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.

Broadcasting Act

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

Mr. Speaker, everyone agrees that Canada needs a modernized Broadcasting Act that fits today's digital age. Unfortunately, Liberal Bill C-11 is another in a long line of bad Liberal bills. Bill C-11 would create more red tape for businesses and creators, put more control in the hands of the incompetent CRTC and open up a Pandora's box of Internet regulation.

If passed, Bill C-11 could give the government the power to decide what Canadians can and cannot post on their social media profiles. Bill C-11 would limit consumer choice, drive up prices, create further uncertainty for Canadian businesses and creators and limit the free expression of all Canadians. It is time for the government to scrap Bill C-11 and get back to the drawing board, once and for all.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

Madam Chair, you talked about the importance of looking ahead, and, sure, I think we can all agree to that. That's no problem. We can look ahead and anticipate what's to come. However, what I believe is perhaps unreasonable in this scenario is that we're being asked to put forward amendments without yet having heard all of the testimony that is to be brought forward to this committee. We don't know what those remaining witnesses might bring forward with regard to recommendations for amendments. There seems to be a lack of any sort of logic to enforce that or to make sure that we bring forward amendments before hearing from those witnesses.

I would highlight for the committee that the agreement we came to was not for a maximum of 20 hours. Nor was it a hard stop at 20 hours. It was for a minimum of 20 hours of witness time. I can appreciate that the last hour within that minimum framework will be granted— that is the right thing to do—so thank you, but also, let's acknowledge the fact that there are many more witnesses who have asked to come before this committee. Perhaps it is worth acknowledging that and seeing if it might be possible to give additional time.

For example, we have a bill in front of us that is going to have a direct impact on places or companies like Apple or Amazon or Roku, none of these has been invited as a witness, as far as I can tell, thus far. I'm wondering if there would be opportunity to bring forward witnesses such as the ones I have listed just now.

In addition to that, I think we as a committee have a responsibility to make sure that multiple voices are represented here on behalf of Canadians. That is our job. To rush this through without giving a chance for a variety of witnesses—including the ones I have listed—to be heard from seems irresponsible. Again, I would just encourage the committee to perhaps consider going above and beyond that minimum threshold of 20 hours.

The other thing I will state is this: It stands out to me that the CRTC chair, Mr. Scott, testified in this committee a couple of weeks ago, at which point he stated that the CRTC does have the ability to regulate user-generated content within the framework of this piece of legislation, Bill C-11, as it stands. That is interesting to me, and to many Canadians, because there is a charter statement that says otherwise and deems this bill charter-compliant.

The CRTC chair Mr. Scott and the charter statement cannot both be true. It would seem, then, that a new charter statement is required at this committee before we can move forward and consider the bill in clause-by-clause, because if in fact this bill, as it stands, is not found to be charter-compliant, then that would need to be revisited. Again, this committee would not be doing its diligence or functioning in a diligent manner if it did not take that into account. I would encourage this committee as well to call for a new charter statement before we continue proceeding to clause-by-clause consideration.

Madam Chair, in summary, I'm asking for two things. I'm asking that we consider the fact that when we discussed hours granted, we said a minimum of 20 hours, so there is opportunity to hear from additional witnesses who would like their voices to be added here at this committee.

The second consideration that I am putting before you as chair and the rest of the members of this committee is that a new charter statement is required in order to ensure that this bill is in fact compliant with the Canadian Charter of Rights and Freedoms. Again, I will highlight that there is an incongruence between the testimony of Mr. Scott and what the charter statement says.

[The Chair, Liberal, Hedy Fry]

Thank you very much, Mr. Waugh.

I am listening, and I have made a consideration. I would like to respond.

I think we had all agreed when we started and embarked on Bill C-11 in good faith.... I sat here and I listened to everyone talk to each other quietly in the room. We suspended in order to do that. It was not a question or a tentative suggestion. We had agreed that there would be 20 more hours of hearing witnesses.

By Thursday, June 2, we will have achieved 19 hours. I am certain we could ask the clerk if we could extend one of those meetings by one hour. She would try to find a way to do that, if everyone is insisting on the 20 hours. It is what we had all agreed on.

I think we have always had meetings where we were doing thing one and looking ahead to do item two. It is not unusual for committees to look ahead. We are looking ahead.

I have had suggestions from the floor. It is important that we respect the clerk and the legislative assistant and the legislative analysts, who would like us to give them some formal direction. It has been suggested by one of the members of this committee, and agreed on by two other parties, that in fact a hard deadline...or not a hard deadline, because Mr. Méla has told us that the deadline can fluctuate. If we have a deadline for the majority of amendments to come from this committee by four o'clock on Friday, it means that if on the weekend or on Thursday we hear some things that we want to change, Mr. Méla has assured us that we have the ability to do that while we're considering amendments. These can come from the floor.

I don't see that this is necessarily unfair. I think this is about good faith. This committee has always worked on good faith and on consensus. I think we saw that when we agreed on the 20 hours of witnesses.

What I would like to suggest is that the majority in this room...and I think I would like to hear if there is opposition to that hard deadline, because I'm going to call for a vote on it.

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

No, I think you responded. You said it's not okay. We've had some other witnesses who say that's fine and I deeply disagree with that.

You're saying it's not okay. You've had undoubted success. I gather from your testimony and your responses to questions that you see a role for Bill C-11, but what you're concerned about more is getting improvements within the bill.

In the discussions we've had today and the questions that you've had, are there areas specifically where you think Bill C-11 can be improved? You certainly talked about the CRTC and I understand that. Are there other areas where you think Bill C-11 can be improved so that it is a benefit, from your perspective?

As I mentioned, many of our witnesses have been strong advocates for Bill C-11.

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

Thank you very much, Madam Chair.

I would like to come back to Ms. Roy.

I found your testimony very interesting, because we've had, of course, a significant number of witnesses stepping up and very positively talking about Bill C-11. We've had a number of witnesses talking about amendments. We had some people who are opposed to C-11, but at the same time there seem to be very compelling arguments for it.

I want to come back to the issue of TV, and I would like you to respond to it. You mentioned earlier that it is curated, the streaming service. That's fair enough, but is that exclusion, that discrimination, something you feel we should be concerned about?

[Pierre Trudel]

In fact, the challenge is to update the regulations that all the countries of the world have deemed necessary to implement to ensure that everyone has a real voice and can have a say. Of course, the technical world of the Internet allows for many more possibilities. However, we have seen and are seeing more and more that the Internet, as it currently operates, is dominated by a number of large companies that are practically monopolies, and it is these companies that regulate the system.

So, indeed, the great challenge is to update the regulation not to try to keep some kind of dead regulation artificially alive, but rather to modernize the state's way of doing things. The presence of the Internet implies changes in everyone's way of doing things, including those of the state. I am among those who believe that Bill C‑11 will have to change the way regulations, particularly through the CRTC, operate to take into account the fact that we have a technological framework that is very different from the one that existed before.

What does not change, however, is the need to ensure the fair operation of this space for exchanges, which has become considerable and impressive. We need to make sure that it continues to work in such a way that Canadians also have a voice.

I think that is how Bill C‑11 should be viewed—not as an attempt to keep an embalmed corpse alive when things are dying. It is quite the opposite. There are opportunities, and we need to make sure the regulatory system works in a way that equips all Canadians to take their place in this different but challenging environment.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you, Chair.

Mr. Denton, I'm hoping you can weigh in here.

There's been a lot of talk around the Broadcasting Act and it needing to “be updated”. It's said that this is what Bill C-11 is all about. However, in your opening remarks you would say otherwise. I'm hoping that perhaps you can talk a little bit about how this bill is actually quite regressive in nature and how it brings speech under the control of government through the categorization of “broadcasting”.

[Pierre Trudel]

In fact, the issue of algorithms is crucial, because by default, that's how speech is regulated in the large platforms. At present, it is the companies that own these large platforms that have control over the algorithmic processes, and it is they who are targeted by the bill. Let's not kid ourselves. It is not individuals who are targeted, but the large companies that own the large platforms. However, these algorithmic processes have the disadvantage of being very opaque. They are not very visible. We do not know how these platforms and algorithms work, and no independent authority is in a position to know.

The strength of Bill C‑11 is that it puts in place mechanisms that will allow an independent body, the CRTC, to hold the major platforms accountable, particularly with respect to the operation of their algorithms.

Are the algorithms of these platforms compatible with the principle and values of inclusion that we cherish in Canada? Do these algorithms discriminate against some of our fellow citizens, for example against LGBT+ groups, which were mentioned earlier? We don't know at this point. We must rely on the good faith of companies, and I do not doubt their good faith. In fact, if these companies are acting in good faith, they should have no difficulty explaining how these algorithms work and demonstrating that this is completely compatible with Canadian values, particularly with regard to equality.

[Tim Louis, Liberal, Kitchener—Conestoga, ON]

Thank you very much, Madam Chair.

I want to thank all our panellists for being here today. It is much appreciated.

I will direct my question to Professor Trudel.

Much of the debate on Bill C-11 has muddled a very important distinction. The Internet does not simply equate to social media platforms, and platforms don't equate to the whole of the Internet. Social media platforms are headed by companies that are making tutorial, algorithmic, data-led business choices every day in running these platforms, and that has a direct impact on creators on these platforms and the users themselves.

Can you speak on this distinction and on why it's important that we study Bill C-11's regulatory obligations for these companies?

[Rachael Thomas, Conservative, Lethbridge, AB]

I'm super-impressed. I want to be like you when I am 45.

For my next question, I want to ask you about CanCon and discoverability. Under Bill C-11, we know that anything that falls within the definition of CanCon will be bumped up in the queue. In other words, it will be forced in front of the eyeballs of Canadians in order to give it preference, in order to “promote” it. However, it is my understanding that this will have a detrimental impact.

I'm hoping that, as an individual who uses YouTube largely as your platform and TikTok as well, you could comment on what this will do to you.

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

Thank you, Madam Chair.

I want to follow up on Monsieur Trudel's comments about the exclusion about TV. I'll direct my questions to Mr. Palmer, Mr. Denton and Ms. Roy.

We had testimony last week where OUTtv was excluded from a number of streaming platforms, which were basically saying they weren't interested in LGBT content and won't put that content on their platforms. We've had some proponents—people who are opposed to C-11—saying that they don't want gatekeepers for the streaming services, but it seems to me that this is a key example of big companies acting as gatekeepers in an exclusionary and discriminatory way.

I wanted to get comments from each one of you about this exclusion. For OUTtv, the company was basically saying that they're not going to have that content, without explanation. It could be indigenous peoples or it could be racialized people. There is a whole range of content right now that companies basically can choose, as they did with OUTtv, to exclude. There's no regulatory oversight.

Mr. Trudel testified that C-11 has an advantage of bringing to bear some regulatory framework.

I'm going to start with you, Mr. Palmer. How do you feel about that exclusion? Do you feel that companies are acting as gatekeepers? Would you admit that in this case it's very clear that their acting in that way?

[Martin Champoux, Bloc, Drummond, QC]

Thank you, Madam Chair.

Mr. Trudel, I'm turning to you once again.

I found the end of your exchange with Mr. Bittle interesting. Some people say that no country has regulations on digital platforms and online businesses that are as invasive as Bill C‑11. Yet in your column in Le Devoir on May 3, you talked about the European bill on digital services, which aims to make platforms accountable in general, especially for illegal content, violence, and so on, but which also addresses transparency in the operation of recommendation algorithms.

Tell us a little about this European approach.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you very much, Professor.

Past witnesses have speculated that leaving the door open to regulating user-generated content might invite the CRTC to censor individual posts in the future.

Could you explain how proposed paragraphs 3(1)(g) and (h) prohibit this in Bill C-11?

[Pierre Trudel]

As I understand it, the CRTC does not have the power to impose taxes. This bill does not give it the power to do so, and certainly not with respect to digital creators. I don't see where Bill C‑11 would give the CRTC such power.

The bill does, however, ensure that companies that earn revenues from the Canadian market reinvest them in Canadian creation.

[Timothy Denton]

The basic point is that the current regulated universe has about 4,000 to 5,000 entities. With Bill C-11, the range of entities that would come under CRTC jurisdiction may get up to several million. Indeed, there are no limitations, as far as I can see, on the range of sources because it's just an IP address, of which there are billions, so take your pick.

The basic premise of Bill C-11, and the broadcasting telecom review that preceded it, is an almost infinite faith in the wisdom, capacity and talent of government to make complex and difficult decisions. A government is good at making some decisions sometimes, but with the range of authority being handed over to these people, who are only human, after all, and very much bound by law and regulation to make decisions in a slow and deliberate way, it won't work.