An Act to amend the Broadcasting Act (43rd Canadian Parliament, 2nd Session)

An Act to amend the Broadcasting Act (Bill C-10) is a proposed Canadian federal legislation, introduced on November 3, 2020 by Minister of Canadian Heritage Steven Guilbeault during the second session of the 43rd Canadian Parliament. The bill seeks to amend the Broadcasting Act to account for the increased prominence of internet video and digital media, by adding undertakings that conduct "broadcasting" over the internet to the regulatory scope of the Canadian Radio-television and Telecommunications Commission (CRTC). The bill was passed by the House of Commons on June 22, 2021, and awaits Senate approval.

The bill will also update Canada's broadcasting policy to prioritize the "needs and interests" of Canadians, and the inclusion and involvement of Canadians of diverse backgrounds in broadcast programming. It removes the Act's requirement that all broadcasters be fully owned by Canadians, removes the seven-year term limit for CRTC-issued broadcast licenses (a regulatory process which will not apply to internet broadcasters), and adds a mechanism of imposing "conditions" on broadcasters (including radio, television, and online undertakings) without them being bound to a license term. The bill also introduces monetary fines for violating orders and regulations issued by the CRTC.

Supporters of Bill C-10 state that it would allow the CRTC to compel foreign streaming services to follow similar regulatory obligations to conventional radio and television broadcasters, including mandating that they make contributions to the Canada Media Fund to support the production of Canadian content (which was projected by government officials to result in at least $830 million in additional funding by 2023), and improve the discoverability of Canadian content on their platforms.

Bill C-10 has faced criticism for granting a large amount of power to the CRTC, who are unelected regulators and receive very little guidance from Parliament or the government. Its unclear applicability to user-generated content on social media services has also faced concerns that it infringes freedom of expression. Guilbeault has argued that the bill is meant to only apply to "professional" media and not individual users, but the Broadcasting Act would still be applied to the platform itself.

History[]

On January 19, 2020, the Broadcasting and Telecommunications Legislative Review Panel issued a report to Minister of Heritage Steven Guilbeault and Minister of Innovation, Science and Industry Navdeep Bains, calling for reforms of Canada's broadcasting system to account for digital media. Among other reforms, the panel urgently recommended that any company "with significant Canadian revenues" that distributes or curates audio, audiovisual, or news content be required to register with and be regulated by the CRTC (which the review proposed be renamed to the "Canadian Communications Commission" to signify its wider scope), and become obligated to make expenditures towards the creation of Canadian content (just as licensed radio and television broadcasters must do under the existing Broadcasting Act and CRTC policy).^[1] The CRTC does not currently regulate internet content.^[2]

The panel's urgent recommendations were incorporated into Bill C-10.^[3] The bill is the first in a series of three bills intended to address online platforms and their influence in Canada, alongside a proposed "online harms" bill that will seek to address online hate speech.^[4] On February 16, 2021, the bill completed its second reading and was referred to the Standing Committee on Canadian Heritage (CHPC).^[5]

The bill completed its third reading on June 22, 2021, and was passed by the House of Commons 196–112.^[6][7]

Contents[]

The bill consists primarily of amendments to the Broadcasting Act, along with consequential and related amendments to existing legislation such as Canada’s Anti-Spam Legislation, the Cannabis Act, the Copyright Act, and the Canadian Radio-television and Telecommunications Commission Act.^[8] The exact regulatory policies would be determined by the CRTC based on its interpretation of the amended Broadcasting Act after royal assent.^[9]

The broadcasting policy of Canada as defined by the Broadcasting Act is modified, stating generally that the broadcasting system must serve the needs and interests of Canadians (replacing a clause requiring all broadcasters to be owned and controlled by Canadians), make use of Canadian resources "to the extent that is appropriate for the nature of the undertaking", and provide opportunities for Canadians of all backgrounds via "programming and employment opportunities" (including "Indigenous people, racialized communities and people of diverse ethnocultural backgrounds", among others).^[8]

The CRTC is given authorization to impose conditions on broadcasters to uphold the broadcasting policy of Canada, including the production, presentation, and discoverability of Canadian content, accessibility of content to individuals with disabilities, and other regulatory matters. These would be similar to the current conditions of licence used to regulate broadcasters, but would not be bound to licence terms.^[8] The licensing framework for broadcasters is modified to remove the seven-year limit for fixed terms, and authorize the CRTC to issue indefinite licenses.^[8] The CRTC will be prohibited from imposing any obligation on the industry that "does not contribute in a material way to implementing the broadcasting policy for Canada."^[8]

The Act is amended to include a definition of online undertakings, which are any internet service that broadcasts programs over the internet (the Act currently defines programs as "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").^[10] The definition of broadcast undertaking and broadcasting under the Act would also be amended to include online transmission.^[8] Unlike conventional broadcast undertakings, online undertakings are exempt from the requirement that all broadcasters must be licensed. However, the bill would still allow the CRTC to require that all broadcasters (including online undertakings) be registered with the Commission,^[11] and to impose regulatory conditions and obligations on them, such as making contributions to the Canada Media Fund, giving prominence to Canadian content on their platforms, and being compelled to provide information to the Commission on such matters when requested.^[11][8][12]

Section 2(1) of the bill states that individual users who upload programs to a social media service, and are not "the provider of the service or the provider's affiliate, or the agent or mandatary of either of them", are not considered to be "carry[ing] on a broadcasting undertaking" for the purposes of the Act.^[13][14]

Bill C-10 introduces monetary penalties for violating any regulation or order issued by the CRTC, with fines of up to C$25,000 for the first offense by an individual, and up to $10 million for the first offense by a corporation.^[8][11]

Reception[]

Bill C-10 has faced mixed reception. Supporters of the bill argue that it creates a level playing field between legacy and digital broadcast undertakings, and would allow the CRTC to compel foreign streaming services such as Netflix and YouTube to make expenditures towards the production of Canadian content in the same way as conventional broadcasters, and be required to prepare reports to the CRTC on the discoverability of Canadian content on their platforms.^{[15][9][13][16]} Federal officials estimated that mandating participation in the Canada Media Fund by major streaming services could generate up to $830 million in new funding per-year by 2023.^[17]

Critics of the proposed legislation have argued that it gives broad power to the CRTC, who are unelected regulators and receive very little guidance from Parliament or the government, to enforce regulations on digital media platforms.^[18] University of Ottawa professor Michael Geist criticized the bill for removing a number of long-standing policies from the Act that were intended to protect Canada's broadcasting system, including the requirement that all broadcasters be Canadian-owned and controlled, and the expectation that broadcasters make "maximum use, and in no case less than predominant use" of Canadian talent in programming.^[19][20][11]

Applicability to social media[]

The bill previously contained a clause, Section 4(1), which excluded programs that are uploaded by users of social media platforms, who are not an owner, operator, or affiliate of the platform, as well as any online undertakings that consist only of such content, from the scope of the Broadcasting Act.^[14][9] It was removed from the bill in April 2021, due to concerns that it could be used as a loophole by video sharing platforms to declare music content as being user-generated because it was uploaded to a musician's own channel, and thus not provide reports on such content to the CRTC.^[21][13] Concerns were raised by critics that removing the clause would place a burden on the operators of social media platforms to regulate user content for compliance with CRTC regulations.^[12][9][22]

Former CRTC commissioner Peter Menzies stated that "granting a government agency authority over legal user generated content — particularly when backed up by the government’s musings about taking down websites — doesn’t just infringe on free expression, it constitutes a full-blown assault upon it and, through it, the foundations of democracy."^[9] Guilbeault stated that Bill C-10 was intended to cover "professional series, films, and music", and argued that the bill included "safeguards" to protect individual users.^[13] Liberal MP and Guilbeault's secretary Julie Dabrusin argued that "we do not want to regulate your cat videos."^[13]

Conservative Party leader Erin O'Toole commented that Justin Trudeau's government was the most "anti-internet government in Canadian history". Conservative Party heritage critic Alain Rayes stated that "Conservatives support creating a level playing field between large, foreign streaming services and Canadian broadcasters, but not at the cost of Canadians’ fundamental rights and freedoms."^[23] Conservative MP Michael Barrett accused Bill C-10 of "silencing Canadians online", and argued that Trudeau was attempting to make "every aspect of Canadian life" conform to "his Liberal vision of Canadian society". In response, Trudeau argued that free speech is "not negotiable by our government", and commented that "the tinfoil hats on the other side of the aisle are really quite spectacular."^[24]

On May 3, Guilbeault stated that the bill would be amended to reinstate a more explicit exclusion of user-generated content from the bill, stating that "[Bill C-10] is not about what Canadians do online. It is about what the web giants do and don't do, which is to support Canadian stories and music."^[12][13] The amendment adds a statement establishing that the CRTC's powers over social media platforms would be limited to imposing conditions on "the discoverability of Canadian creators"; Geist criticized the amendment for merely confirming the CRTC's regulatory powers and "doubling down on [the government's] Internet regulation plans."^[25]

On May 9 in an interview with CTV's political talk show Question Period, Guilbeault stated that the Broadcasting Act as amended by Bill C-10 "should apply to people who are broadcasters, or act like broadcasters", and suggested that social media users that have a large audience or derive a large amount of revenue (insofar that they have a "material impact on the Canadian economy") would also be classified as broadcasters.^[26]

Concerns were raised over the comments, as they had contradicted Guilbeault's previous assurance that the Act would not apply to individual users of social networks, and it was unclear what the threshold would be under this criteria.^[22] Guilbeault later admitted that he had used "unclear language" during the Question Period interview, and argued that individual persons would not be considered broadcasters under the Act, and that social media platforms would be regulated when they themselves "produce content for Canadians to watch or listen to — for broadcast." In regards to social media platforms likely being required to improve discoverability of Canadian content, he explained that "it does not mean the CRTC would dictate, limit or prohibit a feed or what you can post, watch or listen to on social media. As the Internet is infinite, discoverability won’t limit the content you see on a feed – it will just add more."^[22]

On May 9, Kate Taylor of The Globe and Mail published an opinion piece in support of Bill C-10, stating that concerns over the bill were being "overblown" by the Conservatives, that the Broadcasting Act has always required that it be applied by the CRTC "in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence", and that all Canadian creators "deserve a broadcasting law that offers basic fairness".^[21]

The Conservative Party and the NDP supported a motion to reassess the bill's compliance with the Charter of Rights and Freedoms ("charter statement").^[13] On May 10, 2021, members of Parliament on the Heritage Committee voted in favour of a motion requesting a new charter statement, and that Guilbeault and Minister of Justice and Attorney General David Lametti appear before the committee and an expert panel to discuss the implications of the amendments to Bill C-10.^[27] That night, Guilbeault shared a Medium post on Twitter which conspired that opposition to Bill C-10 was the product of "public opinion being manipulated at scale through a deliberate campaign of misinformation by commercial interests that would prefer to avoid the same regulatory oversight applied to broadcast media."^[28]

On May 13, the Department of Justice issued the new charter statement, finding that the current draft of Bill C-10 was compatible with the Charter, citing that the CRTC would not be able to impose the regulations on individual users, and would have to interpret the Act "in a manner consistent with freedom of expression".^[29] Geist felt that the charter statement did not address the main concern of allowing the CRTC to regulate the presentation of Canadian content on internet platforms, stating that "suddenly now we're going to ask the CRTC to decide which cat video constitutes Canadian content, and which one doesn't."^[30][31]

On May 19, the Heritage Committee voted in favour of an amendment by the Bloc Qu��bécois that ensures that the CRTC would only be allowed to enforce conditions on the promotion of Canadian content by social media platforms that are consistent with the Charter right to freedom of expression.^[32]

On June 1, a proposed amendment by the Conservatives to reinstate the user-generated content exception was voted down by the House.^[33] The Liberals, with support of the Bloc, subsequently passed a motion of time allocation in order to limit debate of the bill (the first such motion in 20 years, and only the third overall) to five hours, after which the Heritage Committee must conclude its clause-by-clause review. Guilbeault cited "systematic obstruction" of the bill by Conservatives.^[34][35] As a result of the effective "gag order", a number of amendments were voted on with no discussion or publication of the amendments permitted.^[36] On June 14, another motion was introduced to only allow one hour of debate for the amended bill when it returned to the House, and only 75 minutes for the third reading.^[37]

On June 15, the aforementioned amendments were voided by Speaker Anthony Rota, for having been passed by the Heritage Committee after the five-hour period expired.^[38][39] During a late-night session on June 21, most of the voided amendments were reintroduced, and the bill was passed during its third reading.^[6]

References[]