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.

[Alain Rayes, Conservative, Richmond—Arthabaska, QC]

Some broadcasting experts have told us that they have doubts as to the constitutionality of Bill C-10.

How do you respond to that? Do you think they are right to be concerned?

[Ian Scott]

Thank you, Mr. Chair, for inviting us to appear before your committee.

We welcome the opportunity to contribute to the committee’s study of Bill C-10. We have been following with interest the debates in the House of Commons. I should warn you, however, that there are number of matters before the Commission and we may not be able to provide detailed responses to all of your questions at this time.

The CRTC is an independent regulatory agency. Our role is to implement the legislation that Parliament adopts and to ensure that the policy objectives set for the Canadian broadcasting system are achieved.

We recognize that some parliamentarians have expressed concerns that Bill C-10 proposes to give the CRTC significant latitude with regard to its implementation; some, indeed, may think it is too much latitude.

While we understand such concerns, I would note that the current Broadcasting Act, which we've been implementing since 1991, provides the CRTC with a great deal of flexibility to determine exactly how to achieve Parliament's policy objective.

That flexibility has empowered us to adapt to change and to apply different requirements to traditional television and radio services, depending on the nature of a broadcaster's service and the linguistic market in which it operates.

Our regulatory frameworks have evolved in light of changing circumstances to ensure the production and promotion of French- and English-language content by and for indigenous peoples, and content that showcases Canada's diversity.

I would like to point out that the Broadcasting Act specifies that the broadcasting system should take into account the needs and interests of Canada's diversity. It was left to the CRTC, however, as an independent regulator, to develop the necessary frameworks to achieve that policy objective, as well as others that Parliament has set out in the act.

In 2019, television broadcasters, as well as cable and satellite TV providers, contributed $2.9 billion to content creation, which included $736 million on news programming in both official languages. This was the result of requirements that the CRTC has set.

Also as a result of our regulations, the large French-language ownership groups must spend at least 75% of their Canadian programming expenditures on original French-language content. In addition, we have set benchmarks for the number of hours of news and local programming that TV stations must air each week in both official language markets, and we have licensed UNIS, which reflects and serves francophones outside of Quebec.

Radio also plays a key role in reflecting and connecting communities. In 2019, there were over 700 commercial radio stations authorized to broadcast in Canada, offering a vast diversity of content and music. These stations contributed $46 million to the development and promotion of Canadian artists.

Our regulatory frameworks have led to the licensing of APTN, the first national Indigenous broadcaster in the world, and OMNI Regional, which provides multi-ethnic programming in 20 different languages. In addition to OMNI, Canadians can subscribe to more than 110 speciality and pay channels offering programming in a variety of languages other than English and French. They can also listen to numerous Indigenous and multi-ethnic radio stations. As the definition of diversity changed, we granted a licence to OUTtv, one of the first channels dedicated to airing content for the LGBTQ2+ community.

We made these decisions because we recognized their important contributions to public policy objectives.

The Broadcasting Act is now 30 years old. Although its drafters had the foresight to make it technology neutral, they could not foresee how modern technology would change the delivery of audio and audiovisual content. The CRTC has been monitoring the evolution of the Internet since its earliest days.

We have held comprehensive proceedings under the current Act to consider the regulatory approach that should be taken regarding online audio and audiovisual content. Each time, we concluded that online content, and its distribution, was complementary to the traditional system. We therefore exempted online broadcasters from the requirement to hold a licence.

A lot has changed in recent years. As more Canadians gained access to high-speed Internet services, they also gained access to a growing number of online libraries of domestic and foreign content. That explosion of choice was to the benefit of audiences and creators. It helped bring Canadian productions and artists to national and international audiences.

The Broadcasting Act, and the regulations we have implemented to achieve its policy objectives, have fostered a dynamic and diverse broadcasting system. The time has come, however, to adapt to today’s digital environment and to ensure we can continue to adapt in the future.

At the government’s request, we studied what effect this environment may have on the production, distribution and promotion of Canadian content in the coming years.

Our 2018 report found that Canadians will rely increasingly on the Internet to discover and consume music, entertainment, news and other information in the coming years.

We therefore recommended in the report that future policy approaches should focus on the production and promotion of high-quality content made by Canadians that can be discovered by audiences in Canada and abroad, ensure that all players benefitting from the Canadian broadcasting system participate in an appropriate and equitable manner, and be sufficiently nimble to enable the regulator to adapt rapidly to changes in technology and consumer demand.

We made similar recommendations to the Broadcasting and Telecommunications Legislative Review Panel.

All of this brings us to Bill C-10. We welcomed the tabling of the bill since, in our view, it does three very important things. One, it builds on the existing Broadcasting Act to clarify the CRTC's jurisdiction regarding online broadcasters. Two, it proposes provisions that specifically address our ability to obtain data from online broadcasters to better monitor their evolution. Three, it proposes to modernize the CRTC's enforcement powers.

Equally important, Bill C-10 proposes to foster a more inclusive broadcasting system and more diversity in content. Once the legislation, with the will of Parliament, has received royal assent and the government has issued its policy direction, we will hold public hearings to develop a new regulatory framework, and there will be an opportunity for Canadians and all interested parties to provide their input and be heard.

Our goal, as always, will be to develop as complete a public record as possible and to make evidence-based decisions in the public interest. We are proud that for over 50 years Parliament has entrusted the CRTC with the task of establishing regulatory frameworks to achieve the policy outcomes it has set out for the broadcasting system. We look forward to continuing to evolve in the 21st century and to ensuring that all players in the system, including online broadcasters, contribute in the most appropriate way.

Thank you. We'll be happy to answer your questions and to offer our expertise.

[The Chair, Liberal, Scott Simms]

Thanks, everybody.

We will now move to our special guests of the day as we consider clause-by-clause consideration of Bill C-10. We're still with witnesses. This will be our last day of meetings with witnesses before we start the actual clause-by-clause.

I would like to welcome very special guests, an entity that is no stranger to this committee or others, the Canadian Radio-television and Telecommunications Commission.

I would like to welcome Ian Scott, chairperson and chief executive officer; Scott Hutton, chief of consumer, research and communications; Scott Shortliffe, executive director of broadcasting. Rachelle Frenette is general counsel and deputy executive director.

Mr. Scott, I believe you requested 10 minutes, so I need to know who is starting.

[The Chair, Liberal, Scott Simms]

Welcome, everybody, to meeting number 19 of the House of Common Standing Committee on Canadian Heritage. Pursuant to the order of reference of Tuesday, February 16, 2021, the committee continues its consideration of Bill C-10, an act to amend the Broadcasting Act and to make related and consequential amendments to other acts.

I just want to give a quick reminder to everyone that it is forbidden to take screenshots and then to share them out to the general public or to any of our guests. I will mention that again in the second hour, but seeing our guests are from CRTC, they probably already know that.

We have a slew of hands up, as we say. Let's go to the order I see on the screen.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

We did have the minister join us earlier on as we were examining Bill C-10, and I was concerned, as I know many people were, when he told us that Facebook and YouTube were not exempt from Bill C-10.

I'm just going to give my last two and a half minutes, if I could, to Friends of Canadian Broadcasting. Could you talk about what you think of the answer of the Minister of Canadian Heritage that Facebook and YouTube are not exempt from Bill C-10?

[Caroline Desbiens, Bloc, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Thank you, Mr. Chair.

I thank Mr. Champoux for giving me his time. I also thank our witnesses.

Ms. St-Onge, we know that French is in serious decline, that our artists and crews are in an even more precarious situation, as you mentioned at the beginning of your statement, and that artists are the raw material of everything we are discussing right now.

I'd like you to further elaborate on the discoverability of French-language content in Bill C-10.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you.

Mr. Sparrow, perhaps you could comment on my next question as well.

Ms. St-Onge, I'd also like to hear your comments.

I know that your union, Mr. Sparrow, has worked a lot on diversity and inclusion and on how to make sure we have better representation of Black actors and indigenous actors in the field. What are the opportunities within Bill C-10 to better support that inclusion and those opportunities? Do you have any ideas in that respect?

Ms. St-Onge, I'd also like to know if you have any thoughts on this.

[Raj Shoan, General Counsel, Alliance of Canadian Cinema, Television and Radio Artists]

Thanks, David.

We think it's absolutely crucial to maintain the principle of “maximum [but not] less than predominant use, of Canadian creative and other resources”. In our view, the language presently contained in Bill C-10 is simply too weak. In the long term, it will only result in the degradation of truly Canadian content in the system.

Our proposed language—which we understand is also supported by the Writers Guild of Canada, the Directors Guild of Canada and the Canadian Media Producers Association—ensures that Canadian programming in the system will make maximum but not less than predominant use of Canadian creative and other resources.

For everything that's not Canadian, the regulator can discuss a lighter standard, but it's important that Bill C-10 hold a hard line with respect to the Canadian content produced by traditional or online undertakings. That standard should be the same as it has been for the last 30 years, which is maximum but not less than predominant use. That's the standard we hold to.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Thank you, Chair.

I'm going to start with Mr. Thomson. Thank you for your two amendments.

Do you have any faith in the CRTC? Let's start there. Because we're heavily regulated—and we've heard that throughout this whole Bill C-10 debate—are you comfortable with the CRTC taking on more work?

[The Chair, Liberal, Scott Simms]

Welcome back, everyone.

This meeting is on Bill C-10. The new format seems to be going well.

We just finished our first round, and we're on to our second round now, where the time has slightly changed. We now switch to five minutes, and we're going to start with Mr. Waugh.

Mr. Waugh, you have five minutes, please.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

I'd like to thank all the witnesses for joining us this morning.

I'd like to start with a few questions for our colleagues with Unifor.

You spoke about paragraph 3(1)(a) and the wording that you are proposing. As we know, Bill C-10 removes the first objective of the broadcasting policy for Canada set out in paragraph 3(1)(a)—“the Canadian broadcasting system shall be effectively owned and controlled by Canadians”—and you've put forward a modification that “the Canadian broadcasting system should maximize ownership and control by Canadians”.

Can you comment further on why you think it's so important to have that change to the act? I will go to ACTRA afterwards and get some clarification from them on the same point, so they can prepare now.

[Alain Rayes, Conservative, Richmond—Arthabaska, QC]

Thank you, Mr. Chair.

I thank all the witnesses for joining us today to help our committee.

My first question is for Mr. Bernhard, from Friends of Canadian Broadcasting.

When the minister appeared before us, in answer to one of my questions, he implied that social media were included in the bill. However, I listened to your remarks today, and when I look at subclause 4(1) the bill is supposed to add to the act, I see that it would not apply to users generating and receiving programs through an online company that provides a social media service. Companies such as YouTube, Facebook and TikTok are some examples of [Technical difficulty—Editor] that enable users to upload content.

Do you have comments or information you would like to add to explain your opinion on this part of Bill C-10 that would lead to the Broadcasting Act not applying to social media services?

[Katha Fortier, Assistant to the National President, Unifor]

Thank you very much.

Good morning. My name is Katha Fortier, assistant to the Unifor national president. I bring regrets from Jerry Dias. He had an urgent personal matter today. With me is our media director, Howard Law. We have 11,000 members in the media sector, including broadcasting and TV production. We thank you so much for the invitation today.

The Broadcasting Act is at the heart of our national mandate for cultural sovereignty. That's something we never stop having to protect and advance, whether it's in trade negotiations or in reform of the Broadcasting Act. For decades the Broadcasting Act has been a pillar of our cultural sovereignty. The goal is to strike the right balance between Canadian content and our openness to the world.

We've weathered this incredible challenge to our cultural sovereignty over the decades. Sometimes these changes have been driven by continental free traders doing the bidding of Hollywood, or by the disruption of new technology. When television arrived in our homes after the war, it didn't destroy radio, because we adapted the Broadcasting Act. Cable came along, and we adapted again. Satellite TV was supposed to be a Death Star that was going to zap the Canadian media industry, but we didn't let it. Each time, legislators and regulators kept their eye on the ball. We maintained that balance between our sovereignty and our openness to global culture, and we did it in a bipartisan way. Some of the greatest champions of the Broadcasting Act reform were Marcel Masse and Flora MacDonald.

Yes, the Internet is the most powerful communications technology yet. AI may be the next one. Then there may be another. We must keep adapting [Technical difficulty—Editor] our cultural sovereignty. Surrender is not an option.

Unfortunately, for the last 10 years the federal government and the CRTC have kept their hands in their pockets watching our cultural protections unravel. Now we are doing something about it. We support the amendments put forward by Friends of Canadian Broadcasting, and we especially want to make sure that Canadian ownership rules are reinstated in section 3. Those rules were ignored by the CRTC for 10 years. It tolerated Netflix setting up shop in Canada under the digital exemption and operating, growing and dominating as a cultural juggernaut. We propose replacing paragraph 3(1)(a) with the following: “the Canadian broadcasting system should maximize ownership and control by Canadians”.

We've been following the criticism of the bill. Some of it is hostility to regulation or hostility to cultural sovereignty, but some of the criticism of the bill is fair. There are loopholes to be closed and policy questions to be answered. We are pleased that this committee has asked the minister to answer some of those questions by tabling a draft cabinet directive to the CRTC.

As I said, the bill itself must say that foreign media companies will not be able to buy up domestic media companies, whether conventional or online. Cabinet or the bill should also direct that news broadcasting remain 100% Canadian-owned. Above all, cabinet or the bill must empower the CRTC to dedicate a stream of industry funding for local TV news with strict conditions to tie in to a head count of journalists and media workers. That's missing from the draft directive that has been tabled. Experts and industry leaders appearing before you have already driven this point home.

News is a priority cultural good in our broadcasting world. Journalism is essential to democracy. We saw how true that statement was on January 6 south of the border. We can't afford to be smug about Canadian democracy. Bill C-10 is a generational opportunity to address the underfunding of television news journalism. We can't miss it.

The last thing to say is what Bill C-10 doesn't do. To be fair, [Technical difficulty—Editor] said it would. It does nothing to stem the drain of advertising revenue from all of our media industries, including radio and television, by Google and Facebook. This Parliament has to act on that, and soon. Netflix is just the “N” in FAANG. Bill C-10 must be just the beginning in our defence of our sovereignty.

Thank you very much. Howard and I would be very happy to answer any questions.

[Daniel Bernhard, Executive Director, Friends of Canadian Broadcasting]

Mr. Chair, honourable committee members, it is a pleasure to be with you today.

You already know that Friends of Canadian Broadcasting is a Canada-wide non-partisan group dedicated to defending Canadian culture on the air and online.

Here are the choices before you as Friends sees them.

One, should streaming companies like Netflix be required to finance original Canadian content in exchange for the right to make billions here?

Two, should newer broadcasting formats, including user-generated content, be regulated, not just with respect to the content but also to the distribution platforms themselves?

Three, how can we ensure a future for Canadian stories and talent, when the industry is increasingly dominated by American behemoths? Facebook, YouTube, Netflix, and now the Ministry of Heritage, all give the same answer to these questions: “Don't worry. Just trust us. Everything will be fine.”

Netflix wants lower obligations than its Canadian competitors, and this bill would, in fact, allow it to remain entirely unregulated, as it is today. Facebook and YouTube say that users are solely responsible for user-generated content. This bill seemingly agrees, exempting social media, not just for the content but for any regulation of their distribution infrastructure as well. What of the need for thriving Canadian media, telling local Canadian stories? Well, Bill C-10 removes Canadian ownership as a policy objective and waters down key provisions supporting Canadian talent. Further, it does nothing to reinforce the CBC.

Meanwhile, Canadian media continue to bleed. Bell Media has laid off more than 400 people this year, by my counting anyway. Huffington Post shut down its Canadian and Quebec operations this month, and the proposed acquisition of Shaw by Rogers poses a real risk of further closures.

The question before you is really quite simple: Will you pass the law that Facebook, YouTube and Netflix want, or are you on Canada's side? If you're on Canada's side, then you cannot trust the department to fix all of the problems it has created. You must fix the bill yourselves, and the ambiguity around whether Netflix and company should contribute less than Canadian broadcasters, or not at all. Just write it into the bill, if for no other reason than to put the parliamentary secretary at ease. As you know, her riding is home to Canada's major production facilities. For her constituents, lost investment or underinvestment is not just a problem of GDP but actually income taken from their pockets.

You must be more involved further because the minister and the department don't appear to properly understand the reality they are tasked with regulating. Case in point, during his last committee appearance Minister Guilbeault said that YouTube and the like should not be subject to the Broadcasting Act, because government has no place regulating your uncle's cat videos. Minister Guilbeault, have you been on YouTube in the last 10 years?

YouTube is full of professional creators with major production budgets, millions of followers, and hundreds of millions of views. In fact, speaking of cats, how about Grumpy Cat, who has more than 12 million followers on social media, has appeared in Cheerios commercials, and has been profiled on all of the major U.S. networks. The U.K. publication Express estimates that Grumpy Cat, or its owners rather, earned nearly $100 million from these cat videos. That's more than major Hollywood stars.

At the same time, the minister and Mr. Ripley said that Facebook and YouTube were not exempted from the bill, but that they would be regulated only once they behaved as broadcasters. That is a very misleading statement. Social media platforms, especially YouTube, are broadcasters under the legislation. If they were not, it would not be necessary to give them an exemption.

Furthermore, the promise of additional legislation to combat illegal content online is a complete distraction. What about broadcasting standards, the fair allocation of political advertising space, discoverability rules, or requirements to have French user interfaces? Exempting social media from the act will make it impossible for the CRTC to address these culturally important issues.

In closing, your task is simple: Ensure a future for Canadian culture. Don't trust the department to just make it all okay after the fact. This is a once-in-a-generation opportunity, and as it stands right now, the bill before you is Facebook's bill. Netflix's CEO told The Canadian Press he loved Bill C-10. YouTube must also be thrilled. Will you pass Silicon Valley's bill, or will you pass a bill that serves Canada's interests?

It's up to you to make the right choice, and I'm hoping you will.

Thank you.

[Pascale St-Onge, President, Fédération nationale des communications et de la culture]

Good morning, Mr. Chair, and members of Parliament.

First, thank you for giving us the opportunity to speak about Bill C-10. My colleague, Sophie Prégent, president of the Union des artistes, or UDA, can't join us today because she's working.

I want to introduce my colleague, Julien Laflamme, from the research department of the Confédération des syndicats nationaux, or CSN. He'll be joining me in answering your questions and providing insight.

The Fédération nationale des communications et de la culture, or FNCC, represents approximately 6,000 members grouped into 80 unions. Almost two-thirds of our members operate under the Broadcasting Act. They work for public and private radio, television and digital broadcasters. The federation also works closely with cultural unions, including the UDA, the Quebec Musicians' Guild and the Association des réalisateurs et réalisatrices du Québec, to name a few. Together, our organizations bring together over 25,000 media, arts and culture workers.

Last week, the FNCC and its partners published a new and very troubling report on the situation of self-employed workers in the cultural sector. In short, the precarious situation that artists, creators and craftspeople in the cultural sector have faced for many decades, combined with the shutdown or increased complexity of activities resulting from the pandemic, has left our members in psychological and financial distress. Of course, the living arts have been particularly affected by the health measures and closures. However, the entire cultural sector has been severely shaken.

I must point out that the average annual income of self-employed cultural workers doesn't exceed the low-income cutoff for a single person in Quebec. In 2017, this cutoff was $24,220. In 2019, none of the cultural activity areas reached this cutoff, not even the film and video industry. This precarious financial situation and the weak social safety net available to self-employed workers make them very vulnerable during crises and slumps. This can't continue.

As a result, we're asking you to ensure that your proposed amendments to Bill C-10 will improve the living conditions of our cultural workers. This should be a priority. We've analyzed the bill in light of the current reality on the ground and we're proposing some significant improvements.

First, the appeal of deregulation and a race to the bottom to help integrate the digital giants is an illusion. In reality, our media and audiovisual ecosystem has been able to thrive because we've protected it from the hegemony of Hollywood and other wealthier and more powerful foreign competitors.

If we want to continue to stand out, not only for our Canadian productions but also for our social fabric, values and diversity, we must ensure that the modernization of our legislation will continue to protect our cultural sovereignty and enable our content to shine.

We believe that, to improve the social and economic living conditions of our artists, creators and craftspeople, we must ensure that the Broadcasting Act has more teeth, particularly with regard to the protection of French. Many jobs depend on this directly, along with the funding of our productions.

Given that the decline of the French language is a hot topic of concern in Canada, clearly the Broadcasting Act is an important tool to promote our language. For us, the changes to the requirement to use Canadian artists and workers are unacceptable, since they will result in fewer contract opportunities and job prospects.

If the digital giants must spend money on productions in Canada, they should comply with our definitions of original Canadian and French-language productions. The same logic applies to the protection of Canadian ownership of broadcasting undertakings. We should limit our focus to acknowledging the existence of foreign-owned digital companies in the broadcasting landscape. In our view, the existing text in the current legislation can continue to apply.

We believe that social media shouldn't be automatically excluded from the new legislation. Instead, it should be specified that the activities of users are excluded. However, the commercial activities of these companies should be included in the legislation, and the Canadian Radio-television and Telecommunications Commission, or CRTC, should have the power to regulate these activities.

Lastly, the CRTC must have adequate and suitable powers and resources to implement and enforce regulations and requirements, including fines based on company revenues. The licensing or authorization processes, along with the accountability of companies, must be transparent and conducive to public participation.

The regulatory free pass given to the web giants over the past few decades has significantly weakened our media culture and its production capacity. Many job losses among Canadian publishers and broadcasters have been documented, along with downward pressure on working conditions.

Maintaining quality—