Canadian Heritage Committee on May 19th, 2021

[The Chair, Liberal, Scott Simms]

Yes. I want to point out that, if you're in discussion with the department, I'm going to treat it similarly to how we deal with witnesses. You can have a back-and-forth with the department officials, and you don't need me to intervene. It just makes things a lot easier.

Go ahead, Ms. Harder. Let's do it that way.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

For greater clarification....

I'm sorry. Is it Mr. Owen or just Owen?

[Thomas Owen Ripley]

It's whichever you wish, Ms. Harder: Mr. Ripley or Owen.

[Rachael Thomas, Conservative, Lethbridge, AB]

Understood, thank you.

Mr. Ripley, my question is really around the word “program”, because what I'm hearing you say is that the content that an individual posts on their social media would then be considered a program. Am I understanding you correctly?

[Thomas Owen Ripley]

Thank you for the question, Ms. Harder.

Just to recap a little bit what has transpired, with the removal of proposed section 4.1, the social media services and the programming that is on those services get scoped in. What G-11.1 would do is restrict, essentially, the CRTC's ability to regulate those services to the three things that I think the committee is now well aware of.

With respect to the discoverability piece, the discoverability power does not apply to the programs. If you look at the proposed amendment G-11.1, you see the focus again is on the individual. That was intentional, to avoid the issue of actually extending the CRTC regulation to the programming. The idea was, again, to raise the profile of Canadian artists and creators without getting into this question of whether their programming needs a particular definition and without forcing the CRTC to exercise a judgment call, so to speak, on that programming. The goal is simply to showcase that Canadian talent, so to speak.

[Rachael Thomas, Conservative, Lethbridge, AB]

This subamendment, though, takes us back to a place, then, where that programming, the content, would be regulated, and the discoverability would be increased or decreased based on its level of Canadian content, as determined by a regulatory body.

[Thomas Owen Ripley]

Yes, Ms. Harder, that is correct. If the subamendment by Monsieur Champoux were to pass, the focus would be on the programming and raising the visibility or discoverability of programs, as opposed to the person who is the creator of the program.

[Rachael Thomas, Conservative, Lethbridge, AB]

Okay.

The body that would determine the level of Canadian content would be what?

[Thomas Owen Ripley]

The CRTC, as the regulator, would be the one to exercise this power, and it would have to determine what constitutes a Canadian program in the context of social media services.

[Rachael Thomas, Conservative, Lethbridge, AB]

Okay.

Mr. Ripley, if content is made more discoverable because it is given a greater ranking in terms of its Canadian content, is it possible, then, for that programming to be on an equal playing field with all other programming, or, by the fact that it's moved up in rank, does other content therefore have to be moved down?

How does discoverability work?

[Thomas Owen Ripley]

Thank you for the question.

“Discoverability” is a high-level term, and I would just caution about jumping to conclusions in terms of what that may look like at the end of the day. The expectation in terms of how the CRTC uses all of these powers is that it would come to its conclusions through consultations with the industry, with social media services themselves and with broadcasters, in relation to these powers.

Ms. Harder, as you suggest, yes, it could be about raising the visibility of Canadian programs—again, whatever the conclusion of the CRTC is with respect to what that term means in the context of social media on those services. It could also be about showcasing those programs on landing pages and those kinds of things. There are different kinds of tools that the CRTC could think about using, and again, those conclusions would be informed by consultation with the impacted communities.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you, Mr. Ripley.

This is my final question, I believe.

In this section, the term “social media” is used. Can you provide a definition for the term “social media”? Do we have a regulatory document or an authoritative document that would help us understand what is meant by the term “social media”?

[Thomas Owen Ripley]

You're right, Ms. Harder, in the sense that “social media” is not a defined term in the bill. Not every term is defined. Where a term isn't defined, it would be understood in relation to its ordinary meaning. In this instance, it was intentional to leave the term undefined, to be understood in terms of its ordinary meaning, so that the framework can continue to evolve over time.

My understanding of what it would be is an Internet-based service that allows individuals to share content with one another in a network. That's roughly how I would define social media off the cuff.

[Rachael Thomas, Conservative, Lethbridge, AB]

Mr. Ripley, you're using the term “ordinary meaning”, but I'm wondering about the fact that, ultimately, at the end of the day, this legislation will have to be enforced. Where would the enforcer go to find a definition for “social media services”?

[Thomas Owen Ripley]

You are right, in the sense that when the CRTC moves into implementation of this, the CRTC will have to articulate who precisely is caught and subject to any potential obligations. In doing that work, the CRTC would first, like the committee, look to whether there's a definition in this act, and there isn't.

You're right that it could then look to other legal instruments, in terms of other legislation or regulations elsewhere that have defined that. Again, I don't know the answer to that question off the top of my head. Failing that, they would craft their own definition, presumably based on the ordinary meaning of that term.

[Rachael Thomas, Conservative, Lethbridge, AB]

Okay.

Mr. Ripley, thank you so much for your time.

[The Chair, Liberal, Scott Simms]

Mr. Rayes.

[Alain Rayes, Conservative, Richmond—Arthabaska, QC]

Thank you, Mr. Chair.

Mr. Ripley, we are bombarding you with questions, but I think they are quite relevant.

At first sight, when Mr. Champoux proposed the first part of his subamendment, its aim was to replace “Canadian creators of programs” with “Canadian programs”, and I saw this as a simple superficial amendment. However, I have listened to your comments, especially those in response to Ms. Harder's questions. The further we get, the more she is showing her knowledge on the topic, and the more I am finding that the amendment is not just a superficial one. It is rather an important amendment. I am happy Mr. Champoux agreed to divide his subamendment in two, so that we can vote.

I would like you to clarify something for me.

At first, when Bill C-10 was introduced, the objective was for the activities of digital broadcasters, such as Netflix, Disney+ and Spotify, to be regulated in a fair manner compared with the activities of our so–called traditional broadcasters, such as TVA, CBC, CTV and Global. The basis of the bill is very technical; we can see that in all the proposed amendments, the scope of this issue and the reactions to it around the country.

To ensure that I understand properly, I would like you to explain something to me, as this will impact my response to this subamendment. As you pointed out, everything we are trying to do is related to the initially proposed section 4.1. The government is trying to integrate elements to compensate for the shortcomings stemming from this section's deletion. The rift occurred when social media were brought into the discussion. In the beginning, it was a matter of digital broadcasters like Netflix, which is not a social network such as Facebook or TikTok. Now, YouTube, TikTok and all social networks have been integrated as potential broadcasters.

As you pointed out so well, the bill provides no definition of social media. You say that the CRTC will define what constitutes a social medium and what constitutes a Canadian program. I think we all agree on what a Canadian program is when it comes to traditional broadcasters. Those rules have been in place for a long time. Now, the Internet has joined the conversation. For me, Netflix is on the Internet. However, a social network is another type of platform. We always talk about the same social networks we, the old generation, are familiar with; I will put all of us into the old generation category. My children, who are 19, 23 and 25 years old, use other social networks that I dare not even mention, as I may get the name wrong. The youth are using them by the millions around the world.

I am honestly a bit shaken today, and I would like you to clarify this for me. Without a definition, we are all relying on the CRTC. Unless I am mistaken, the corporation has nine months following the passing of Bill C-10 to set out clear rules. Is that right? Do I understand the situation correctly or am I completely off course? If so, tell me, and I will accept it with humility.

[The Chair, Liberal, Scott Simms]

Mr. Ripley, go ahead.

[Thomas Owen Ripley]

Thank you, Mr. Chair.

Thank you for the question, Mr. Rayes.

The starting point is the definition of an online undertaking, which is an “undertaking for the transmission or retransmission of programs over the Internet for reception by the public by means of broadcasting receiving apparatus”.

As you can see, the concept of programs is part of the definition of an online undertaking. Here is how the act defines a program: “sounds or visual images, or a combination of sounds and visual images, that are intended to inform, enlighten or entertain, but does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text”.

The starting point is that certain social media are included in the definition of an online undertaking. So they are subject to the act, barring an exclusion. As you know, there are two relevant exclusions—proposed subsection 2(2.1), which indicates that an individual who is using social media is not a broadcaster under the act, as well as the initially proposed section 4.1, which contained an exclusion for social media under certain circumstances.

When we testified for the first time to present the bill, we explained that the social media business model was complicated. Certain social media, like YouTube, are already included in one part of the bill. If they behave like a broadcaster—in other words, if the social media undertakings themselves are controlling content—they are subject to the act.

I repeat that the change proposed here is to replace what was initially planned in proposed section 4.1—which was deleted—with the limited powers described in the amendment the committee is now discussing.

The starting point is that social media are included in the definition of an online undertaking.

[Alain Rayes, Conservative, Richmond—Arthabaska, QC]

Mr. Chair, can I have a few seconds to ask a very simple supplementary question?

[The Chair, Liberal, Scott Simms]

Yes, go ahead.

[Alain Rayes, Conservative, Richmond—Arthabaska, QC]

Thank you, Mr. Chair.

Mr. Ripley, would it have not been more simple or wiser for the committee to define, in the bill, what a social medium is, instead of waiting for the CRTC to define it, which could take nine months? We have to think about all the consequences this could have, especially given the debate we are currently having on freedom of expression, which I think is very legitimate. This affects both the individuals uploading content and the content itself. Whether we like it or not, experts, Canadians and even some members of the committee still have a number of questions about this. I am actually one of them.

If we could come up with a definition, instead of leaving it up to the CRTC, I feel that we would move forward in a constructive manner.

I don't know whether you are allowed to give your opinion on this, but I put the question to you humbly.

[Thomas Owen Ripley]

Thank you for the question, Mr. Rayes.

I will not pass judgment on whether it is wise or not to do what you are proposing, because that is the committee's decision.

However, I can say that every term is definitely not defined in a bill or an act. A number of terms are used. Often, a definition will be provided for a term if it is very technical, if it is not part of common language and if people don't understand it very well.

The term social media is commonly used, and dictionaries provide a fairly specific definition for it. That is why we did not deem it necessary to include a technical definition of social media.

[The Chair, Liberal, Scott Simms]

Thank you.

Ms. Dabrusin.