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.

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

You're right.

I'll move over to you, Mr. Denton. What are your thoughts?

I think that public policy and public confidence in the CRTC are low in this country. I will say that. We have seen some decisions they've made, and some that they haven't made for up to 11 years.

Is there any way we can have some trust in the CRTC to follow through on regulations on Bill C-11, as you see it?

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

Yes. I'm worried about Bill C‑11, but I'm more worried about Bill C‑18. As you know, because you were there, you had no business in newspapers. The CRTC will now be chosen to pick winners and losers, but that's for another battle with Facebook and Google.

What recommendations would you make, because you were on the CRTC for five years, that would give us, let's say, some confidence that it is capable to deal with Bill C‑11? Is there anything you can point out so that it would listen, as we are today, and take heed of an experienced person like yourself? Perhaps we can look forward to a couple of suggestions that would provide us with at least a bit of confidence in the CRTC.

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

Thank you, Madam Speaker.

Welcome, guests.

I'll just be honest. I don't share the enthusiasm that some of you have for the Canadian Radio-television and Telecommunications Commission, CRTC. Mr. Palmer and Mr. Trudel have been talking about the CRTC. We've waited 17 months for the CRTC to approve the licence of the CBC, the public broadcaster. We've waited a year now for a three-digit system for suicide, and I have some others.

On July 20, 2015, the CRTC said it would review the French-language music policy. Today, almost seven years later, the CRTC still has not finished that review. In 2008, it said it was going to review the 1990 indigenous policy and implement a new policy in 2011. Well, 11 years later, it still has not finished that review.

Mr. Palmer, you were there in 1991 for the Broadcasting Act. Am I incorrect in my assumption that the CRTC is well over its head. There's no way that it can possibly look after Bill C‑11, when I've just stated four or five issues that it hasn't dealt with in the past 11 years.

What are your thoughts on that?

[Pierre Trudel]

Yes. In my opinion, there are two ways to improve Bill C‑11.

First, I would remove the proposed provision that prohibits the CRTC from requiring the use of algorithms or software solutions. These are tools that can be useful in regulation. I don't understand why the CRTC would be prohibited from using tools of this nature if it deems it appropriate. In my view, subsection 9.1(8), which the bill proposes to add to the Broadcasting Act, should be deleted.

On the other hand, I would add something in the bill about the requirement for the CRTC to hold public hearings. It says that the CRTC will be able to make orders to impose conditions on undertakings that will be regulated, that is, those that have a significant impact on Canadian broadcasting policy. It seems to me that the CRTC's issuance of such orders should be conditional on the holding of public hearings at which everyone can be heard and make their views known. In my view, this is a tradition of Canadian broadcasting policy that should be maintained.

In Canada, we have been successful in creating a national dialogue on these often difficult and controversial issues. The CRTC has been, and should continue to be, that forum in which any actions or orders it considers could be openly debated by all citizens and interested groups. For this reason, I believe that the CRTC's obligation to hold public hearings should be expanded so that it also applies when it makes orders.

So those are the two improvements that I think could be made to the bill: removing the prohibition on requiring the use of software and expanding the obligation to hold public hearings.

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

Thank you very much, Madam Chair.

I also thank all the witnesses. We are very happy that they are here, because their testimony is important.

We have been having witnesses here since last week, and the overwhelming majority of them support Bill C‑11. Some of them have proposed amendments to us.

I will start with Mr. Trudel.

You said you support the bill. Do you still find that it could be improved?

[Pierre Trudel]

I do not share these concerns. The Broadcasting Act already gives the CRTC full discretion, and more importantly, requires it to deal only with activities that have a demonstrable impact on the achievement of Canadian broadcasting policy. In the past, the CRTC has used the current section 9(4) of the Broadcasting Act to avoid regulating precisely what it did not have to regulate, to the extent that it did not affect the achievement of the policy.

It seems to me that we could just as easily have been content with this approach, which, in my view, offers the best safeguards to ensure that we do not regulate services that have no demonstrable impact on the achievement of the objectives of Canadian broadcasting policy.

If we had avoided introducing what has been introduced in Bill C‑11, I think we would have a much clearer law.

[Martin Champoux, Bloc, Drummond, QC]

You were there when our committee was studying Bill C‑10 last year. We had the opportunity to talk to each other a few times. This year, we're looking at Bill C‑11, and as you can see the incorporation of section 4.2, which has been rewritten, into the Broadcasting Act is being proposed once again.

What do you think about the return of the proposed section 4.2 to the bill, which is causing a lot of reaction? Do you think it is clumsy? Do you think it is well written? How do you rate people's concerns about this section?

[Pierre Trudel]

The option that was chosen in Bill C‑11, as I understand it, is to bring broadcasting and transmission activities that use the Internet medium under the Broadcasting Act. There may have been another option. For example, the Yale Report, entitled “Canada's communications future: Time to act”, recommended instead that an entirely new communications act be created, which could have considered these issues in a different way.

There is one constant between the Broadcasting Act of 1991 and the bill currently before you, and that is the concern that companies that benefit from the Canadian audience in the broadcast of their programs contribute to the financing of the production of Canadian programs. This is the basic philosophy of the 1991 Broadcasting Act, and this is what the current Bill C‑11 seems to want to carry forward.

Broadcasting in Canada is not viewed primarily as a market in which there are suppliers and consumers. It is a tool for societal cohesion, through which we want to ensure that everyone has a voice, that there are services in both official languages throughout the vast territory, and that indigenous peoples have a say and an opportunity to have a voice in the system.

So, it's not just consumers using the Internet to broadcast their programs, which is perfectly permissible and legitimate. Indeed, that is why the act provides that the CRTC has the authority to target only those activities that have a demonstrable impact relating to Canadian broadcasting policy objectives. That is the strength of the act, it seems to me.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you very much.

I have a quick question for Mr. Denton.

Mr. Denton, I'm referring to a Financial Post article where you refer to the guiding principles on diversity of content online, which is essentially the policy document associated with Bill C‑10. You called it “totalitarian”, and you essentially compared it to communist Russia under Brezhnev.

Is your feeling that Bill C‑11 is also leading to a totalitarian state similar to communist Russia under Brezhnev?

[Philip Palmer]

First of all, there is nothing that distinguishes Bill C-11 from Bill C-10 in terms of the constitutional issues that are raised, and there's nothing that makes Bill C-11 more constitutionally acceptable.

The uncertainty that this is going to lead to is that it will hang over the system until the Supreme Court has spoken. The question is really, who is going to then challenge federal jurisdiction over broadcasting? I can't predict who that will be, but it's likely to be some Canadian domestic player that has enough means to finance itself, but not enough means to.... I don't believe the large players are going to be the people who are going to challenge.

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

Thank you so much, I appreciate that.

I want to turn to Mr. Palmer and use some of your expertise as a justice department lawyer for several decades. You wrote an article in relation to the former Bill C-10, called “C-10: An Unconstitutional Power Grab”. One of the lines used in there was:

Years of litigation and uncertainty will be the inevitable result of the legislative overreach of the federal government under the guise of broadcasting legislation.

I want to ask you whether you believe this is still applicable to the current Bill C-11 and what you foresee happening in the months, years and decades to come after the implementation of this bill? What types of challenges do you see from a legal standpoint or a constitutional standpoint going forward?

You touched on it a bit in your opening comments, but if you could expand on that, I'd appreciate it.

[Timothy Denton, Chairman, Internet Society Canada Chapter]

Thank you.

Good morning, ladies and gentlemen. Thank you for asking us to appear.

I'm Timothy Denton, and I'm chairman of the Internet Society Canada Chapter. Its membership consists largely of former regulators and senior public servants, Ph.D. candidates in communications and professors, together with others interested in communications policy from a pro-Internet perspective. Every branch of the Internet Society is independent of every other one, and all rely on voluntary efforts.

My background is in telecommunications and broadcasting law. I'm a lawyer by training and I have a master's degree in law and communications from the University of Ottawa. I worked at the CRTC in the late 1970s and later I was policy adviser to the minister of communications in the period when we developed the Broadcasting Act of 1991.

Possibly more important, I've also been on the board of the American Registry for Internet Numbers and the Canadian Internet Registration Authority, as well as participating in various bodies that form part of the Internet Corporation for Assigned Names and Numbers, which is known as ICANN.

I found that, by listening carefully to the engineers and technologists, I learned a great deal about how the Internet works and what its basic features are. I served as a national commissioner of the CRTC under chairmanships of Konrad von Finckenstein and Jean-Pierre Blais from 2009 to 2013.

One of the strangest experiences I had was to come back to the CRTC after a gap of 30 years to find that the mentality had not changed since I'd been there in 1979. The Internet was still referred to as “new media” despite the fact that the Internet had taken shape in 1974. People would go home to watch Netflix but the phenomenon they were watching had no bearing on their jobs. It was as if by casting a magic spell over the Internet by calling it “new media” they could capture it for Canadian broadcasting regulation. In fact, this is the essence of our critique of the new Bill C-11.

There is a fatal ambiguity at work in Bill C-11. It is spoken about as if it were an act to modernize broadcasting law. If that were so, then the act could work by subsidizing Canadian TV productions out of streaming revenues. Various speakers before you, such as Peter Menzies and Michael Geist, have spoken to this effect.

It is the contention of the Internet Society Canada Chapter that the ambitions of government as expressed in this bill are much wider.

The language of Bill C-11 has so defined the word “program” to include any moving images or sounds or sounds and moving images. It has so defined the CRTC's regulatory authority that it covers anything that might engender revenues directly or indirectly. The chairman of the CRTC observed recently that the bill would give the commission authority to regulate user-generated content.

Broadcasting is a form of communication that requires government licensing or regulation. The Broadcasting Act contains very severe penalties for broadcasting without a licence. The act lays out hundreds of thousands' and millions of dollars' worth of fines. Bill C-11 maintains this in its entirety.

By contrast, think about writing, speaking or printing. You do not need a government licence to pick up the phone and talk, nor to write an email. The regulation of speech takes place after one has spoken, not before. Unique to the 20th century, broadcasting reintroduced the idea of the need for prior government permission to be able to communicate using specific technologies. This made sense when broadcasters used airwaves with early radio technology. When very few spoke to millions, there was strong argument for regulation of broadcast speech.

Make no mistake. This bill as written is about speech controls when talking using audio or audiovisual means across the Internet. Indeed, by the expansion of this logic in Bill C-11, the government might just as well define email and talking on the phone as broadcasting.

BillC-11 could be better retitled from online streaming to an act for the regulation of communications across the Internet. It would be a more honest and accurate title.

Thank you. I await your questions.

[Pierre Trudel, Professor, Université de Montréal, As an Individual]

Thank you, Madam Chair.

Members of the committee, colleagues and fellow participants, good morning.

I am a professor of law at the University of Montreal and, since 1979, I have taught the Broadcasting Act. I participated in the drafting of the new Broadcasting Act of 1991, including as research director of the Caplan-Sauvageau Task Force, which was responsible for the current version of the Broadcasting Act.

The purpose of Bill C‑11 is to ensure that all undertakings engaged in the business of broadcasting and distributing programming by means of the Internet or otherwise operate in harmony with the requirements of Canadian broadcasting policy, which is set out in section 3 of the Broadcasting Act and which the bill in fact proposes to amend and supplement. By proceeding with this long overdue update, Parliament will be engaging in a necessary catch-up exercise in the development of the legislative framework for the broadcasting of audiovisual creations, which are increasingly dependent on online environments.

This upgrade is essential to ensure that our communications system functions as a conduit that carries information of all kinds, and also gives Canadians the effective opportunity to choose programming or to produce and broadcast programming that reflects the rich diversity of our society and the existence of Canada's official languages and the languages of indigenous peoples.

Since 1991, the Broadcasting Act has had very clear provisions prohibiting the CRTC from making decisions that would violate freedom of expression. It is unfortunate that because of unsubstantiated allegations that the proposed amendments to the Broadcasting Act may result in regulations that would infringe on freedom of expression, the legislation has ended up with all sorts of exclusions and supposed clarifications that only make the text more cumbersome.

Nonetheless, the wording that Bill C‑11 proposes for paragraphs 3(1)(q) and 3(1)(r) of the Broadcasting Act is to be welcomed. These additions explicitly address the need to promote the discoverability of Canadian works. In this sense, the legislation adjusts Canadian broadcasting policy to the context of online environments.

On the other hand, subclause 9.1(8) that clause 10 of Bill C‑11 proposes to add to the Broadcasting Act, as drafted, would introduce an unnecessary and dangerous exclusion. This subsection removes the ability of the CRTC to require or regulate the use of particular computer algorithms or source codes.

Taking away this ability of the CRTC to mandate the use of technological tools that are consistent with the ways in which online environments operate would paralyze the regulator's action. It would be forced to limit itself to the tools of the past in order to regulate future technological situations.

In my view, there is no rational reason to exclude the possibility of imposing the use of software tools to ensure that undertakings operate in accordance with the principles and objectives of Canadian broadcasting policy. I remind you that that policy aims to be inclusive of minorities, such as persons belonging to racialized groups and sexual minorities, as well as to ensure the place of indigenous peoples in the overall system.

I will conclude by saying that to ensure the transparency of the act, it would also be appropriate to ensure that the making of orders by the CRTC under clause 16 of Bill C‑11 be subject to public hearings.

I am, of course, available for further discussion and to answer your questions.

[Oorbee Roy, Digital Content Creator, As an Individual]

Hi. My name is Oorbee Roy. I'm a mother, wife, skateboarder and Canadian. I come here as an individual who's trying to make a living as a digital content creator to discuss Bill C-11 and how it affects me.

I don't have a million followers. I don't make hundreds of thousands of dollars. I am climbing my way up slowly and methodically, trying to make a living in this space.

Bill C-11 and so many parts of it are fantastic. I appreciate that the intent is to try to help Canadian artists and creators. In theory, pushing out Canadian content on user-generated platforms sounds fantastic—Yay!—but there are a few things concerning to me that should be addressed and understood.

Number one is that, as it currently stands, I don't qualify as CanCon. It is very difficult for small creators to qualify. The platform, which can only push out so much content, will be regulated and will be forced to show big media qualified CanCon 40% of the time. That means I'll have to fight against other small digital creators within that remaining 60% space for visibility.

Number two is that, if I do qualify, then as it stands, each piece of content has to be approved by the CRTC. That means I'll have to wait for the bureaucratic machine over at the CRTC to regulate my “five steps to start skateboarding” video. User-generated content does well when it follows current trends, but by the time my video is approved, I'll miss the trend and my video will bomb.

Number three is that platforms will pay into the CRTC, but I won't see a dime of that money, because as it stands—say it with me—I do not qualify for CanCon. If the platforms are redirecting that money to CanCon, then instead of putting the money into workshops or training or other professional development opportunities for creators like me, it will go to CanCon-approved media outlets.

How does that even make sense? Not only does this bill not help me. It also hurts me and actively undermines my needs as an artist. There's no language in the bill to tell me otherwise.

Frankly, I don't qualify. I'm just not the right fit. That I'm not the right fit is a story I've been told my whole life. I'm too brown. I'm a nerd. I'm too old. I'm female. I'm not feminine enough. I'm not the right demographic, but I've never been the right demographic. My voice has been suppressed far too many times. That's not an easy thing to do, because I have a pretty loud voice.

Somehow along the way, I discovered a platform that allows me to tell my story as I see fit in my own voice. Other people are indeed interested in my story. Somehow this tall, brown, old and somewhat-out-of-shape mom who skateboards resonates with people all over the globe. Authentic, inspiring, genuine content—that's Canadian content.

Listen, I've studied the algorithm at length. I don't exactly know how the algorithm works, but I do know this to be true: Every time a video of mine goes viral, which is not all the time, opportunity comes knocking. For example, the team at TikTok Canada invited me to a Canadian movie premiere of a Canadian movie, where I got to interview a Canadian actor, Ryan Reynolds. I made some TikToks about it. One of them went viral, with 7.2 million views globally—it was a good video—and guess what happened? TV stations started calling me. I signed three global brand deals. In fact, Scott Benzie from Digital First Canada helped me get one of those deals.

If my video is suppressed because the CRTC decides that someone else's content should be artificially pushed over mine, I lose my ability to get in front of my audience. That directly affects my bottom line.

The language of this bill matters. Please, sure, help—great, fantastic—but make sure the language is clear. Minister Rodriguez stated that online streamers don't contribute to Canadian culture: “[It's] very simple. Platforms are in and users are out.”

Herein lies the problem. With all due respect, the minister does not understand the language, and that can be dangerous. “Platforms” are in but “users” are out. My husband, who watches skate videos, is a user, whereas I make a living on the platform as a creator. Without creators, there is no platform for users to watch. To me, then, he's saying that platforms, and by extension creators, are in, but users are out. That's what's concerning to me. A lack of understanding leads to a lack of clarity. Please make it clear or leave that section out.

I want to thank you for taking the time to listen to me. I literally have never gotten a seat at the table—except now, as a digital creator, I'm getting a seat at the table. Representation matters. If I, as a 47-year-old South Asian mom, can earn a living as a skateboarder, then literally anything is possible. Please don't suppress my voice.

Thank you.

[Philip Palmer, As an Individual]

Madam Chairperson and honourable members, it is an honour to be able to speak to you today and to address C-11.

For more than 30 years, I was a lawyer with the Department of Justice and held a number of senior positions within that department. One of my most memorable and rewarding experiences was to have worked on the drafting and adoption of the 1991 Broadcasting Act. In the course of that work, I became keenly aware of the policy, constitutional and regulatory issues surrounding broadcasting.

Broadcasting regulation is a regulation born of scarcity. Radio waves were and remain a scarce resource. Initially, few persons could be licensed to broadcast to the public. A limited number of licensees meant that a broadcaster could potentially abuse its communications power to manipulate and abuse the public opinion. This, in turn, led to a form of comprehensive broadcasting regulation.

As the carrying capacity of cable increased over the years, the scarcity argument for broadcasting regulation weakened. It was our belief, back in the late 1980s and early 1990s, that in a 500-channel universe, comprehensive broadcasting regulation would no longer be necessary.

We now live in the Internet age. The Internet is not limited to 500 channels. It has virtually unlimited capacity to permit every form of communication and permit any member of the public to hear an extraordinary diversity of voices. Canadians operate 160,000 channels on YouTube alone. There is no scarcity on the Internet.

Given the bounty of content on the Internet, it is both counterintuitive and, frankly, shocking to witness not the dismemberment of the broadcasting regulation but its extension to the whole of the Internet.

I want to briefly make four points.

First, the impulse to use the Broadcasting Act to regulate the Internet is grounded in concerns of protecting an existing industry. It has no justification in terms of protecting broader public interests.

Second, C-11 lacks a foundation in Canadian constitutional law. Internet streaming services do not transmit to the public by radio waves, nor do they operate telecommunications facilities across provincial boundaries. They and their audiences are the clients of telecommunications common carriers, which are subject to federal regulation. Netflix, for instance, in this case is no more a federal undertaking than a law firm such as McCarthy Tétrault or a chain store like Canadian Tire, both of which rely extensively on telecommunications services.

The third point is that the mere fact that some Internet services compete with traditional broadcasters is not a justification to extend federal regulation over Internet services. Looked at historically, successive forms of delivering popular culture have had their moment in the sun. There has been a progression from vaudeville to movies to radio to television to the Internet. What we see at play today is not some demonic plot by Internet interlopers. What we see is the creative destruction of capitalism. C-11 is not a solution to the problems of broadcasters, but it is an active harm to those who create and disseminate content on the Internet.

Fourth, and lastly, the issues that underlie C-11 are not the ones that can be resolved through regulations. They are largely questions of money. I believe C-11 should be focused on ensuring that the web giants contribute to Canadian programming, not on regulating them.

Thank you. I look forward to your questions.