be issuing a Policy Directive to the CRTC to guide it during the implementation phase. That has not yet been released so it is all the more remarkable that the Commission has been so fast out of the gate. This no doubt reflects two things; new energy and direction from Chair Vicky Eatrides, appointed in February of this year, and the election timetable.

Eatrides, a lawyer by training, held senior positions in the Competition Bureau before being named CRTC Chair this year. Her marching orders were clear. The announcement of her appointment noted that the Commission was “facing waning trust” and needs to up its game in the following three areas; “Timeliness of decision making; Accessibility of CRTC processes to the public, non-corporate interest groups, and civil society; Openness and transparency”. The new Chair is demonstrating that she got the memo. The second consideration is election timing. If the current Supply and Confidence agreement with the New Democratic Party (NDP) holds through the full term of this government, the next election must be held by October 2025. The opposition Conservatives, who are currently polling strongly, have vowed to repeal the Online Streaming Act, claiming it is the “Liberal Censorship Act”. The Trudeau government needs to ensure that the new regime is fully implemented and operative by the time of the next election to forestall this possibility. Once implemented, it would be extremely difficult, costly and probably counter-productive to try to dismantle.

It is encouraging to see the CRTC step up and engage quickly. They have a gargantuan task on their hands and the clock is ticking. Broadcasters, both traditional and online, will want to know the rules of the game and nature of the playing field as quickly as possible. It will be a busy summer.

© Hugh Stephens, 2023. All Rights Reserved.

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