Bill C-10 (Historical)

An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts

This enactment amends the Broadcasting Act to, among other things,
(a) add online undertakings — undertakings for the transmission or retransmission of programs over the Internet — as a distinct class of broadcasting undertakings;
(b) update the broadcasting policy for Canada set out in section 3 of that Act by, among other things, providing that the Canadian broadcasting system should serve the needs and interests of all Canadians — including Canadians from racialized communities and Canadians of diverse ethnocultural backgrounds — and should provide opportunities for Indigenous persons, programming that reflects Indigenous cultures and that is in Indigenous languages, and programming that is accessible without barriers to persons with disabilities;
(c) specify that the Canadian Radio-television and Telecommunications Commission (the “Commission”) must regulate and supervise the Canadian broadcasting system in a manner that
(i) takes into account the different characteristics of Indigenous language broadcasting and the different conditions under which broadcasting undertakings that provide Indigenous language programming operate,
(ii) is fair and equitable as between broadcasting undertakings providing similar services,
(iii) facilitates the provision of programs that are accessible without barriers to persons with disabilities, and
(iv) takes into account the variety of broadcasting undertakings to which that Act applies and avoids imposing obligations on a class of broadcasting undertakings if doing so will not contribute in a material manner to the implementation of the broadcasting policy;
(d) amend the procedure relating to the issuance by the Governor in Council of policy directions to the Commission;
(e) replace the Commission’s power to impose conditions on a licence with a power to make orders imposing conditions on the carrying on of broadcasting undertakings;
(f) provide the Commission with the power to require that persons carrying on broadcasting undertakings make expenditures to support the Canadian broadcasting system;
(g) authorize the Commission to provide information to the Minister responsible for that Act, the Chief Statistician of Canada and the Commissioner of Competition, and set out in that Act a process by which a person who submits certain types of information to the Commission may designate the information as confidential;
(h) amend the procedure by which the Governor in Council may, under section 28 of that Act, set aside a decision of the Commission to issue, amend or renew a licence or refer such a decision back to the Commission for reconsideration and hearing;
(i) specify that a person shall not carry on a broadcasting undertaking, other than an online undertaking, unless they do so in accordance with a licence or they are exempt from the requirement to hold a licence;
(j) harmonize the punishments for offences under Part II of that Act and clarify that a due diligence defence applies to the existing offences set out in that Act; and
(k) allow for the imposition of administrative monetary penalties for violations of certain provisions of that Act or of the Accessible Canada Act.
The enactment also makes related and consequential amendments to other Acts.

[Thomas Owen Ripley]

Yes, Mr. Shields, it would be left up to the CRTC to determine, whether it's equivalent manner or equitable manner, what that means in practice.

That said, there is a difference between “equivalent” and “equitable” in the sense that “equivalent” really means like for like. One of the challenges that Bill C-10 seeks to address is the greater diversity of broadcasting services that we all subscribe to now. One of the challenges the CRTC will have moving forward is that it has to think about our traditional TV channels, like Global or CTV or TVA, and now it has to think about online sports streaming services or online third-language broadcasting services.

Bill C-10 seeks to establish a framework whereby we want all those services to contribute to the policy objectives of the act, but it starts from a premise that how they do so may not look exactly the same. Depending on the nature of the service, the CRTC could say that this service may need to spend a certain amount of money each year on Canadian programming. For this other service, given the nature of the service, maybe it's more appropriate that it contribute to cultural production funds like the Canada Media Fund.

If the term “equivalent manner” is used, it suggests that, notwithstanding that a sports steaming service looks very different from, say, TVA or CTV, they should contribute in exactly the same way. My view is that “equitable” manner seeks to send the message that they should make a contribution that is of equal importance in terms of contributing to cultural policy objectives, but understanding how they go about making that contribution may look different at the end of the day.

[Thomas Owen Ripley]

Right now, as Bill C-10 currently stands—and as the committee is aware—it excludes social media services from the ambit of the act, unless there's a situation of an affiliation contract or a mandatary relationship in place.

CPC-5, if it was adopted—if I understand correctly the spirit of the amendment—would impose certain limitations on that to the effect that if a social media service crossed a certain threshold in terms of the users of the service, the subscribers in Canada, etc., then suddenly it would get pulled into the ambit of the act and would be subject to the act like any other broadcasters. In other words, the social media exclusion would not apply to them.

If I understand correctly from the debate that's currently taking place, as Ms. Dabrusin has signalled, the government intends to suggest the repeal of proposed section 4.1 altogether, meaning that there would no longer be any exclusion for social media services at all.

Just maybe for the benefit of the committee, in our previous sessions the committee upheld the exclusion for individual users of social media companies. In other words, when you or I upload something to YouTube or some other sharing service, we will not be considered broadcasters for the purposes of the act. In other words, the CRTC couldn't call us before them, and we couldn't be subject to CRTC hearings and whatnot.

However, if the exclusion here is removed and 4.1 is struck down, the programming we upload onto YouTube, the programming we place on that service, would be subject to regulation moving forward but would be the responsibility of YouTube or whatever the sharing service is. That programming that is uploaded, then, could be subject to things like discoverability requirements or certain obligations like that.

Again, if the way forward ultimately is to maintain the exclusion for individual users but to strike down the exclusion for social media companies, it means that all the programming that is on those services would be subject to the act, regardless of whether it's put there by an affiliate or a mandatary of the company.

I hope that helps clarify.

[The Chair, Liberal, Scott Simms]

I call this meeting to order.

This is meeting number 26 of the House of Commons Standing Committee on Canadian Heritage.

Pursuant to the order of reference of Tuesday, February 16, the committee resumes clause-by-clause consideration of Bill C-10, an act to amend the Broadcasting Act and to make related and consequential amendments to other acts.

Today's meeting is taking place in a hybrid format, as you see before us. We're also being webcast for those watching us from.... I was going to say around the country, but I suppose you could say from around the world.

That being said, very quickly I want to go over some of the rules that we've put down so far, for those of you who are observing this committee.

We are going to go through clause by clause. Each amendment will be signified by letters and numbers. For example, PV is Parti vert. PV-1 would be the first of the Green Party's amendments. We have amendments from LIB, from the Liberal members on the committee. CPC is from the Conservative members. The Bloc Québécois' will be BQ. NDP is the New Democrats. The final category would be G, which would be amendments coming forward from the government.

Before we pick up with that, there are just a couple of rules. Remember, please no taking any photos of this for distribution. That's for this particular meeting and for all of the meetings, really.

To clarify something on the votes, folks, when we vote on an amendment or a clause, I will ask for it to carry. If I hear silence then it carries. If I hear a “no” I will go to a recorded vote. If I hear a “no” and then someone says “on division” then I will carry it on division signifying that someone is not in support of it, but we'll go ahead without a recorded vote. If you want it to be negatived on division, just say “negatived on division”, or “no, on division”.

I hope that's clear. It was last time, I just thought I'd repeat that for everyone's benefit.

Let's get to scheduling for just a moment. As you know, we passed a motion to see if we can seek out extra hours or meetings for Bill C-10. You've already received the notice. We'll proceed and go ahead and try to find the space where we can. We found an evening of May 3 as a placeholder.

Just so you know, we attempted today to go for three hours, but that was not possible. We know that the Senate is also sitting. We also attempted for next Friday to do three hours. That too was unsuccessful. We were only able to obtain two hours, because multimedia services weren't able to cover it. So far we just have the extra meeting on May 3. I think you have received a notice for that. Nevertheless, we can talk about that later, if you wish.

I think it's time for Bill C-10. We'll go to clause-by-clause. We'll pick up where we left off.

(On clause 2)

We're on NDP-8.

Ms. McPherson, it's your amendment. Would you like the floor?

[The Chair, Liberal, Scott Simms]

Yes, I'm sorry. I confused the three and a half hours with the three. That's on me. You have my apologies.

I have a proposal from one o'clock to four o'clock. Do I see any dissension among the ranks? No.

How about we try for one o'clock to four o'clock, and if it doesn't work, I'll email an alternative. It's one o'clock to four o'clock eastern time—I should clarify that always—for this coming Friday to resume clause-by-clause on Bill C-10.

We'll see you on Friday, hopefully at one o'clock eastern.

[The Chair, Liberal, Scott Simms]

Okay. Here is the English version of BQ-11. It is that Bill C-10, in clause 2, be amended by adding after line 26 on page 4 the following:

(q) online undertakings must clearly promote and recommend Canadian programming, in both official languages as well as Indigenous languages, and ensure that any means of control of the programming generates results allowing its discovery; and

[Martin Champoux, Bloc, Drummond, QC]

I would just like to say that proposed subparagraph 3(1)(q)(ii) is meant to reflect paragraph 5(2)(a)(1) in subclause 4(1) of Bill C-10, which says that the CRTC must be fair and equitable in regulating as between broadcasting undertakings.

So I think that it's altogether consistent to place it in that location as well.

[Thomas Owen Ripley, Director General, Broadcasting, Copyright and Creative Marketplace, Department of Canadian Heritage]

Yes, thank you, Mr. Chair.

Thank you for the question.

As the committee is aware, one of the objectives of Bill C-10 is to clarify and enlarge the definition of “broadcasting” to clearly include online undertakings. This clarification around programming under their control has been included to clarify that or to recognize the fact that in some instances now, moving forward, you will have online undertakings that are distributing content generated by other users.

From the government's perspective, striking out the limitation with respect to programming under their control would mean that those undertakings, when they are distributing the content of others, would be responsible for that content even though they may not have played any role necessarily in the editorial control of it.

Thank you, Mr. Chair.

[The Chair, Liberal, Scott Simms]

I call this meeting to order.

Welcome back, everyone.

This is meeting number 25 of the House of Commons Standing Committee on Canadian Heritage. Pursuant to the order of reference of February 16, the committee resumes clause-by-clause consideration of Bill C-10, which we started on Friday and will continue today in a two-hour format.

As a note, as you know, we had a motion passed a few weeks ago in regard to seeking out extra time, if possible, for the consideration of Bill C-10. In terms of advance notice for this coming Friday—if we have to carry this over to Friday—I'll be scheduling a three-hour meeting once again.

All right. We'll do the same timing as last time. Of course, we're still in a hybrid format. I forgot to mention this the last time, by the way, but screenshots, taking photos of your screen, are not permitted. I know that you may already know this, but I just thought I'd add that.

Also, we've been good so far, but please don't speak until I recognize you by name. It's not because I want to feel intoxicated with all the power of being a chair; rather, it's to allow our committee Hansard the opportunity to make things all right in their world. As I said before, it can sometimes be confusing enough in person, so you can imagine it in this hybrid format. I shouldn't even say “hybrid”, because we're all online, with the exception of staff, so I guess we're going completely virtual.

I want to say just one other thing. We made a slight change last time in the voting on how we proceed on carrying—or not—each individual clause or amendment. To recap how this works, I will ask if it carries. I'll say, “Does the amendment carry?” If I'm met with silence, then it will carry. If you want to support it or oppose it, but you don't want to go to a recorded vote, you have two options. You can say “on division” or “carried on division”, or you can say “negatived on division”. If you say that, if you say “negatived on division” or “carried on division”, and someone else says “no” or “yes”, I will automatically go to a recorded vote.

Thank you, Mr. Housefather. I think you helped us out there last time.

I think that's a fairly good system. We've used it only once. In case you don't want to go to a recorded vote and you want to move on, you now have the option of—remember—“carried on division” or “negatived on division”. Thank you.

For the folks who are watching this from outside our virtual room here with those of us on the webcast, I'm going to do one explanatory thing. When we do the clauses, within the clauses most everyone has submitted possible amendments for consideration. Whether they're ruled in order or not, that's something else. We're going to go in order from number one up to the end of the amendments that are coming in. We have amendments by six different groups. We have amendments by “PV”. You have PV-1 from the Parti vert, which is the Green Party. We also have LIB-1 or LIB-2, and these are amendments by the Liberal members on the committee. “CPC” represents the Conservative Party members on this committee. “BQ” represents the Bloc Québécois member on the committee. NDP-1 or NDP-2 are amendments by the NDP member on the committee. The final category is G, and yes, we do get to do government amendments. We have a few of them here. They will be G-1, G-2 and so on.

(On clause 2)

That being said, let's get going. When we last left off, we were at NDP-7. Is everybody ready to go on that? We were dealing with the subamendment by Mr. Housefather.

To pick this up again, Mr. Housefather, can I call on you to start?

[Philippe Méla]

Thank you, Chair.

Yes, Monsieur Housefather, you are right. The process would be to deal with the first subamendment that's on the floor right now to be able to propose a new subamendment from possibly Mr. Champoux.

Now, for Ms. McPherson, indeed she could move her amendment, basically saying “that Bill C-10 in clause 2 be amended by adding after line 33 on page 3 the following”, and it would be just proposed paragraph 3(1)(f.1). We would remove the proposed paragraph 3(1)(f) part, if that's agreeable to the mover.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you, Mr. Chair.

I basically wanted to go back once again to this question. I understand that Bill C-10 would add a section that is relatively similar and adds greater context, but that section will not disappear if we amend the law to return the section amended by Ms. McPherson.

I'm trying to understand why that would be an issue. Can the department clarify whether, by amending this, we don't remove the other section that was also added to Bill C-10?

Perhaps Ms. Tsui could do that.

[Martin Champoux, Bloc, Drummond, QC]

Mr. Chair, what Bill C-10 would add to the act concerns me less than what this amendment would remove, in other words, the importance of making use of Canadian talent and artists, and offering the public information and analysis concerning Canada and other countries.

Basically, I can't see what the proposed amendment would add to the bill. I think the act's current wording does a good job of addressing this.

[Thomas Owen Ripley]

Thank you, Mr. Chair.

What I would point out to the committee is that the term “undertaking” isn't defined. Indeed, “broadcasting undertaking” is a defined term in the act, and that captures distribution undertakings like cable and satellite companies and online undertakings pursuant to Bill C-10, and programming undertakings, which are how we think of TV channels.

Again, here the concern is, as Mr. Olsen outlined, that right now the way the system works is that the CRTC can authorize cable and satellite companies like Rogers, Bell or Videotron to carry services that aren't Canadian—CNN, Fox, and so on—and they're part of your cable or satellite lineup.

The concern is that if the focus is only on online undertakings, there is a risk that there might be a suggestion that Parliament is trying to indicate to the CRTC that it should no longer authorize the distribution of undertakings except for online undertakings. That's the potential mischief we see here.

[Thomas Owen Ripley]

Thank you for the question, Mr. Louis.

What I would say is that, as I highlighted at the outset, we have already included under subclause 5(2) an indication that the CRTC should avoid regulating enterprises, businesses, organizations when they not do contribute in a material manner.

That was precisely, I think, to speak to the spirit of what I understand Mr. Rayes' amendment to be, which is that there isn't a reason to subject, for example, educational institutions to being considered a broadcaster. The way Bill C-10 currently goes about this is by giving the discretion to the CRTC to work through when certain types of organizations should not be subject to being considered broadcasters for the purposes of the act.

Indeed, I query whether the list is as complete as the committee would want it to be in order to be future-proofed or whether these questions are better left up to being worked out through regulatory proceedings that can evolve as time goes on.

[Thomas Owen Ripley]

Thank you for the question, Ms. McPherson. It's a good one, in the sense that, as the committee knows, there are elements of Bill C-10 that give the CRTC powers to impose discoverability requirements on online undertakings. Certainly we understand that in those contexts, the ways that recommender algorithms are working are very relevant to the CRTC's work.

It's not a question of saying yes, they're within the scope of the act, and the CRTC would be able to ask for information from online undertakings such as Netflix or Crave about the way their algorithms are prioritizing or servicing Canadian content as part of those processes. The implication in this particular context is where the term “programming control” is used elsewhere in the act. For example, proposed paragraph 10(1)(c) says:

standards for programs over which a person carrying on a broadcasting undertaking has programming control

I think there's another regulatory power that also references it, so my previous comments were speaking to the potential implication of this—that again the committee would be extending the scope of those powers in potentially requiring companies that are simply in the business of retransmitting or distributing content made by others to suddenly be responsible for the standards or the content of that content.

[Drew Olsen]

Thank you, Mr. Chairman. I'm happy to do that. Ms. Dabrusin, thank you for the question.

The first thing I see here is that there's a notion of including retransmission in this. Retransmission is cable companies retransmitting broadcast programs. For example, CTV broadcasts over the air, and then Rogers, Shaw or Videotron retransmits that to consumers, but they don't have any control over the programming that is in the CTV signal.

This definition appears to me to include the retransmission element, which would then give the Shaws, Rogers and Videotrons of the world responsibility, or deem them to be responsible, over the programming. They have the same issue now that we had in the last amendment with proposed paragraph 3(1)(h), and even the new proposed paragraph 3(1)(g) would apply to them, in terms of putting a burden on them for programming being of high standard and their being responsible for the programming. That's the first thing I've noticed.

Obviously, the new words there are also “recommendation or prioritization of programs or programming services”, which don't appear in the current proposed definition in Bill C-10. That would change it, and I am not really sure how that would apply to the retransmission world and I'm not sure how an over-the-air broadcaster does recommendations.

I think that's meant to apply just to online, but I'm not sure how that would apply in the traditional broadcasting space.