How fitting that soon after Groundhog Day we were once again assessing whether Bill C-11, the Online Streaming Act (or the Broadcasting Act reform bill), introduced on February 2, is any better than the one that failed to become law last year. The short answer is that there have been some important improvements made to address critics’ concerns, but there is still a long way to go.
The biggest problem stems from the fact that the bill’s drafters and backers are still trying to see the internet-centric communications and media environment through yesteryear’s broadcasting prism. Moreover, the bill is all about content and says nothing at all, really, about the concentration in digital markets and the surveillance capitalism model that have, in essence, wrecked the internet.
On the surface, the aim of Bill C-11 is to bring influential television, film and music streaming services such as Netflix, Crave, Disney+ and Spotify under the Broadcasting Act and the authority of Canada’s communications and media regulator, the Canadian Radio-television and Telecommunications Commission (CRTC). That was the stated goal of Bill C-10 (an act to amend the Broadcasting Act) and it is still the stated goal of this year’s version. In some ways, it would be easy to say that not much has changed between the new bill and previous versions of it, that is, Bill C-10. And if that were the case, then I could just send you off to read what I wrote about the last version (see here and here). That would be too easy, not least because there are three important improvements to what was previously on offer, but also because there is a basketful of problems held over from the last bill, and some new ones thrown in just to make things interesting.
First, the headline change is that Bill C-11 restores the explicit exemption for people who use social media services from its — and the CRTC’s — reach (section 2.1) and for the content (redefined as programs) that they upload to such services (section 4.1). On the surface, this move responds to the firestorm of criticism that was ignited around questions of free speech when a similar clause was removed midway through debates over Bill C-10 (also see Michael Geist on this point).
The technical briefing notes distributed by Canadian Heritage emphasize the point: “Regulation will not apply to individual creators, streamers or influencers or social media services themselves in respect of the amateur programs posted by their users” (Canadian Heritage 2022, 8, emphasis in original).
Second, the bill does not make social media services responsible for the content people make available through online services (but see the exceptions below) (section 2.2). Bill C-10 had no such measure and some groups, such as Friends of Canadian Broadcasting, among others, have been pushing the idea that platforms should be responsible for people’s expressions on their services, just like broadcasters are responsible for the editorial choices they make and the content they commission. In other words, while social media companies might be media companies — rather than just “mere conduits” or platforms — they are not broadcasters, with all the means to exercise control and responsibility over what people do and say on their services.
This is a good thing. It is an important improvement because it minimizes concerns that making Facebook, Twitter, TikTok, YouTube, etcetera, responsible for what people using their services do or say could have a chilling effect. Had the alternative path that some were recommending been taken, such services would have been keen to avoid liability for what their users say and do on their platforms. This, in turn, would have given these services strong legal and business incentives to quickly take down risky speech rather than just speech that is not protected by the Charter of Rights and Freedoms. Doing so would not just minimize their risk but also minimize costs and be good for business.
Online streaming services such as Netflix, Crave, Amazon, Disney+ and Spotify, however, as online broadcasting undertakings (see below), will be responsible for programs commissioned by or distributed on their services. Conceivably, this would give the CRTC a role vis-à-vis Spotify and the current red-hot controversy over its hosting of right-wing provocateur Joe Rogan (section 4.1(2)). This follows from, as we will see, the fact that Spotify would fit the definition of an online broadcasting undertaking. The upshot is that speech would be regulated in such instances but within an explicitly articulated legal and regulatory framework and against the backdrop of the Charter protections for freedom of expression and the press.
I believe that this approach will be helpful. It democratizes decisions that are now the exclusive prerogative of massive international businesses who, in many cases, have no ties or particular obligations to the citizens and people who live in the countries they serve and who feel the brunt of the decisions they make.
This points to the third major improvement in the new bill over its predecessors, namely, that Bill C-11 now gives pride of place to freedom of expression and values of the free press by putting them at the top of the list of the bill’s objectives (section 3(a)). Given the case just outlined — and the realities of the world around us at this fraught time in the history of democracy, in general, and Canadian democracy, in particular — I believe that this is a very good thing.
The Bad and the Ugly
Although these are significant improvements, there’s much more than first meets the eye. The upshot of these limitations, as we will see momentarily, is that this bill still falls far short of what is needed from the get-go in terms of creating a new set of public interest-based internet services regulation fit for a democracy. This is largely because the regulatory framework the bill proposes still tries to force-fit issues arising from the internet, streaming services and social media platforms into the broadcasting mold. It’s a cramped and poor fit.
The first indicator of this arises in the definitions set out at the top of the bill. First up in this regard is the addition of “online undertakings … for the transmission or retransmission of programs over the Internet for reception by the public” as a new and distinct class of broadcasting undertakings (section 2.(1)). As a result, instead of flexibly tailoring a legislative response to the rise of new and influential streaming audio, television and film services such as Netflix, Crave, Disney+ and Spotify in a manner that reflects developments over the past three decades, the bill tries to bend these new entities and ways of organizing the media business backwards into the definition of broadcasting.
It is also worth noting that, like its predecessor, the bill sweeps a whole new category of media into its ambit: music services. Sure, radio broadcasting is where broadcasting regulation started back in the 1920s and 1930s, but stand-alone music services, record companies and music stores were never covered. This bill would change that.
In simple terms, it is unclear what purposes redefining speech and expression in this stunted, technocratic way will ultimately serve.
Second, while the bill, to its credit, as we saw earlier, explicitly excludes people who use social media from its reach, the act redefines all forms of expression, content and speech that people upload and make available over an online streaming service or social media platform as a “program.” So, while individual social media users will not be directly regulated (but see below), their expressions, pictures, messages, life history and so forth will now be defined as a broadcasting program and, in some cases, regulated as such (see Canadian Heritage 2022, 11). In other words, while individual users (speakers) are out, it appears that the content of their expressions is within the reach of the Online Streaming Act, whereas whether they will be specifically regulated by the CRTC depends on a number of criteria set out in the bill.
The problems in this respect are two-fold: first, this exercise in redefining a wide range of human expression in the confined box of “broadcasting programs” threatens to smuggle in through the backdoor what the bill explicitly says is being excluded: expressions and content that people upload to a social media service. There is considerable slippage between the clear and emphatic statement that social media users will be excluded from regulatory reach, as Minister Rodriquez has said, and the lack of any assurance in the draft legislation that content uploaded by these same users, relabelled as programming, will be excluded. This overly broad redefinition of all audiovisual expressions as programming, in short, needlessly muddies the waters on this issue.
Philosophically speaking, recasting the entire range of human expression and activity now conducted online through the digital platforms as “programs” seems technocratic. Doing so, wittingly or unwittingly, strips the questions about speech and expression of the normative values that flow out of the long-standing discourse over freedom of expression and democracy. Moreover, and in simple terms, it is unclear what purposes redefining speech and expression in this stunted, technocratic way will ultimately serve. It is worth noting that such efforts to confine the full range of expression into the cramped confines connoted by the concept of a “broadcasting program” are new and seem wrong on the face of it.
In other words, while individual users (speakers) are not covered by the proposed law, it appears that the content of their expressions — redefined as programs — is within its reach, but whether it will be specifically regulated by the CRTC depends on three specific criteria set out in the bill. In fact, the new version of the Broadcasting Act reform bill strives to limit the potentially far-sweeping reach of this new definition by being explicit that only programs — that is, all kinds of expression uploaded to a platform — that meet the following three criteria will fall under the reach of the CRTC. The bill states that programs must:
- generate revenue;
- be broadcast or made available on more than one service that is either licensed by or registered with the CRTC; and
- have some kind of an international service identifier tied to it, such as an ISO (International Organization for Standardization) number (section 4.2(2)).
The intent of these criteria is to give the CRTC the tools that it needs to distinguish between the programs that will fall under its authority versus those that will not. The goal is to distinguish between professional, commercially driven media content and content creators versus everybody else who will be left untouched. The distinction itself is consistent with the European Union’s Audiovisual Media Services Directive, which much of this bill’s design and justification rest on, but both these specific criteria and the lines that they are supposedly meant to draw between professional commercial programs and people’s everyday online activities are muddled. Too many conceptual contortions are required just to follow the plot and to serve as a steady guide.
To help assuage such concerns, CRTC Chairman Ian Scott has repeatedly said that the commission has no interest in regulating social media, but he has also prevaricated by pointing to just how broad the existing definition of a broadcast program already is. In other words, Scott is saying that the commission could already do what this bill contemplates but won’t because it doesn’t want to. That is not good enough. His assurances, moreover, ring hollow, given statements made by CRTC Executive Director, Broadcasting, Scott Hutton to the Standing Committee on Access to Information, Privacy and Ethics in 2018 that suggest otherwise.
Once a “program” delivered over the internet meets those three criteria, the specific obligations that an online platform service (online broadcasting undertaking) would have to meet are, as with the last bill, left to the CRTC to decide. Things that it would be able to decide on include:
- the amount of Canadian content in an online streaming services catalogue;
- the amount of money these services would have to invest in Canadian programming; and
- the promotion of accessible programming in English and French and accessibility for people with disabilities (see section 3(4)).
Bill C-11 also extends the CRTC’s order-making power to these online content services (section 7(7)). It would also give the commission the power to impose “administrative monetary penalties” (part II.2).
The major problem in all of this is that Bill C-11, like its predecessor, punts far too much power and rulemaking authority to the CRTC. Moreover, it does so precisely at a time when neither the current chair nor the commission writ large seems to have the resources, inclination or leadership to cover the existing mandate to effectively regulate telecoms and broadcasting in the public interest. Adding additional matters to the CRTC’s remit in this context is inappropriate.
In fact, just as the Liberal government was preparing to reintroduce the new bill, the CRTC had just made a precedent-setting decision that revealed that it has little interest in subjecting the powerful algorithms and artificial intelligence capabilities that Canada’s telecoms operators are already putting in place to greater public oversight. Indeed, as Fenwich McKelvey, Brenda McPhail and Reza Rajabiun observe, the CRTC’s decision in the case slammed the door shut on that prospect while also making it next to impossible for independent scholars to effectively know the crux of the issues at stake and, thus, to effectively participate in the proceeding, period.
Moreover, the CRTC’s ability to take on new tasks is compromised by the fact that its own data on online content services over the past several years has been badly flawed and based on cherry-picked evidence that, in hindsight, has been revealed to be grossly overstated, seemingly as part of its own ongoing campaign to expand its turf in exactly the way Bill C-11 contemplates. The commission has acknowledged as much by restating previous years’ data for several years running now (see Winseck 2021, for example). In short, the commission now lacks the credibility and trust on which the successful execution of the tasks that Bill C-11 assigns to it depends.
By fixing its eyes on content issues, the bill accepts the status quo and leaves problems of digital market dominance, where they do exist, unscathed.
The Neglected and the Ignored
Crucially, we must also ask what is missing from this bill. Five things stand out.
First, this bill lacks clear thresholds for determining what’s in and outside its scope. This is unfortunate, because establishing clear thresholds based on a company’s revenue, the size of its user base and market capitalization, for example, are headline features of the European Union’s Digital Markets Act and Digital Services Act, as well as of a suite of platform regulation bills now before the US Congress. In the European Union, the proposed legislation is very clear that it only covers a well-targeted set of “very large online platforms,” while in the United States, current bills before Congress speak of “covered platforms.”
This issue is low-hanging fruit and should have been included in Bill C-11. Not only would it have clarified some of the muddled line-drawing exercises and definitions outlined above, but it would also have put the CRTC on a shorter leash and held it more accountable to Parliament — a formal requirement in terms of democratic legitimacy.
Second, the bill maintains no clear and robust information disclosure obligations that would apply to the services brought under the act and CRTC authority. Doing so would help us — the public, academics, parliamentarians, journalists and regulators — to better understand the streaming services and online platform activities that now operate in Canada and their decision-making processes. Without such obligations, these services remain a black box.
Third, and relatedly, Bill C-11 continues to feature a stunted view of “discovery” that is primarily about pushing more Canadian content (CanCon) in front of more Canadians’ eyeballs. Instead, it should have looked toward a more progressive view of “discoverability” along the lines that, for example, McKelvey, a communication studies professor at Concordia University, has articulated. In this more progressive view, instead of forcing CanCon to rise to the top, as the broadcasting-driven Bill C-11 does, discoverability would focus on opening the complex technical communication and media systems that increasingly influence access to and the presentation of expression online to greater public scrutiny and regulatory oversight. Instead, Bill C-11 retains the stunted CanCon view of discoverability and, worse, the bill backpedals on the issues of greater algorithmic transparency and information disclosure by introducing new limits on the CRTC’s access to the algorithms and source code at the heart of the online streaming and platform services (section 9(8)).
Fourth, the flipside of the lack of accountability and robust information disclosure obligations is that Bill C-11 does nothing to establish privacy and data protection rules. As such, the legislation not only neglects a critical moment in which it could begin to lay down strong data and privacy protection rules across the many different aspects of the online digital environment, but it also effectively puts its thumbs on the scale in favour of the surveillance capitalism model on which these services are based.
Fifth, not only does Bill C-11 add further momentum to the surveillance capitalism imperatives that are the taproot of so many of the problems that now characterize the digital online environment, but it also does nothing to address issues of market dominance and anti-competitive conduct. In other words, by fixing its eyes on content issues, the bill accepts the status quo and leaves problems of digital market dominance, where they do exist, unscathed.
Take, for example, the recent contretemps in the United States that saw a classic Goliath versus Goliath battle between Google’s YouTube subscription service and Disney (Bloomberg 2021). The battle had all the hallmarks of a classic cable-industry fight over the terms of retransmission, including a blackout on programming when Disney withdrew its content from the service. The case raised critically important issues about the conditions of carriage that are at the heart of what all “broadcasting distribution undertakings” (BDUs, or in simple language, cable television providers) are obligated to do and how disputes between them and program rights holders are to be handled. Bill C-11, however, is completely silent and seemingly oblivious to such issues.
For app stores (such as Google Play and Apple’s App Store) and digital platforms (such as Amazon Prime Video, Crave, Netflix, Apple TV and iTunes) that operate much like cable television, Internet Protocol television and direct-to-home satellite providers (all BDUs in official CRTC-speak), these issues will become more important. That they are ignored here is, while not surprising, a big mistake and a fatal weakness of Bill C-11, as with its predecessor. In sum, just as the previous bill did, Bill C-11 leaves the problematic system of market power and surveillance capitalism intact.
These issues were, in fact, taken up in the Broadcasting and Telecommunications Legislative Review Panel’s 2020 report Canada’s Communications Future: Time to Act (see chapter 2, in particular). The fact that they are absent from Bill C-11, to my eyes, stands as an index of just how one-sidedly fixated on broadcasting and content issues this bill is, and the extent to which the Canadian cultural policy community continues to have a stranglehold on the government’s policy and regulatory agenda. That the drafters of Bill C-11 have ignored these issues is an index of a bill that still, for the most part, has its head stuck in the sand.
To sum up, the Liberal government had an opportunity to go back to the drawing board and get this opening plan in its emerging internet services regulation right. It had, and has, a huge opportunity to align this agenda with what a new generation of public interest-based internet regulation fit for a democracy should look like. It made some baby steps in this direction, as we saw above, but it did not engage in the thoroughgoing overhaul that is needed. As a result, Bill C-11 stands as another missed opportunity.