By: Shahab Ahanchin
Shahab Ahanchin, a third-year Osgoode Hall Law student, is passionate about consumer rights advocacy. Starting this summer in 2024, Shahab is thrilled to begin his articles at Osler, Hoskin, and Harcourt.
Overview
On April 27th, 2023, the Senate passed Bill C-11, making it Canadian law. What does this Bill do and how will it affect Canadians?
C-11 Bill, also called the Online Streaming Act (OSA), forms a framework to regulate digital streaming platforms like Netflix, Disney, and Spotify. The bill will bring the Canadian Radio-television and Telecommunications Commission (CRTC), the Canadian media regulator, to oversee these platforms (Pugh, 20223). Like the radio and television media in Canada, the streaming platforms will be required to promote Canadian content (Pugh, 2023). The regulation of these online broadcasters by the CRTC will need them to invest in creating and producing Canadian content. The production of more Canadian content will also increase its availability on foreign platforms and offer greater choice to Canadian content audiences. Before the C-11 was enacted, CRTC policies did not apply to online broadcasters, meaning they were not reinvesting in Canadian content. The Senate made 26 amendments to the Bill C-11 before passing it.
The Bill does not state the amount of content that will count as Canadian on foreign online platforms. However, because the CRTC will have the mandate to supervise the platforms, it will dictate what will be covered as Canadian content in such platforms. (Pugh) The C-11 bill will also require foreign platforms to make use of Canadians in the creative industry in production and programming (Pugh, 2023). In the previous law, (the Broadcasting Act from which year?) over-the-air broadcasters must have been licensed, as noted by the Government of Canada (2022). Such broadcasters include those that use radio frequencies to distribute audio and audio-visual content. However, online media broadcasters that deliver audio and audio-visual content over the internet can operate without being licensed (Government of Canada, 2022). With the C-11 law in place, the online media platforms will be given various regulations compared to the existing ones in the traditional radio and television broadcasters. C-11 will require online broadcasters to contribute to the production of Canadian content as radio and television do, according to Siddiqui (2023). Therefore, the C-11 bill seeks to bring both the over-the-air and internet streaming broadcasters on board under the regulation of CRTC to promote the production and transmission of Canadian content.
What is the issue?
The Canadian media regulator CRTC requires over-the-air broadcasters to operate with licenses. (Pugh, 2023) This gives the CRTC board the mandate to oversee and regulate the media to ensure Canadians receive world-class content. This is achieved by making Canadian content available on telecommunication platforms. However, the issue is that the CRTC does not extend its control policies to the Internet media as per previous regulatory rules (Government of Canada, 2022). The purpose of the C-11 Bill is to bring internet and online media platforms into regulation by CRTC. This will work to ensure that even the internet platforms produce and distribute Canadian content as part of their streaming. Further, CRTC will have the duty to define the amount of Canadian content found on online platforms (Pugh, 2023).
Including the streaming and internet platforms in the production of Canadian content will increase its consumption by a huge audience. Today, many use online streaming media for news, entertainment, and business purposes. Thus, allowing Canadian content to be found on foreign media platforms will increase its viewership and consumption. This is because this content will be exposed in foreign countries by making it accessible to a broad audience by searching on the streaming platforms. This will also promote Canadian talent and culture since the bill dictates that foreign online broadcasters should make use of Canadians in the production and programming industry (Pugh, 2023).
However, enacting the C-11 Bill poses some concerns for foreign broadcasters and online creators. According to Canadian Media Producers Association CEO Reynolds Mastin, the Bill imposes on Canadian broadcasters higher standards than foreign streamers. This will conflict with the government’s role in providing neutral ground in supporting Canadian creators and companies. This further retard the Canadian cultural industry by allowing the use of fewer Canadian creators in foreign companies (Pugh, 2023). Additionally, Canada’s trade obligations may prevent the government from making both the foreign streamers and the Canadian broadcasters follow the same rules. Canadian online creators are worried about the Bill applying to social media platforms. They worry their content will be aired to uninterested audiences, thereby lowering their success. As the creators depend on engagements on media like TikTok and YouTube, they are concerned that may translate to fewer audiences for their content. In turn, this will likely hinder their goals and achievements on their streaming channels.
State of the Law in Canada
Bill C-11 or OSA received Royal Assent on April 27, 2023, and became law. Its provisions will have various implications on the online streaming media platforms as they will amend the Broadcasting Act. The OSA will cover commercial content uploaded to the internet for public viewing. It will also require online transmissions and traditional broadcasters to pay revenue and promote Canadian content (Siddiqui, 2023). As the Bill directs, the streaming channels must also recommend Canadian content in official and local languages. Those who fail to follow CRTC and OSA guidelines will be penalized. The penalties will include a $10 million fine for a first offence and $15 million if the offence is committed a second time by corporations. (Siddiqui, 2023)
As part of the OSA, the areas of the Broadcasting Act that are new and updated include Clause 2, 4, 9, 10, and 25, among others. Clause 2 would add online undertakings as a distinct class of broadcasting undertaking subject to the Act. Online undertaking would be defined in the Act as an undertaking for the transmission or retransmission of programs over the Internet to the public by means of broadcasting receiving apparatus. Clause 2 specifies that users of social media services who upload programs for sharing with other users, and who are not affiliated with the service provider (“unaffiliated users”), would not be subject to broadcasting regulation in that respect. Clause 4 stipulates that the Act would not apply in respect of programs uploaded to an online undertaking that provides a social media service by an unaffiliated user of the service unless the programs are prescribed by regulation. Clause 9 eliminates online streaming from licensing. Clause 10 would replace the Commission’s power to impose conditions on a license with a power to make orders imposing conditions on the carrying on of broadcasting undertakings. This power would include conditions about the proportion of programs that must be Canadian. Clause 25 explains the licensing requirements. (Government of Canada, 2022)
Analysis of issues facing consumers
In Canada, the right and freedom of expression is contained in section 2(b) of the Canadian Charter of Rights and Freedoms that protects the provider and consumer of content. However, despite the section protecting the provider and consumer of content, the consumers face various issues.
Firstly, the regulation seeks to create an equal playing field for both online and traditional broadcasters. This is achieved by ensuring that traditional broadcasters remain a key source of information and programming for Canadian consumers (Government of Canada, 2022). This limits the consumer’s sources of information by depending on only one source, where they fail to access all the information they need. This could have been a different case if many sources were allowed since consumers have different tastes and preferences for other sources. Hence, this limits consumers’ preferences, as they cannot choose their preferred from various sources.
Additionally, having this one source limits the information available to consumers, as traditional sources may fail to cover all the information consumers need. This means the consumers have no alternative sources to compare what they get from traditional sources. Due to this problem, there is a possibility of Canadians consuming false information. CRTC has to set the percentage of required Canadian content to be streamed by internet platforms. Therefore, the platforms may offer insufficient information and content choices, limiting some content to make space for coverage of Canadian content required under C-11. This will arguably lead to smaller catalogues and choices, leaving them without other choices except consuming only the available content.
In addition to limited choices, consumers also have issues with increased subscription costs for online services. There are registration and licensing charges for these foreign media platforms. These are charges incurred through licensing or paying for content, as noted by Siddiqui (2023). The cost of the charges is passed down to consumers by providers, who have to pay more to cater to licensing and registration fees.
Regulating the media and information sources means there should be much focus on the news, which is a form of censorship. Censorship means that consumers cannot access the news and information they want. Instead, what they access is determined by the media regulatory body, and this interferes with freedom of expression and information accessibility.
In the age of digital media, the majority depends on social media platforms to access information. However, under the strict policies brought in by CRTC and the C-11 bill, some have chosen to shut down their services in Canada. This means that they are no longer accessible, and this has counted as a loss to consumers who depend on such platforms as their information sources.
Recommendations
There are various demands that consumers should issue to the government and policymakers to curb the issues facing them. Some of these include:
- Firstly, the government should allow online broadcasting as a source of information. This will allow consumers to make preferences by accessing information from various sources. It will also curb the issue of limited information; thus, consumers will access broader information they need as they have many sources. It will also address the issue of disinformation as consumers may compare what they get from various sources.
- Secondly, policymakers need to reduce their regulation policies. This will lower the registration and licensing charges that the online media platforms incur. It will also reduce the charges of the content they are charged by CRTC. This will allow the consumers to have various choices of content they can access from online services. The subscription charges that these online platforms pass down to the customers will also decrease and bring more audience to the platforms.
- Withdraw the limit of the Canadian content that the foreign online media platforms should cover. Foreign online media platforms cover limited information, leaving space to include the percentage quoted by the CRTC. Withdrawing this mandatory percentage will ensure a massive amount of information is covered by the platforms and solve the problem of the limited information that consumers face. This may also encourage the platforms to cover more Canadian content as they see it as a responsibility rather than a mandatory restriction that has compromised them.
Conclusion
Prior to C-11, under the Broadcasting Act, traditional radio and television media platforms used to operate under regulations and policies issued by CTRC. However, C-11 has amended the OSA to empower the CRTC in regulating online media platforms. It aims to promote Canadian content on all platforms while enhancing Canadian culture and promoting talents. The C-11 will require digital media companies to contribute towards funding the Canadian programming and production industry. It will be done by training Canadian content creators or donating money managed by the CRTC, Canada Media Fund. This gives both digital and traditional broadcasters equal playgrounds by creating favourable market trends. Despite C-11 helping to bring favourable regulated market conditions for Canadian content, consumers will face problems of limited content. This is due to promoting content with uncertain rules of what that content is or should be. Canadians are potentially denied the preference on accessing all sources of information or content, potentially resulting in disinformation due to a lack of comparison of information. The high cost of subscriptions to online services has been an issue. However, the government can solve such problems by reducing the regulatory conditions or consulting with digital media on reasonable solutions.
References
Government of Canada, D. of J. (2022, April 1). Department of Justice – Statement of Potential Charter Impacts. Www.justice.gc.ca. https://www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/c11_2.html
Pugh, J. (2023, March 3). A new streaming bill is close to becoming law in Canada. Here’s how it works. CBC. https://www.cbc.ca/news/entertainment/bill-c-11-explained-1.6759878
Siddiqui, F. (2023, May 16). Bill C-11: Sweeping changes to Canada’s Broadcasting Act passed into law | Canada | Global law firm | Norton Rose Fulbright. www.nortonrosefulbright.com. https://www.nortonrosefulbright.com/en-ca/knowledge/publications/3d23c80e/bill-c11-
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