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

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Madam Speaker, it is always a privilege to speak in the House. I rise today to add my concerns to those of my colleagues around Bill C-11.

For those who have been following the process closely, Bill C-11 has several working titles around Parliament Hill. To some here in the House, it is just a reintroduced Bill C-10 from the last session of Parliament, with one change and one exception making that change irrelevant. To others, this bill is known as “how to save the future of broadcast” despite the fact that broadcasters such as Rogers and Bell, for example, have never publicly mentioned that their future relies on this act. My colleague for Perth—Wellington would call it the “groundhog day act”, because the challenges that existed in this bill when it was introduced as Bill C-10 are here again in Bill C-11. Let me explain.

Bill C-11 aims to regulate online streaming, online news and online safety. Those are admirable goals, but Canadians understand and expect that large, foreign-owned streamers ought not to be given advantages over the regulated Canadian broadcasting sector. Large foreign streamers should pay their fair share. On the face of it, this bill simply updates regulations in an industry that has moved faster than regulations ever could.

However, if there is one thing that we have learned from the Liberal government, it is that it is never able to resist the allure of power at any cost. It takes power, controls the narrative, silences its opposition and never accounts for its actions. We have seen this before. The Prime Minister just could not resist the urge to silence his opposition, going as far as to use the Emergencies Act, although it was unnecessary, and he and his government are never accountable for their actions. That is why we, as the opposition, need to be extreme in our diligence to ensure that the government cannot be given powers that could be misused.

Why is that necessary? It is because the Liberal government has proved that it has the audacity to use these powers and then not be accountable for their use. With that said, for my colleague across the way, Dr. Michael Geist is a law professor at the University of Ottawa, where he holds the Canada research chair in Internet and e-commerce law and is a member of the Centre for Law, Technology and Society. He is clearly a highly esteemed legal voice on this issue, unlike my colleague across the way, and he has had nothing flattering to say about the government's proposed Bill C-11. As we know, the government does not meet with those who have the courage to hold opposing opinions.

First, there is the question of regulating user-generated content, referred to in this bill as “content uploaded to a social media service”. Have colleagues ever thought about how broad that is: “content uploaded to a social media service”? Based on that definition alone, every member in this House should take pause. By that definition, the Facebook post that I put out this morning puts me within the same regulatory framework as the major players.

The Liberals on the other side have tried to make the argument that there are exclusions in the act, but the devil is always in the details with their legislation, meaning that the exception indicates that users would not be regulated like broadcasters, but their content could be treated as a program subject to CRTC regulation. These regulations include discoverability requirements that would allow the CRTC to require platforms to prioritize certain content and effectively deprioritize other content. The problem is not that they do not have protections looking out for individual users; it is that we know that even in the context that this should protect Canadians, it is not enough to keep the Liberal government from overreaching.

Second, in addition to the continued regulation of some Internet content as programs under CRTC rules, the remarkable scope of the bill also remains unchanged. In fact, there was a 10-page memo that set out what the government could regulate with this new bill: podcasts, audiobooks, sports streaming services and niche video streaming services, just to name a few.

In fact, as Professor Geist explains, and here it comes:

The potential scope for regulation is virtually limitless since any audio-visual service anywhere with Canadian subscribers or users is caught by the rules. Bill C-11 maintains the same approach with no specific thresholds or guidance. In other words, the entire audio-visual world is fair game and it will be up to the CRTC to decide whether to exempt some services from regulation.

Did we just feel a shiver go across this room? Canadians did. Just the thought of having the government-appointed body of Liberal friends in charge of deciding who they want to regulate without legislative guidance, now that is scary.

The uncertainty found in former Bill C-10 is also largely unchanged in Bill C-11. Bill C-11 tries to include some criteria for defining key provisions, such as the user-generated content exception and what constitutes a Canadian creator. How do Canadians feel about vague ways to identify who will be covered under provisions in this bill or what items are left unidentified?

For example, key terms like “social media”, used 12 times in the bill, are undefined. Unfortunately, this is lazy Liberal legislation, or maybe that is what they want us to think. This is their second attempt at this bill and I think they still have it wrong. They have left the door wide open for government regulators to cross lines of government overreach leaving us with only the hope that no government would have the audacity to stoop so low. In thinking that, we are underestimating what the government is willing to do with its power.

When opening the debate on Bill C-11, the minister asked us to “imagine a day without art and culture, no music, no movies, no television or books. It would be really boring.” This bill asks us different questions. It asks us to imagine a day when the Government of Canada decides which music, what television shows or what books are acceptable and how they should be distributed and regulated, with no clear guidelines of what they actually are. It asks us to trust the government by giving them the power to broadly regulate with their word that although they could use it to silence opinions opposed to theirs, they assure us that they would not.

I have considered that world and I have found that the Liberal government needs no extra powers to silence the viewpoints of Canadians.

[Mark Gerretsen, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons (Senate)]

Madam Speaker, I just cannot believe that the Conservative member concluded his speech by saying that the Liberal government wants to use this legislation to silence its opposition. That is the most ludicrous thing one could say in the House, that somehow the government is trying to use legislation like this, like we live in some kind of dictatorship—

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Yeah, we do.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

They are saying yes. Maybe I stand corrected and they genuinely think we live in a dictatorship. I guess I have nothing else to say about that.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Madam Speaker, I have lots to say about that, because Canadians do feel we have lost our democracy in this country. The bill is just another example of the slide of democracy. What my statement was is that the Liberal government needs no extra powers to silence the viewpoints of Canadians. That is how Canadians feel. We are not the only ones opposed to this. Look around. Look at the people in this country who are media experts who are saying this is a dangerous bill put together by a dangerous government that is drunk on its own power. Let us look at that. That is exactly what the bill is about.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Madam Speaker, I was quite surprised to hear my colleague, whom I truly respect, say that this is lazy legislation. All of the parties took several months to negotiate, propose and table amendments, both during the previous Parliament and now.

In terms of discoverability and content, yes, the CRTC will have to decide how content is handled, but it will not deal in specifics. It will not tell users what they can do.

Am I to understand that my colleague has no problem with the fact that nearly all the content we see on social media is American?

Does this mean that he believes that English-language Canadian content and American content are the same thing, and that we have no need to see more original Canadian content?

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Madam Speaker, the reason I said it is lazy Liberal legislation is because this is the government's second kick at the can. It had serious opposition the first time around. The bill was turfed because of the election, so it had an opportunity to fix what Canadians said needed to be fixed, and it really did not. That is what I mean by lazy legislation.

With respect to content, of course I think Canadians deserve to have a choice in the content we see, which includes Canadian content. I do not see how this bill improves that. We cannot rely on the CRTC to completely regulate everything that is not legislated for it.

[Lori Idlout, NDP, Nunavut, NU]

Uqaqtittiji, through you, I would like to ask the member this. Bill C-11 states clearly that both the act and the CRTC shall implement the act, “in a manner consistent with the freedom of expression”.

Does the member not agree that section 2 of the Canadian Charter of Rights and Freedoms provides the necessary guidance to allow for Canadian freedom of expression?

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Madam Speaker, absolutely, the charter guarantees freedom of expression. While the act states that the CRTC has that opportunity, given the history of the current government and its involvement in trying to regulate what Canadians can say and do, I do not have enough confidence that this bill will improve what is going on online.

[Mike Morrice, Green, Kitchener Centre, ON]

Madam Speaker, one part of the bill I appreciate is how it can legitimize the role of community broadcasters in media. It is the section that defines a community element. One example in my community is Midtown Radio, whose focus is on supporting KW musicians and audio creators. I am hopeful that in committee this language can be improved, and I am curious. What does the member think about this?

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Madam Speaker, I agree that the language is inadequate currently. I am not on the heritage committee and do not propose to understand exactly what the right language would be, but it is certainly something that we would be looking at improving to ensure that the language is adjusted to reflect that issue.

[Marty Morantz, Conservative, Charleswood—St. James—Assiniboia—Headingley, MB]

Madam Speaker, I rise today to speak to Bill C-11, the online streaming act. This bill seeks to awkwardly apply the same content regulation framework we see for radio and television onto online streaming and video platforms. Last year, the Liberals passed Bill C-10 in the House of Commons without allowing a full debate at the heritage committee to address many outstanding concerns from experts and parliamentarians over how this legislation affects Canadians' rights and freedoms on the Internet.

The Minister of Canadian Heritage claims that the bill's purpose is to target only large online streamers. The problem is this is not what the bill says. In fact, proposed subsection 4.2(2) says that in making regulations, the commission shall consider:

(a) the extent to which a program, uploaded to an online undertaking that provides a social media service, directly or indirectly generates revenues;

To be clear, any content that generates any revenue could be regulated. On this point, Michael Geist said:

The tone for the government’s communication on Bill C-11 was established from the very beginning. In the very first speech from [the minister] in the House of Commons, he stated “the proposed amendments in the online streaming act regarding social media would not apply to content uploaded by users or to the users themselves.”

This is not completely true, though, as content uploaded by users who may benefit commercially from their uploads can be regulated under proposed section 4.2.

Mr. Geist said:

Not only does the law have few limits with respect to which services are regulated, it is similarly over-broad with respect to what is regulated, featuring definitions that loop all audio-visual content into the law by treating all audio-visual content as a “program” subject to potential regulation.

Bill C-11 essentially defines broadcasting as any transmission of programs and audiovisual content for reception by the public. Mr. Geist also said:

[F]or all the talk that user generated content is out, the truth is that everything from podcasts to TikTok videos fit neatly into the new exception that gives the CRTC the power to regulate such content as a “program”.

He also said:

The kind of speech that many Canadians engage in on these platforms is just basic, fundamental freedom of expression that does not require, and should not be subject to, any sort of regulation or regulatory oversight by a broadcast regulator.

The bill would give the CRTC wide latitude to decide how to implement its new powers and there are legitimate concerns about regulatory overreach. One of the fundamental tenets of our free and democratic society is the need to separate political direction from the independence of the media. We see that in oppressive regimes like Russia and others that maintain a firm grip over what people see and do not see.

That is why I am so concerned about this bill and in particular section 7 and how it is expanded under Bill C-11. This section says that cabinet could tell the CRTC how to regulate online platforms. The section modifies cabinet's power to issue directives of general application on broad policy matters. The section would not only allow cabinet to issue general directions on broad policy matters, but would also allow cabinet to direct the CRTC on specifics, such as the definition of a Canadian program. It would shift the final authority for regulation from an independent authority to politicians and cabinet.

Just today in question period the Prime Minister refused to answer what direction the government would in fact give the CRTC for the implementation of this bill. That is a concern in and of itself, given the fact that debate is about to end in a few minutes on this bill and presumably we will be voting on it very shortly. The government says the goal of Bill C-11 is increasing the share of Canadian content consumed online by Canadians, yet the reality is that lots of Canadian content is already uploaded and shared every day, albeit in a disorderly manner. However, most Canadians have come to see social media and the Internet as an inherently disorderly place. In fact, it is what many Canadians appreciate about the Internet and social media. It is the sense of randomness and orderly chaos to the content they consume.

This legislation must be considered very carefully. We live in a society that values freedom of speech, thought and expression. These values are entrenched constitutional rights. By allowing the CRTC to impose a revenue test, any new online creator must now contend with the regulatory quagmire of rules, regulations and whim-of-government regulation for fear of being offside the fiat of the CRTC.

This test alone would have the exact opposite effect of encouraging Canadian content. In fact, I would go so far as to say that it would be a chill on new creators.

Former vice-chair of the CRTC Peter Menzies stated, “Overall, the big problem still is that [the Liberals] continue to believe that the internet is broadcasting, and I don’t think they really understand what it is”. Under the previous bill, Bill C-10, there was originally an exception, in proposed section 4.1, that would have allowed those who generated content on social media sites to be excluded. However, at committee, government members removed that exclusion, opening up user-generated content to regulation.

Further complicating the matter in Bill C-11, the Liberals added an exclusion to the exclusion, in proposed section 4.2, mainly regarding the revenue exception I have already mentioned. This exclusion to the exclusion is so broad that the government, through the CRTC, could once again regulate wide swaths of content uploaded to social media.

Canadians are rightfully concerned that an unaccountable government agency would be enforcing and controlling what people see and do not see on social media sites. Although the goal of promoting Canadian arts and culture is one I believe in, the government will never be able to be an honest broker, as it will always choose to highlight the content and media it subjectively enjoys. The incentive structure will change. The word will get out that if people want to get celebrated and promoted, they will need to share the government's subjective view of what is Canadian. Canada is home to many world-class writers, actors, composers, musicians, artists and creators. Creators need rules that do not hold back their ability to be Canadian and global successes.

Honestly, when it comes to social media and other online platforms, Canadians' main concerns are not about where their content is created; rather, their concerns are more personal. Canadians consistently express frustration that the current regulatory framework allows for the easy and near constant sale of their personal information. What Canadians want is to take back control over their lives and their personal information.

Let me offer a constructive suggestion, if members will entertain a thought experiment. Suppose I am an Uber driver and I have a great reputation as a driver. I want to open an Airbnb apartment, but I have no reviews on that, which means it is going to be hard. What if I could port my reputation from one application to another? If we make reputations portable and free-existing, that would allow me to own my own reputation, instead of some social media giant. It could be regulated in a way similar to how we currently regulate intellectual property.

I know this idea is imperfect; it is more of a rough sketch of a solution. My point is that Canadians are way more concerned about control of their personal information online and reputation portability than they are about the already pleasantly abundant supply of Canadian content. The truth is that Bill C-11 is nothing but a solution looking for a problem. Instead, why not solve real problems? Canadians should control the valuable data they generate, and the government should focus on issues that truly preoccupy everyday Canadians.

For this reason, I cannot support this legislation.

[Mark Gerretsen, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons (Senate)]

Madam Speaker, in his closing remarks, the member said the government should be focusing on issues that Canadians are concerned about, basically suggesting that the promotion of Canadian content and the preservation of Canadian cultural identity are not important. If I heard him correctly, he was basically saying that he does not see the value, in this place, of talking about how we can continue to promote and preserve Canadian culture.

That is what he said. Could he confirm that?

[Marty Morantz, Conservative, Charleswood—St. James—Assiniboia—Headingley, MB]

Madam Speaker, I do not know what speech the hon. member was listening to, but I certainly did not say anything like that.

I do want to say something else. I found it interesting that the member for New Westminster—Burnaby earlier talked about how it is impossible to find Canadian content online. I did a quick Google search for Canadians who became famous by posting online, and the first site that came up was an article that talks about five super famous Canadian singers who got their start on YouTube. I do not know if the member across the way who just asked the question has ever heard of Justin Bieber, but he posted a YouTube video in 2007. If this law had been in existence then, Justin Bieber would be paying royalties, would not pass the revenue test under proposed section 4.2 and would be brought under the regulation of the CRTC. Do members know who else became famous—

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

We need time for more questions.

The hon. member for Shefford.