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

[René Villemure, Bloc, Trois-Rivières, QC]

Madam Speaker, I worked as an ethicist for 25 years and I am against censorship.

My hon. colleague was talking about freedom of speech, but freedom does not give people permission to say whatever they want. This is an important distinction. I would like to know how he plans to make that distinction if there is more regulation.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Madam Speaker, this is another issue I addressed in my speech. There are reasonable limits placed on freedom of speech through both common law and court cases, as well as through the Criminal Code, on things we can and cannot do. I think those are the appropriate vehicles to moderate and protect. We do not have unlimited rights under the charter. All rights, including freedom of speech, have some restriction on things like hate speech.

If there are additional areas or issues that need to be regulated in terms of criminal behaviour, that is the limit on which we should be focused in terms of limiting free speech. I do not think we should be using the CRTC, an independent and unaccountable government agency, to regulate free speech.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Madam Speaker, I know the member may have touched on this aspect briefly in his speech, but living beside the United States, we are living beside a giant, and the web giants have incredible power. Our artists and our cultural producers really struggle against that dichotomy. Those web giants are really trying to circumvent our tax rules, our funding for Canadians cultural content and its discoverability.

I would like to hear the member expand a little more on how we can try to even the playing field to have more fairness for our important artists and the artistic sector here in Canada.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Madam Speaker, that is a great question. As I did touch on a bit, and I get a little chance to expand on it here, the levelling of the playing field with online web giants in creating Canadian content is a very good aspect of the bill and one that I appreciate. With regard to the requirement for them to either produce Canadian content at certain levels or contribute to the Canadian content fund, my only challenge is to figure out where in the bill it balances and says what that level of support would be and what the money would be. That would be in regulation, I suppose, so we will have to see that, but it is a positive part of the bill.

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

Madam Speaker, it is an honour to rise today and speak to Bill C-11 and to continue this discussion that has been going on for quite a while. It has been at least a year since a bill similar to this one was introduced in the last session of Parliament. That bill, unfortunately, did not make it past the finish line, but what we have here is an improved version of the bill we saw before, a bill that tackled some of the challenges and obstacles, rightly or wrongly, that were put forward in particular by the opposition.

I want to go back to one of the comments that was made just a few minutes ago by the Conservative member who was responding to questions. He said something very important. I think it is important because it represents a lot of the narrative that we are going to hear over the next few days.

I forgot to mention that I will be sharing my time with the member for Parkdale—High Park.

We will hear a lot of the language that is being used. We just heard the previous member say that we do not want to allow the government to control what people watch. If anybody is going to be following this debate, I want them to pay close attention to the fact that as the debate goes on over the next few days or weeks, we will hear that language quite a bit from the Conservatives, because this is the exact language they used last time. It is language that tries to suggest to Canadians that the Government of Canada sits behind a desk and decides what people can watch and what they cannot watch. Nothing could be further from the truth. What the original bill did and what this bill is proposing to do now is not to regulate what people watch but to broaden the pool of what is available to them.

If someone has the perspective that we should be homogeneous in terms of everything that is in front of us since we live in North America, that there is no problem with being just like the United States, that we do not need our own individual identity and individual culture, then that is one thing. If that is somebody's position, although I disagree with it wholeheartedly, at least that would be the position of someone who still understands the facts. However, in fact this bill does not suggest that. What this bill does, and what I prefer, is that we provide Canadians with the opportunity to watch programming that is produced by Canadians and for Canadians as an option that someone can watch.

It is very similar to the CanCon rules that apply to radio stations. Right now, if someone in Canada has a radio station that broadcasts over FM and AM bands, they are subject to a rule that a certain amount of the content that is played during the day has to be Canadian content. I live in a border city that is not that far from Watertown, New York, and quite often we find radio stations trying to circumvent those rules. They would set up their transmission tower in Watertown, even though all of the broadcasting was happening in Kingston. It was being sent over to Watertown, New York, where it was then being broadcast from towers, and I am sure over 90% of the listenership was Canadian people because the broadcast audience was a Canadian audience in Kingston.

As the technologies develop and as we see new technologies come online and as the Internet becomes a dominant force in the consumption of content, it goes without saying that if we believe in making sure that Canadian content is in that pool of availability for those who are consuming it, we have to ensure that the Canadian content is there. That is the difference.

This is not about controlling what people see. I trust that we will have a more thorough debate on it this time around, but the rhetoric last time with Bill C-10 came down to suggesting that the federal government was trying to regulate all social media in order to determine what was put in front of people on the Internet, and that could not be further from the truth. This has always been about making sure that content is available.

What does this bill do specifically? Let me just highlight some of the important points. It brings those online streaming services under the jurisdiction of the Broadcasting Act because, as I previously mentioned, they are not. It will require online streaming services that serve Canadian markets to contribute to the production of Canadian content. This is what I was talking about. When Netflix or these other agencies are selling to Canadians, they have to invest in Canadian culture and Canadian-produced content.

Again, we might not agree with that. We might think that we are so globalized now that we can just get everything from wherever we want, and that should not matter. That of course is a position to take on this matter, but it is not the position that I take. It is not the position that the bill seeks to improve upon, because we recognize that it is extremely important that a portion of that content remains Canadian.

This also prioritizes support for content for francophone, indigenous, LGBTQ2+, racialized and other equity-seeking creators. It ensures online broadcasters will showcase more Canadian content, as I previously mentioned, and it modernizes outdated legislation to bring it into the 21st century.

It is also important to talk about what the bill will not do, despite the fact that I do not think that even my saying this now will change what we will hear. We are going to hear people in the chamber over the course of this debate say that it will do these things, but it will not impose regulations on content everyday Canadians post to social media. If someone uploads something to YouTube, they would not be subject to it even if they have a lot of followers, unless they are making money off it, in which case they would be similar to other businesses making money off it. There is an important point there that I will get back to in a second, because even those who do upload will not necessarily be subject to this.

It also does not impose regulations on Canadian digital content creators, influencers or users, as I said, and it will not censor content or mandate specific algorithms on streaming services or social media platforms. I have already touched on this point, but it is important to mention it again because this is what we will hear over the course of this debate. We will hear that the Prime Minister is personally sitting behind a computer somewhere trying to set an algorithm so that people see more content that he likes.

I know we are going to hear that, because that is the rhetoric that happened with Bill C-10. I have no doubt that we will hear it again with Bill C-11, although I really hope that we do not, but if history is an indication of anything in the House, when these issues come up, Conservatives know exactly which ones are going to be the ones that they can push that will engage public reaction whether or not they are true.

I want to go back to the first comment I made when I was talking about the things it will not do, which was to impose regulations on everyday Canadians. This is important, because the member who spoke previous to me brought up the fact that if someone uploads a video or content and they are making money off it, they are subject to legislation. That is actually not true. There are three criteria, and these are “and” criteria, not “or” criteria, that need to be met in order for something to be considered commercial content. In determining whether the content is commercial content, the regulator will need to evaluate three elements. One is whether the content is monetized, which goes to the member's comment a few minutes ago. However, two other things also have to be present. One is whether the content exists on another non-social media platform, such as Spotify, the radio or TV. The other is whether the content, such as a song uploaded to YouTube, has a unique international standard music number. Those are the three items that need to happen for this legislation to apply.

The previous statement that somebody would be subject to it as long as they are making money off it is actually not the case. There are three criteria that need to be met.

I know that my time is coming to a close, but I wanted to say what this really is about. I hope that everyone will at the very least support the fundamentals of ensuring that the Canadian pool of content remains robust and available to Canadians, because if we look back at the decades that have gone by, the last 70 years or so, the Broadcasting Act, even though it did not apply to the Internet, is what made sure that the content remained available for Canadians to see.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

Before I go to questions and comments, I want to remind members that if they have thoughts and questions, they should hold on to them as opposed to shouting them out.

Questions and comments, the hon. member for South Shore—St. Margarets.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Madam Speaker, I am sure that the member, had he been listening to my speech, would have known that at the beginning I said that I appreciated that the bill actually does say that the algorithms are protected. I did say that in my speech.

Specifically, since the member spent a bit of his speech discussing my speech, which was very flattering, I will read what the bill actually says:

In making regulations under subsection (1), the Commission shall consider the following matters:

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

In (b) and (c), the bill does not say “and/or”. It does not say any of that. It lists three different things. Any one of those things, individually, can be regulated according to the act.

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

Madam Speaker, that is an excellent point. I want to make sure it is known that I did not suggest that the member was saying that the government could control the algorithm. I said that I heard that last time and I expected some comments to that. This member certainly did not comment about that in his speech. I listened attentively to what he said.

His is an excellent point. My understanding is that it needs to be all three of those things. Therefore, I think that this should be one of the topics that comes up in committee, to make sure that this is the case, because it should be that way. I certainly read it to be that way and that is my interpretation. I hope that when the bill gets to committee, that can be clarified.

[Caroline Desbiens, Bloc, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Madam Speaker, I thank my colleague for his speech.

I am hoping he could provide more clarification on a glaring problem. Artists in the cultural sector and in broadcasting are losing a huge amount of money, some $70 million to $80 million a month, and there is no end in sight because of clause 4.1.

I would like some assurances from the member about the notion of freedom of speech, the lifeblood of the Conservative Party, which, unfortunately, is what caused the hold-up with the previous version of this bill and which is costing our creators and artists $70 million to $80 million every month.

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

Madam Speaker, the member is absolutely correct. I agree that this keeps coming back. Every month that goes by, more and more people are suffering as a result of this. I think it was very unfortunate the way this bill played out in the winter and spring of 2020. It inched along so slowly. We saw delay after delay and then, at the last minute, just before the House and the Senate were going to rise, the bill, Bill C-11, was voted on.

At the end of the day, I agree with the member that making sure we protect Canadian culture and Canadian content is absolutely imperative. The quicker we can get this through, the more we will be able to do that.

I know the member is from the Bloc. Quebec certainly has a strong and robust sector as it relates to film and audio in one of our official languages, but there are so many other companies throughout the rest of the country that are equally doing so in English and we need to continue to preserve that.

[Matthew Green, NDP, Hamilton Centre, ON]

Madam Speaker, in my lifetime I have watched a dramatic shift in the media landscape, from local newspapers to the conglomeration of these multinationals. We have gone through from Web 2.0 to Web 3.0.

Has the government made consideration for the shift in the distributed model of user-created content? I will give an example. For instance, we have a company like TikTok, which provides content creator funds everywhere else, but not in Canada.

How are we going to ensure that the individual creators who are Canadians and who are creating content are adequately compensated, and not create a situation where the fund just goes to the multinational conglomerates that have completely captured our traditional media?

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

Madam Speaker, the member raises an excellent point. I will be the first to say I do not have an answer to that. I certainly hope that the committee will look into this issue at that stage.

If what the member is suggesting goes beyond just this piece of legislation, then that is something we need to tackle because it is absolutely detrimental to Canadian culture and Canadian identity, and we need to continue to make sure that the proper funds are available for product and content that is made in Canada.

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of International Trade]

Madam Speaker, since I last rose five days ago, Mr. Putin in Russia decided to, very unceremoniously and aggressively, invade a sovereign nation. I want to express my absolute solidarity with the people of Ukraine, in terms of showing gratitude and appreciation for their bravery in the face of this blatant aggression and violent and unlawful act, and to simply state, in terms of representing my constituents of Parkdale—High Park, that I will continue to advocate with every fibre of my being for the well-being of Ukraine and for the well-being of Ukrainian-Canadians, for assisting them in any way, shape or form in terms of assistance militarily, assistance with their defence and assistance with immigration, and in terms of restoring peace to their land.

I want to turn now to Bill C-11, and I will start with Canadian content creators.

I learned a heck of a lot about Canadian content and Canadian creators during the course of the 42nd Parliament, when I served as the parliamentary secretary to the minister of heritage at the time: the current Minister of Foreign Affairs. What I learned about was the voluminous contribution that these content creators made to the Canadian economy. In some respects, it is either equivalent to or outstrips contributions from sectors such as the mining sector in this country. It is staggering the amount of GDP output that is attributable to Canadian content creators. Around $19.7 billion of Canada's GDP and approximately 160,000 jobs are linked to things such as publishing, writing, music, producing theatre, producing film, producing television products, etc.

My riding of Parkdale—High Park, which I have the privilege of representing for the third straight time in this Parliament, is home to many of these creators. They have explained to me what they do for a living and how it contributes to the Canadian economy, but they have also said where their trade and craft is suffering and they have walked me through these steps. We have heard from the member for Kingston and the Islands and some of the other members in this debate who have talked about where we were about 30 years ago, when we had the Broadcasting Act, and where we are now. Where we are now is a fundamentally different place. People consume, view and listen in a completely different manner from how they did 30 years ago when the Broadcasting Act was last touched.

Why is this relevant? It is relevant because it is incumbent upon us, as parliamentarians, to make sure that our laws are responsive to the current state of the nation. Our laws need to be reflective of current norms, current technological features and current aspects of day-to-day life. That is really critical. For decades, our system guaranteed the creation of Canadian movies, TV shows and music that made us proud because we ensured that traditional broadcasters, such as Bell and Rogers, were contributing to such Canadian content.

Why is that critical? It is critical because we live next to a very large nation that creates a whole lot of cultural content. It is very easy to be dwarfed by that content, particularly in its English-language form, if we are not supportive of Canadian content. We adopted these ideas about mandatory contributions financially from Canadian broadcasters, which are usually through a television screen, ensuring that they could then help us create the next Kim's Convenience, the next Schitt's Creek or the next The Beachcombers. I know I am dating myself. I am a bit older than I look. However, that kind of cultural content is critical. What we have seen is an erosion of that kind of cultural content because we are no longer asking these new types of broadcasters to contribute, and because the system simply has not kept up.

Who is responsible for all that? I will be blunt: All of us are responsible for all of that, because we have not acted quickly enough to deal with Spotify, Apple Music and YouTube. When we legislated this most recently, which is three decades ago, those things did not even exist. In fact, the Internet was still in its infancy, probably just a plaything of the U.S. military at the time, because we are reaching back to around 1991. Although I prefer Spotify, most Canadians today get their music from YouTube Music. That is an incredible statement. It is not from the radio. It is not from vinyl or cassettes, but from one particular platform: YouTube Music.

Unless we directly regulate that type of platform and ensure that it is contributing to the continuity, creation and support of Canadian content, we could see great Canadian musicians or great Canadian musical acts simply go by the wayside. Do we want to have the next Tragically Hip, the next Arkells, the next Drake, the next Justin Bieber, etc.? I desperately want to see that. I want to see that for our country and I want to see that for the children I am raising, but we cannot see that unless we actually take an active step to support this industry.

What we have is Canadian broadcasters from the traditional mould, such as Bell and Rogers, playing by one set of rules, and we have streaming platforms playing by entirely another set. There needs to be one set of rules for all.

What would this bill do? We have heard a little about this during this debate. The bill would provide the CRTC with express powers to require broadcasting undertakings, including online undertakings, to make financial contributions to Canadian content and to its creators.

Over these last years, as the member of Parliament for Parkdale—High Park, I have heard basically a plea that this exact kind of measure be put into force. I have heard it from ACTRA. I have heard it from the Directors Guild of Canada. I have heard it from the Writers Guild of Canada. I have heard it from the Canadian Association of Broadcasters. Over and over again, they have said that unless we support their industry, in terms of where it is being viewed or seen now at that level of broadcasting and not just in its old modality, they are in jeopardy. All the Canadian content they create is in jeopardy.

Why is that important? Everyone in this chamber chuckled about The Beachcombers. Those touchstones are significant because they tell a Canadian narrative. That is good, right and proper, because it is important, as a nation-building exercise, for people to see themselves reflected in what they see and hear and also to learn about themselves, in terms of what they see and hear.

That is why I hope another aspect of this legislation gets touched on in this debate. I think it is important, because we are trying to also make sure a Broadcasting Act three decades later reflects the reality of Canada. The city I represent boasts that it is one of the most diverse, if not the most diverse, city on the planet. That is the city of Toronto. We would like to see the broadcasting offerings that are available, including online, reflecting that diversity and reflecting people of colour: racialized people, immigrants, Black Canadians, etc.

There is a specific provision in the legislation that actually references promoting indigenous language vitalization. That is something I also had the ability to work on in the 42nd Parliament. It is something I feel very strongly about. The way we do that and keep moving the yardsticks forward is by amending the broadcasting legislation.

In these last two and a half minutes, I want to deal with what this bill is not about. We heard a great deal about this in the last Parliament, and I am very keen to ensure we do not hear about it in this Parliament, particularly now. My opening comments were about Ukraine. We know that not just this country, but the planet, is seized with addressing misinformation and disinformation right now. To purport incorrectly or benignly, or to misconstrue what is in a piece of legislation versus what is not, is not helpful for the discussion about this legislation, nor is it helpful to the public discourse in this country, let alone on this planet. I mean that very seriously.

This bill has a specific carve-out, and the carve-out is clear. User-generated content, video games and news media will not be affected by the proposed changes. It is quite clear that what we are doing would ensure that social media allows people to share their thoughts online, and that is for the most part a very good thing. We agree it is vital for Canadians to be able to express their views, which is why the bill specifically states that the regulator cannot make regulations that infringe on freedom of expression on social media or online platforms. That is critical, because we are not talking about individually generated user content, unless that content is being commercialized, which is a point that was adequately addressed by the member for Kingston and the Islands. It is important that people understand this fact, and that this fact does not get misconstrued in the context of this debate or when this bill hopefully moves to committee.

Why is this important? It is critically important, in terms of taking outdated legislation and moving it into the modern age three decades hence. It is also important because it would allow us to ensure that Canadian stories and narratives are being told. It is important for ensuring there would be a playing field. The simple principle is that if something is benefiting from a system, which clearly the YouTubes and Spotifys of the world are, then it needs to contribute to that system.

Another participant in this debate mentioned that other jurisdictions have already taken the step of ensuring contributions from online streaming platforms. We would simply be making sure that Canada levels the playing field internationally and also vis-à-vis traditional broadcasters and online streaming broadcasters.

I hope that is a concept that all members and parties in the House can get behind.

[Philip Lawrence, Conservative, Northumberland—Peterborough South, ON]

Madam Speaker, I enjoyed working with the member on the justice committee.

We are both lawyers, and this is a very unique scheme in the way it has been designed. In fact, I will actually quote from Michael Geist, a respected professor: “The bottom line is that the potential scope for regulation is virtually limitless since any audio-visual service anywhere with Canadian subscribers is caught within the rules.” That means this would create this giant scope and then it would allow the government, in certain instances, to put exemptions.

Would it not have been much more intelligent, a much better way and the way that we normally draft things, to just cover the area we want to cover, as opposed to giving this giant scope to the government and then exempting what it chooses to exempt?

[Arif Virani, Liberal, Parkdale—High Park, ON]

Madam Speaker, I appreciate the member opposite's service on the justice committee and I look forward to working with him in this Parliament.

I think he makes an interesting point on the tactic taken with legislative drafting. However, one thing is clear in the context of the debate on this bill, and it was quite vociferous regarding Bill C-10 in the 43rd Parliament: People want a surety that user-generated content by an individual person posting something to a platform like YouTube will not be caught. That is why we put an express exemption to that very effect into this legislation.

This has been cast wide because the platform and the nature of the streaming services are wide. However, with an adequately tailored exemption, I think it is clear to Canadians that we are not here to limit freedom of expression unnecessarily. What we are trying to do is to actually empower freedom of expression by creating more of that expressive content and by empowering the creation of more Canadian content through this funding model.