Bill C-11

Online Streaming Act

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) specify that the Act does not apply in respect of programs uploaded to an online undertaking that provides a social media service by a user of the service, unless the programs are prescribed by regulation;
(c) update the broadcasting policy for Canada set out in section 3 of the Act by, among other things, providing that the Canadian broadcasting system should
(i) serve the needs and interests of all Canadians, including Canadians from Black or other racialized communities and Canadians of diverse ethnocultural backgrounds, socio-economic statuses, abilities and disabilities, sexual orientations, gender identities and expressions, and ages, and
(ii) provide opportunities to Indigenous persons, programming that reflects Indigenous cultures and that is in Indigenous languages, and programming that is accessible without barriers to persons with disabilities;
(d) enhance the vitality of official language minority communities in Canada and foster the full recognition and use of both English and French in Canadian society, including by supporting the production and broadcasting of original programs in both languages;
(e) 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 English, French and Indigenous language broadcasting and the different conditions under which broadcasting undertakings that provide English, French or Indigenous language programming operate,
(ii) takes into account, among other things, the nature and diversity of the services provided by broadcasting undertakings,
(iii) ensures that any broadcasting undertaking that cannot make maximum or predominant use of Canadian creative and other human resources in the creation, production and presentation of programming contributes to those Canadian resources in an equitable manner,
(iv) promotes innovation and is readily adaptable toscientific and technological change,
(v) facilitates the provision to Canadians of Canadian programs in both official languages, including those created and produced by official language minority communities in Canada, as well as Canadian programs in Indigenous languages,
(vi) facilitates the provision of programs that are accessible without barriers to persons with disabilities,
(vii) facilitates the provision to Canadians of programs created and produced by members of Black or other racialized communities,
(viii) protects the privacy of individuals who aremembers of the audience of programs broadcast, and
(ix) takes into account the variety of broadcasting undertakings to which the Act applies and avoids imposing obligations on any class of broadcasting undertakings if that imposition will not contribute in a material manner to the implementation of the broadcasting policy;
(f) amend the procedure relating to the issuance by the Governor in Council of policy directions to the Commission;
(g) 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;
(h) provide the Commission with the power to require that persons carrying on broadcasting undertakings make expenditures to support the Canadian broadcasting system;
(i) 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;
(j) 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;
(k) 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;
(l) 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
(m) 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.

Online Streaming Act

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Alexandra Mendes]

The hon. member does not have the floor.

The hon. member for Saanich—Gulf Islands.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I am sorry, but the hon. member for Renfrew—Nipissing—Pembroke, and I was paying close attention, was not given the floor at any time by the Speaker. No one who has not been given the floor by the Speaker is allowed to speak. Once the Speaker stands, everyone is to sit down.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Alexandra Mendes]

I did mention the hon. member and I gave her the floor, but as soon as I saw where it was going, I got up again. There is no reason for a point of order. Those items have been debated more than once and the Speaker has ruled.

The Speaker has made a ruling, and it can be found in the Debates of May 2, 2022, at pages 4577 and 4578. I would invite the member to read the ruling of the Speaker to find that this matter has already been settled.

The hon. parliamentary secretary to the government House leader.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, the point I was getting to is that the member, I am sure, is aware of the importance of modernizing the act, and that the vast majority of the stakeholders see the proposed legislation as a step forward. The broader community, being Canadian artists, creators and workers in the industry, see it as positive legislation. I wonder if the member can reflect on that aspect.

[Mike Morrice, Green, Kitchener Centre, ON]

Madam Speaker, I want to make clear to the parliamentary secretary that I do agree with him.

As I said in my speech, it has been quite some time since the Broadcasting Act was first passed. There is an important need to modernize the Act, and I am glad the governing party prioritized that. I also believe it is important to get it right. While there are many stakeholders, as he has mentioned, who are supportive, there are also many others, some of whom I mentioned, such as Canadian YouTube content creators, who are quite concerned.

I go back again. Yes, it is a difficult decision not to support this legislation, but the analysis I am doing is weighing harm versus good. My concern here is that, with this legislation as currently written, given some of the vague language and allowing for user-generated content to be regulated as it does, it is open to the possibility of more harm than good.

[John Nater, Conservative, Perth—Wellington, ON]

Madam Speaker, it is one of those rare occasions, and perhaps not so rare, when the blues and the Greens are on the same page on something, and it is on section 4.2.

The member mentioned in his comments the ambitious versus less ambitious amendment. I want to talk about the less ambitious amendment that would take out indirect revenue and the impact that would have on at least ensuring that those who are paid by the platforms would be captured, but those who have indirect revenue through licensing deals or through sponsorships would not be captured. I wonder if he could expand on that and how that would have been a small change that would have had a big impact on digital-first creators and how they do their work.

[Mike Morrice, Green, Kitchener Centre, ON]

Madam Speaker, I think it is important to offer multiple options, and it was my intention to say, “Here is a concern I identified.” I had the chance to speak to it, and I offered a few ways the committee could consider addressing it. I know other parliamentarians did as well.

In my view, at least taking out user-generated content with indirect revenue would have been a reasonable amendment. It is also my view that, had we had less of the rhetoric in this place and more of a collaborative engagement among parliamentarians across party lines, there would have been an opportunity to say, “This is a reasonable one. We can agree on this piece. We will put aside our differences over here.” My sense, with this particular legislation at this time of year, is that it did not allow for some of those improvements. I believe all of us should be reflecting on the reasons why those reasonable improvements did not see the light of day.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I want to begin by acknowledging that we are here on traditional unceded Algonquin territory and say meegwetch.

It is a great honour to speak to Bill C‑11 this evening. As everyone knows, this bill would amend and modernize the Broadcasting Act, something that has not been done in 30 years, even though we have seen enormous changes in the various delivery platforms. The biggest changes have to do with online streaming rather than television and radio broadcasting. There have been changes for our actors, creators and musicians and with respect to the issue of Canadian, Quebec and indigenous culture.

First of all, this bill is not perfect. I have problems with certain aspects of it, but I have decided to support it anyway, and I will explain why. I thank my colleague from Kitchener Centre, another Green MP. We made different decisions, but we agree on the problems and the reasons why he will be voting no and I will be voting yes.

It is a complicated bill. I want to start with a few things, just to clarify what it is not. Moments ago, a very talented new member of Parliament, the hon. member for Fort McMurray—Cold Lake, spoke about wishing that we could put in a more concrete, entrenched form that freedom of expression and freedom of speech are respected in this land and that every Canadian knows they have a right to those things.

I would say, with all respect to that member, we have that. We have the right of free speech in the Charter of Rights and Freedoms. Beyond that, the act that this bill amends but does not cancel, repeal or wipe out the words of, the Broadcasting Act, has for the past 30 years entrenched the right of Canadians to freedom of expression. Nothing in this modernization in Bill C-11 would change, in any way, our right to freedom of expression. This bill does not censor anything. It does not change what we can see and what we cannot see, or what we can hear and what we cannot hear. It attempts to achieve greater protections for many different varieties of Canadians against the powers of the new digital world.

I am going to focus a little time on some specific examples. Before I talk about the good the bill does, let me say where I hope we will observe closely how the bill works, and be more than prepared to take it up again within the next year or two. I would suspect we would, if we have the problems that we fear we may have with the failure to make sure that Canadians who in the government's intentions are not supposed to be caught by this bill, are not, and if we have problems differentiating the impact of the bill on those people from the impact on the large digital platforms, whether it is Netflix, Crave or HBO. We are not intending to capture users who place their content on YouTube.

One of the differentiations that I found quite useful, and that I actually heard from Professor Michael Geist, was that there is a difference between a platform, a place where we can put things, that is “curated” versus one that is not curated. That is the word he used. I wish the government had used that kind of language in Bill C-11, because I think it would clarify things a great deal.

In other words, instead of concentrating on who does what on a platform, we should differentiate between the systems and differentiate between the platforms. If we were to say there was this area where there was a conscious effort to promote certain content, it would be a curated place. This is versus one where everybody could put stuff up: It is not being curated to meet a certain purpose. If it is being curated to meet a certain purpose or to create different profit, that would have been a better differentiation than we have in Bill C-11. What we have in Bill C-11 has left us divided.

I do not disagree one bit with my colleague for Kitchener Centre that this bill should be much better and clearer on the question of platform versus user. Platforms will be in and users will be out: I believe that is the government's intent, but the drafting does not make that sufficiently clear. I think we will have to go back to it and improve on and clarify this.

I remain concerned that the CRTC has a lot of clout and power in this. I hope we see that the CRTC is guided by the best information from people who are skeptical about this bill to make sure its use does not do anything but improve the situation for Canadians, both those who enjoy the products of creators and those who create. I hate to use the word “consumption” as if people consume culture, and I will not use it. People who enjoy culture, who are edified by culture and who feel ennobled by culture, those of us who are essentially the audience, need to benefit from this act just as the creators do.

Regarding the discussion around platforms versus users, I do not think the government has it right yet, so why am I going to vote for this bill?

When I look at the creative community, there is no question about this as it is empirically documented. The rise of the digital broadcaster has reduced the economic status of Canadian musicians and Canadian creators versus those in the U.S. Just to give members one example from the world of music, a traditional broadcaster generally sent 49¢ out of every dollar from Canadian music to the U.S. That sounds like a lot. Then, we see that the digital broadcaster sends 64¢ out of every dollar to the U.S. From 49¢ to 64¢ is a big difference to someone who is living on those earnings. In fact, I do not know how Canadian musicians can live on their earnings. In the past year, in 2021, on average Canadian musicians writing their own material earned $67 total in royalties from digital streaming platforms. This is not acceptable. It is not acceptable that people who are writing their own music in Canada have their income reduced just by virtue of what medium they use to share that material.

We need to have a Broadcasting Act that promotes Canadian creators within Canada and overseas, and we hope this bill will improve things. Certainly, the Canadian Media Producers Association, the Coalition for the Diversity of Cultural Expressions, the Society of Composers, Authors and Music Publishers of Canada, SOCAN, and the Alliance of Canadian Cinema, Television and Radio Artists, ACTRA, are saying that for their own survival as artists we need desperately to redress that imbalance. When it goes onto a digital platform, Canadian artists are paid less. They are valued less, and will turn from that career because they cannot make ends meet. As the rise of digital access to creativity overtakes the traditional, the situation will only get worse, and that is the trend line we see with the digital media and the online sharing of everything from music to film, video and TV.

There is a huge creative class in Canada. As a matter of fact, just to give some context for it, the membership of the Society of Composers, Authors and Music Publishers is 175,000 people. By the way, SOCAN does not just promote these brilliant creative people, but it actually runs the system that collects the royalties and distributes them fairly, so when we go outside of that system we are seeing the funds to pay musicians the royalties they deserve slip through their fingers without capturing it. That is why SOCAN is so strongly in favour of Bill C-11.

The same is true of how people feel across the spectrum of other artistic endeavours. We have heard a lot in this place about films like The Handmaid's Tale. It is hard to say one loves The Handmaid's Tale when, as a feminist, one would wonder how Margaret Atwood could see the future coming before we did. I dread the day I go to shop with my debit card and it is taken from me. It is not sufficiently Canadian content when the leads, the producers, the people holding the cameras and the people yelling “cut” are not Canadian. That is what Bill C-11 hopes to repair.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, when I listen to the member speak, I think about the Canadian industry. It seems to me that the Canadian industry will be further ahead with the passage of Bill C-11 than if it is not passed. I wonder if the member could give a clear indication whether she appreciates that or she disagrees with that.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I hope I was clear in my speech that this is the reason I am voting for Bill C-11. It is important and urgent that we pass Bill C-11 now.

We saw the last Parliament's attempt to pass Bill C-10. It is not the fault of any of us in the opposition that we had an unnecessary election, which caused Bill C-10 to die on the Order Paper, but Canadian performers and creators have been waiting a very long time to see a modernization that takes into account the way their income is undermined by online streaming. We need to do this urgently, and if it turns out that, as many have warned us, there are mistakes made in other parts of the bill, I hope we will go back and fix that later.

[Martin Champoux, Bloc, Drummond, QC]

Madam Speaker, I am pleased to learn that my colleague plans to support the bill. I admit that I was concerned about the Green Party members, especially when I heard the member for Kitchener Centre take the Conservative position on the issue of digital content creators, on the exemption and on clause 4.2 in particular.

I wondered whether my colleague shared that position and whether she also believed that this clause gave her cause for concern respecting freedom of expression and freedom of creation by these new artists, who are carving out more and more space in our landscape and from whom we will benefit a lot in the years to come, I am sure.

My other question has to do with the Canadian content she was talking about. She brought up The Handmaid's Tale, saying that Bill C‑11 would correct the fact that a production like that was not considered Canadian content.

I want to understand something. Does my colleague think that this content will become Canadian content or, on the contrary, does she think that the rules have to be tightened so that anything produced with stories from here are also produced by artists and talent from here?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I will do my best to provide a good answer to both questions from my colleague from Drummond.

First, I am absolutely comfortable with the position taken by my colleague from Kitchener Centre. In the Green Party, we are Green MPs, yes, but we have our own ideas and we do not have to vote with one voice. As members of Parliament, we have our own positions, depending on our ridings.

Second, I think my colleague from Drummond is right. It is vital that we have cultural products from here, made by Canadians and Quebeckers from here. If I remember my colleague's speech correctly, he, like his Bloc Québécois colleagues, clearly supports our creators, directors and film and television creators, and he believes that Quebec culture is more threatened by the development of online broadcasting and must be protected.

[Tracy Gray, Conservative, Kelowna—Lake Country, BC]

Madam Speaker, I want to ask the hon. member about the CRTC. We know that Bill C-11 would give sweeping new powers to the CRTC. We have heard that the government is not willing to disclose the policy directive for the CRTC. Is it not concerning to the member that we would give the CRTC these new powers without actually knowing what its mandate is going to be and what the policy directive will be?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I have a lot of concerns about the CRTC. I used to appear as an administrative lawyer in front of the CRTC, a gazillion years ago, on things like the Bell Canada review of revenue requirements when we were breaking up Ma Bell. I was a lawyer with the Public Interest Advocacy Centre and was before the CRTC quite a lot.

That policy directive should be public. One of the things the CRTC did in recent years, which I find very concerning, was deciding that Russia Today was appropriate content and available to be packaged on cable channels. That never should have happened.

We need to keep the pressure up to say that we need to see, from the government, the directive to the CRTC, and we need more transparency from the CRTC.

[Shannon Stubbs, Conservative, Lakeland, AB]

Madam Speaker, I will be splitting my time with the member for Kamloops—Thompson—Cariboo.

Bill C-11 is yet another attempt by the Liberals to regulate what Canadians can say and see on the Internet by granting unprecedented powers to the CRTC with, importantly, no clear guidelines or limits on how that power would be used.

The minister has made many claims about Bill C-11. He says that it would protect Canadian identity and culture, that it would help promote diversity and marginalized groups in Canada, and that it would tell Canada's story to the world. These objectives are commendable, but the big problem is that Bill C-11 would actually accomplish none of them. Instead, it would threaten the viability of Canadian digital content creators, stifle innovation and grant unprecedented new powers to the CRTC to dictate what Canadians can read, what they can listen to, and what they can say and see on the Internet.

Like its predecessor, Bill C-10, Bill C-11 is not about promoting Canadian content. It is really about censoring views and ideas that the Liberal government does not like, all under the auspices of strengthening Canadian culture. The bill's so-called discoverability provisions would essentially push content in front of Canadians, if that content is considered Canadian enough, whether people want to see it or not. If it fails to pass the government's definition of “Canadian”, it would be pushed down in the queue where it cannot be found. The CRTC would essentially decide which content creators succeed, what content Canadians see and what content Canadians do not see. The minister has recently declared that he alone would develop rules on what content is defined as Canadian. That is a pretty shocking revelation, that he considers himself the single arbiter of national identity.

This is especially disconcerting since the NDP-Liberal government is also currently developing an online harms bill, which has been so shrouded in secrecy that only recently an access to information request uncovered thousands of pages of negative comments by stakeholders. Critics warned that the original Liberal government plan would amount to censorship. I understand that a new proposal is now being put forward, given all the criticism. It would apparently place the onus on digital platforms to deal with harmful content. Based on the Liberals' track record, no one should believe that this proposal would pose less of a threat to individual liberties than their other ideas. I am not sure how they would tackle real online harms, such as non-consensual or child sexual abuse material, which is often not enforced through platforms right now.

On Bill C-11, thousands of Canadian artists, content creators and policy experts have voiced extreme opposition. They point out that pushing content to viewers who are not interested in it would actually harm Canadian creators, because the algorithms will penalize content that viewers do not interact with.

Justin Tomchuk, a Canadian producer who operates two very successful YouTube channels, noted, “Our channels have highlighted Canadian products for the world to see and purchase. Unfortunately, Bill C-11 would make that more difficult and potentially destroy our visibility internationally.”

Dr. Irene Berkowitz, a senior policy fellow at the Toronto Metropolitan University’s Audience Lab, also testified at committee, and Matt Hatfield said that it's “very risky for a small country like Canada to encourage this kind of model of prioritizing our own content. The benefits are pretty meagre if we make it work for our local content. The risk, if a larger country like France were to do the same thing, is enormous to us.”

Morghan Fortier, co-owner and CEO of Skyship Entertainment, creator of Canada's most-watched YouTube channel, said:

Bill C-11 is...a bad piece of legislation. It's been written by those who don't understand the industry they're attempting to regulate, and because of that, they've made it incredibly broad. It mistakes platforms like YouTube, TikTok and Facebook for broadcasters like the CBC, Netflix and Amazon Prime. It doesn't understand how those platforms operate, and it ignores the fundamental importance of global discoverability.

Those same points echo around the Canadian arts scene. Scott Benzie, the managing director of Digital First Canada, which advocates for digital content creators, said, “Most concerning about C-11 is that there is still room in the bill for the government to force platforms to put 'approved' Canadian content ahead of independent Canadian content and artificially manipulate the algorithms. Even in the best-case scenario this bill only has downsides for digital-first creators, while the traditional media industry gets their funding doubled.”

The reality is that traditional broadcasters like the CBC would receive more funding under Bill C-11, while independent innovators driving Canadian digital leadership will be left behind. Not only will Bill C-11 not promote Canadian digital content or strengthen Canadian culture, but its discoverability provisions will stifle innovation and impose severe restrictions on what content Canadians can access.

During committee hearings, the campaigns director of advocacy group OpenMedia, Matt Hatfield, said, “Manipulating our search results and feeds to feature content that the government prefers instead of other content is gross paternalism that doesn't belong in a democratic society.”

There really is no better definition of “censorship” than what the Liberal government is trying to do in Bill C-11. Censorship is at its very core. The Liberals even used censorship to cut off debate and ram through an unprecedented 150 amendments to the bill with no discussion or explanation. Over the last two weeks, the Liberals have effectively censored their own censorship bill.

Canadians will remember the fiasco of Bill C-10, which the Liberals introduced last year. Under Bill C-10, people's everyday expressions, which could include pictures, audio and video, would have been magically turned into broadcasting programs when transmitted by third parties like social media firms over the Internet, unless the CRTC or a cabinet policy directive said otherwise. Almost any individual-generated content would become subject to regulation. That is why Internet law expert Michael Geist called Bill C-10 an unconscionable attack on the online free expression of Canadians. As the Liberals stifled debate and used tactics like closure on Bill C-10, Conservatives did propose amendments to protect individual users and smaller players in the market by exempting streaming services and social media users with lower revenues, but the Liberals rejected that common-sense compromise.

Now the minister claims that this new bill, Bill C-11, addresses the concerns about Bill C-10 and that Canadians can be assured that regulating user-generated content on the Internet is now off the table, but that is just not true. In fact, when asked at committee hearings about whether Bill C-11 includes the potential for regulating user content, the CRTC chair, Ian Scott, acknowledged, “As constructed, there is a provision that would allow us to do it as required”.

The Liberals have tried to pull the wool over everyone's eyes with Bill C-11 by apparently reintroducing some original safeguards, while at the same time introducing a new provision that effectively negates the safeguards. I think we all agree with the goal of updating Canada's Broadcasting Act and bringing it in line with the realities of the 21st century. Conservatives have said repeatedly that we support creating a level playing field between large foreign streaming services and Canadian broadcasters, but Conservatives believe we can achieve that reform while also protecting individual rights and without turning the CRTC into an all-powerful censure board with almost no limits to its regulatory authority.

Should Canadians entrust the Prime Minister and the government with the power to regulate what Canadians say and see? Let us look at their track record. There have been many examples of this particular Prime Minister cracking down on those with whom he disagrees, from former senior ministers who defended the principle of judicial independence, like the Hon. Jody Wilson-Raybould, to denigrating and demeaning fellow Canadians who want their freedom back and to end federal mandates, and helping perpetuate misinformation and fake news about them, their motives and their actions. The Prime Minister has actually called Canadians who disagree with him un-Canadian. Therefore, is it any wonder that Canadians would be skeptical about his plans for the cabinet appointments who will define Canadian content for regulation?

This penchant for using the unbridled power of the state against the individual Canadians is embodied in Bill C-11 and in coming legislation the Liberals will claim is necessary. However, stakeholder groups that have been involved in consultations so far have called the Liberals' proposals dangerous, with the possibility of expanding the powers of regulators over time and significantly impacting the free expression and privacy rights of Canadians.

My constituents are clear about their views on the Liberal government's heavy-handed attempts to regulate and control what Canadians are allowed to say and see on the Internet. They have told me they do not agree with the Liberal government's censorship measures. No government agency responsible for broadcasting in a free and democratic society should have the kinds of powers and unchecked discretion as are proposed in Bill C-11. Canadians have fought and died to defend rights to freedom of thought and expression. In a society that cherishes these values, Bill C-11 would leave the door open for real abuses of power against the free expression rights of Canadians.

My Conservative colleagues and I will remain steadfast in working to stop the NDP-Liberal government from taking away the free expression and individual rights of Canadians. In its present form, we oppose Bill C-11, given the potential for it to establish a regime of censorship, control and regulation while not achieving the outcomes its proponents purport.