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.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you, Madam Chair.

I'm pleased to tell Mr. Nater that I actually do support this amendment. This one I agree with, based on what he said. I'm hopeful that everyone else will agree with me, since I took the liberty of saying that.

I do have one amendment, which would be that it should read, “Canadian programs” and not “Canadian online undertakings”. “Online undertakings” are defined in Bill C-11 as “online undertaking means an undertaking for the transmission or retransmission of programs over the Internet for reception by the public by means of broadcasting receiving apparatus”.

I hope it would be considered a friendly amendment just to change “online undertakings” to “programs”.

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

Thank you, Madam Chair.

Here is a brief explanation of this amendment. It is talking about exporting Canadian content and making sure it is promoted and can succeed globally.

I would note that it wasn't too long ago a Canadian Heritage delegation was in Europe, celebrating and spreading Canadian content and the Canadian industry over there. This is something I think we should be promoting, from a broadcasting perspective and a creator perspective.

This would be an amendment to the broadcasting policy for Canada. It reads that Bill C-11, in clause 3, be amended by adding after line 22 on page 4 the following:

(2.1) Subparagraph 3(1)(d)(ii) of the Act is replaced by the following:

(ii) encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity, by displaying Canadian talent in entertainment programming and by offering information and analysis concerning Canada and other countries from a Canadian point of view, and foster an environment that encourages the development and export of Canadian online undertakings globally,

That would be my amendment.

I think it's important we do what we can to promote and export Canadian talent and creations around the globe.

Thank you, Madam Chair.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

Essentially, what we're talking about here is discoverability. Mr. Julian raised the point that platforms already curate material for their audiences. That is correct. We heard that from YouTube and, I believe, from others as well.

However, the comparison he's drawing here, that if platforms do it themselves then why not put the government in control of the curation, is a terrible argument. It would be the same as or akin to saying that bookstores already determine where their books are going to be displayed, but why leave it up to them? The government should be put in control of that. Clothing stores already position their clothing within the storefront window in order to showcase certain things, to draw attention to the purchase of certain things. Let's not leave that up to the stores. Instead the government should be in control of that.

I recognize that Mr. Julian and I hold different views in terms of what government responsibilities should look like. I think what we heard from many witnesses, however, was that it is best to leave choice with Canadians rather than dictating to them what they should or should not watch or read or access online.

Scott Benzie is one individual who came forward, from Digital First Canada. With regard to discoverability, he commented that it may appear noble to want to show people Canadian content or to increase accessibility to Canadian content, but in actuality what will end up happening is that the government will be picking winners and losers. Some individuals, some content creators, will be bumped up in the queue and therefore made more discoverable, and others will be bumped down and therefore made less discoverable. When that happens, those individual artists or new media creators are no longer responsible for their own destiny, which is what they're enjoying right now and what makes the ecosystem so vibrant. Instead it will be the government determining that. The government will determine to what extent certain content is accessible within a platform such as YouTube.

That not only hurts Canadians, then, who are looking for certain content that would be of interest to them, but it also hurts the creators. It hurts those who exist within new media platforms who are making a go of it. Right now they can curate something that they know their audiences are going to love. They can use strategies in order to reach more people who love that same content.

Now, if Bill C-11 passes, the government is going to determine that it knows best and, therefore, it will force certain content in front of your eyeballs. If you don't like the content that is forced in front of your eyeballs, then you might not watch it. If you don't watch it, then that material continuously gets downgraded and pushed to the back end of the Internet. Meanwhile, that frustrates you as the viewer but it also hurts that individual or entity that came up with that content. Instead of its being shown to those who would take an interest in it, it's shown to someone who actually is going to, again, condemn it to the back pages of the Internet.

This is extremely harmful. Arguably it is censorship. It is determining what Canadians can or cannot access online. It is determining the audience that these digital creators would have access to.

I'm baffled, actually, by this. Here in Canada we have incredible digital-first creators. I'm perplexed as to why we wouldn't celebrate their success and want them to represent Canada to an even greater extent by being able to continue to reach not only a domestic audience but also a global audience. If this bill moves forward, it will build walls around these digital-first creators. Again, it will make sure that their content is shown to some Canadians, but it will actually prevent it from being able to reach beyond Canada's borders.

That's unfortunate, because, right now, for Canadian content or digital-first creators here in this country, 90% of the audience is global, on average. In essence, then, this bill hinders them. It prevents them from achieving success. It's incredibly harmful.

I'm confused as to why we would move in that direction. You might recall that Morghan Fortier from Skyship Entertainment came to the committee. With regard to discoverability, she 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....

Minister Rodriguez has insisted that [user-generated content] will not be included in Bill C-11, but this is untrue. Last week, the chair of the CRTC, Mr. Scott, confirmed that [user-generated content] is in the current draft of the bill.

She also said:

In order for these platforms to operate successfully, global discoverability is the key for a lot of these content creators. I think a lot of that understanding is lost when you look at a geographically niche broadcast enterprise, which the Canadian industry has been for a very long time.

In other words, her argument is this: Bill C-11 will capture many of these individuals who are making a go of it within unique online platforms. It will determine whether or not they get to win or lose, in other words, and whether their content is discoverable or has to be hidden. That is incredibly detrimental to those individuals working very hard to make a go of it.

I have to plead with the committee that we take into consideration our digital-first creators in this country, that we advocate for them and that we ensure their content is not forced in front of the eyeballs of Canadians or hidden from the eyeballs of Canadians based on some sort of government regime enforced through the CRTC. Rather, these individuals should be given the freedom required to succeed within the digital space.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you very much, Madam Chair.

We heard testimony...and just one example is OUTtv, which on market forces basically was excluded from a number of streaming distributors. The market forces do exclude programming. The idea that Canadians obtain the programming of their choice when market forces, the big web giants, basically set the conditions, I think is somewhat misguided. That's why we have the uneven playing field that really calls for Bill C-11.

I'm reminded of that famous quip by Tommy Douglas that it's every man for himself, said the elephant, as he danced among the chickens. This is the kind of situation that develops when market forces are the only thing that are put into place, which is why Bill C-11 helps to level the playing field. Yes, there is a provision of market forces, no doubt, but there's also a bit of a counterbalance so we have a level playing field.

I'll be voting against this amendment.

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

Thank you, Madam Chair.

This is CPC-1.1. This amendment reads that Bill C-11, in clause 3, be amended by adding after line 22 on page 4 the following:

(2.1) Paragraph 3(1)(d) of the Act is amended by adding the following after subparagraph (i):

(i.1) reflect and be responsive to the preferences and interests of its audiences,

(i.2) to the extent possible, rely on market forces to ensure that Canadians obtain the programming of their choice,

The effect of this amendment...and this gets to the broadcasting policy for Canada. The part of the Broadcasting Act that's being amended is the actual broadcasting policy for Canada and some of the broad principles, for lack of a better word, that guide broadcasting policy in Canada. It's twofold.

The importance of this, I think, is actually the Canadian public: the consumers, the individuals who seek entertainment, who seek content being responsive to what they want, the interests they have, the shows, the creations they're interested in. It includes that as part of the broadcasting policy.

Of course, the element of market forces ensures that we are not arbitrarily putting our fingers on the scales and picking winners and losers among Canadian creators. The principle of this is including it in the broadcasting policy for Canada and really looking at the rights of consumers, the rights of individuals to be able to seek out and find and be responsive to the content they're searching for online and within Canada.

Thank you, Madam Chair.

[Thomas Owen Ripley]

Thank you for the question, Mr. Nater.

I agree with the assessment that the bill, as currently drafted, is trying to do two things. There is a current policy objective in the Broadcasting Act about the system being effectively owned and controlled by Canadians. As Mr. Champoux made allusion to, that has historically been done by issuing licences to only Canadian-owned and Canadian-controlled companies.

That said, part of Bill C-11 recognizes that many Canadians now subscribe to essentially non-Canadian services. One core objective of the bill is to bring those services into the system and have them contribute.

The current drafting of the bill speaks to the importance of the system continuing to be effectively owned and controlled by Canadians—in other words, Canadian over-the-air broadcasters, cable and satellite companies would need to be Canadian owned and controlled—but it recognizes that there's an exception for foreign broadcasting undertakings providing programming to Canadians.

Having listened to Monsieur Champoux, I would not say that it is open to a future government to dismantle the Canadian ownership and control requirements that are currently in place. Paragraph 3(1)(a) of the bill says “with the exception of foreign broadcasting undertakings”. It makes that distinction, from the government's perspective, between Netflix, Disney+ and Amazon, which are not Canadian owned and controlled, and Rogers, Bell and Quebecor, which are Canadian owned and controlled.

[Martin Champoux, Bloc, Drummond, QC]

Madam Chair, the way Bill C‑11 proposes to amend the text of the act represents a significant change from what was decided with Bill C‑10. We're talking about non-Canadians not being eligible for a broadcasting license, a requirement that would be maintained in the instructions given to the CRTC. However, another government could decide to remove this requirement through an order in council. As a result, what the lawmaker intended would be weakened in the act.

In my opinion, we don't want Canadian online businesses to be easily acquired and controlled by foreign interests. That is the thrust of the motion I'm putting forward. Instead, we encourage the CRTC to play a role in promoting the Canadian nature of the system. This does not in any way restrict foreign ownership and foreign activity in the Canadian broadcasting system, but we do further encourage the CRTC to put in place measures that provide incentives to consolidate Canadian ownership of businesses and Canadian control of the system.

I hope that answers Mr. Nater's question. If not, I'm sure Mr. Méla and Mr. Ripley can provide greater depth on the issue.

[Martin Champoux, Bloc, Drummond, QC]

I think the amendment speaks for itself. We wanted to get a bit closer to the definition we had adopted for Bill C‑10. We want to be sure to recognize the presence in our system of foreign broadcasting undertakings that provide programming to Canadians.

The amendment proposes that Bill C‑11, in clause 3, be amended by replacing lines 7 to 10 on page 4 with the following:

(a) the Canadian broadcasting system shall be effectively owned and controlled by Canadians, and it is recognized that it includes foreign broadcasting undertakings that provide programming to Canadians;

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

Thank you, Madam Chair. This is CPC-2. The amendment states that Bill C-11, in clause 3, be amended by, (a), replacing lines 7 to 9 on page 4 with the following:

(a) the Canadian broadcasting system shall be effectively

It also would amend the clause by, (b), replacing lines 11 to 15 on page 4 with the following:

(a.1) foreign broadcasting undertakings may provide broadcasting services to Canadians by means of online undertakings provided they do so in a manner that is consistent with the objectives of the broadcasting policy for Canada;

That's CPC-2.

This effectively provides that the Canadian broadcasting system continue to be owned by Canadians but also acknowledges that, in the global and digital marketplace we live in, there will be online undertakings that obviously already are being provided by foreign entities and will continue to be provided by foreign entities, with the acknowledgement and the understanding that they ought to consider and respect the same policy objectives that are outlined for Canadian providers, Madam Chair.

[The Chair, Liberal, Hedy Fry]

Thank you, Mr. Perkins.

Is there anyone else? No, then I will ask the clerk to please call the vote on amendment CPC-1.04.

(Amendment negatived: nays 7; yeas 4)

I'd like us to move to the final amendment on clause 2. That would be from Mr. Louis, Kitchener—Conestoga.

I will read his amendment. It is that Bill C-11, in clause 2, be amended by replacing line 35 on page 3 to line 1 on page 4 with the following:

enhance the vitality of official language minority communities and to support and

Is there any discussion?

There is none on the floor, none virtually—

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you very much, Madam Chair.

What's clear here, regardless of the amount, is that this creates a massive loophole, and I think that's the consideration that we must have as a committee. It doesn't matter about the amount. It just matters that any company that claims that amount is then completely subtracted from the act, which means they can do whatever the hell they want and the CRTC doesn't have any sort of jurisdiction. Not only does that create a huge imbalance. It means that the companies that are the most dishonest, the online undertakings that are the most dishonest, are the ones that can benefit the most from this uneven playing field, this loophole that leads to some companies being able to, through dishonest practices, simply pull themselves out.

All parties have said that they support the intent of creating a level playing field, and all parties support the idea that web giants should pay their fair share. It seems to me to be very destructive to those principles that all parties support, if that we create this loophole that dishonest online companies could use to simply say, “These provisions don't apply. I'll do whatever the hell I want.” We have heard testimony from our departmental witnesses that it is a laborious practice that does not guarantee an adequate outcome to get around those dishonest players.

We cannot create with Bill C-11 what we have created with overseas tax havens.

The PBO estimates that $25 billion a year goes to overseas tax havens. Think of the housing crisis, the crisis in indigenous communities, what seniors are living through, families struggling with the cost of living, all of those things, and $25 billion goes to overseas tax havens in a blink of an eye, every year, according to the Parliamentary Budget Officer. Why would we want to create the same kind of massive loophole in Bill C-11?

It makes sense to take the approach that, if we want to have a level playing field, online providers are part of this approach on Bill C-11, and I fail to see how a loophole in any amount listed can be.... As a dishonest practice within an online undertaking, particularly a foreign one that is perhaps in a jurisdiction where Canada doesn't have the ability to intervene, they can just choose whatever figure they choose to declare, even if it's a dollar, and then they're automatically basically exempt from the act. That doesn't make any sense at all.

We're basically going over the same amendment with different dollar figures. Regardless of the amount, it creates a significant loophole for dishonest business practices and actually skews the whole principle of a level playing field, which is the intent of the bill and which—I'll mention it just one final time—all parties say that they support. Why would any party propose to create a big loophole that throws that out of whack?

[The Chair, Liberal, Hedy Fry]

Thanks, John. I was informed by the clerk that we are starting a new meeting, so I then adjourned that meeting with the clerk and he has that listed at the time I adjourned it. I did not realize. I thought we were continuing. I gather that this is a new meeting. The next one is going to be a new meeting as well. Thank you.

Again, the meeting is taking place in a hybrid format, as you all know. For those attending virtually, please ensure that you mute your microphone when you are not speaking and open it when you intend to speak.

As per the directive of the Board of Internal Economy, again, everyone who is in the room is required to wear a mask. Again, please wait until I recognize you by name before speaking. Once again, please use your icon—you all know that now—for interpretation.

Finally, for those on Zoom.... Mr. Uppal knows that so I won't repeat it for him.

We are now moving into C-11, an act to amend the Broadcasting Act and to make related and consequential amendments to other acts, clause by clause.

(On clause 2)

The last time we left I think we were entertaining a subamendment from Mr. Champoux. Does everyone have that subamendment?

Yes, Mr. Champoux.

[The Chair, Liberal, Hedy Fry]

Good afternoon, everyone.

I call this meeting to order.

I would like to acknowledge that this meeting is taking place on the unceded traditional territory of the Algonquin Anishinabe people.

Welcome to meeting no. 35 of the House of Commons Standing Committee on Canadian Heritage.

Again, I want to remind everybody that, pursuant to the order of reference of Thursday, May 12, 2022, and to government motion number 16, adopted by the House of Commons on Monday, June 13, 2022, the committee is resuming clause-by-clause consideration of Bill C-11, an act to amend the Broadcasting Act and to make related and consequential amendments to other acts.

As you all know, today's meeting is—

Government Policies

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Mr. Speaker, airports are in chaos. The passport office is snowed under. Inflation is out of control. Ministers are misleading Parliament. The government's current priorities are an incoherent mess.

Bill C-5 would drop sentencing requirements on violent offenders and drug traffickers and open the door for sex offenders to serve community sentences near their victims. Bill C-21 pretends to address gun violence, but literally only affects people who obey Canada's existing strict firearms laws. Bill C-19 would remove any pretense of fiscal control from the undisciplined and unserious government. Bill C-11 is a bill that would give the CRTC the power to control what Canadians find and post on the Internet. None of these bills would do anything to fix any of Canada's serious problems.

If these are the government's priorities for the next two weeks, I suggest it quit now and spend the summer coming up with a real agenda to help Canadians.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

I have a question for Mr. Ripley. I'm curious if, within Bill C-11, the term “commercial content” is used, and if so, how that might be defined.