Bill C-11 (The Online Streaming Act) – Another Step Closer to Major Overhaul of Canada’s Broadcasting ActThursday, June 23, 2022
Bill C-11, the Online Streaming Act (the “Bill”), which proposes the first major update to the Broadcasting Act (the “Act”) in 31 years, passed its third reading in the House of Commons on June 21, 2022.
The Bill would, among other amendments, bring online streaming platforms such as Netflix, Crave, Amazon Prime, Spotify, and Disney+ under the purview of Canadian broadcasting laws and regulations. The Bill achieves this by including these platforms and other social media sites and apps under the defined term “online undertakings”, which term includes a seemingly broad array of online content providers. Online undertakings and all other Canadian broadcasting organizations would be under the auspices of the Canadian Radio and Television Commission (the “CRTC”), the regulatory body designated to implement and enforce Canadian broadcasting legislation.
The Bill proposes to provide the CRTC with the power to make orders in its sole discretion imposing conditions on “online undertakings” with the aim of ensuring they meet certain objectives, such as support for the creation of Canadian content, increasing visibility of Indigenous Peoples and other marginalized groups in the spirit of diversity, equity and inclusion, and equitable treatment of similarly situated broadcasting undertakings in Canada. The Bill does not specify any requirements it expects the CRTC to impose; rather, it delegates this authority to the CRTC in its sole discretion.
The federal government summary of the Bill outlines five main objectives of for the Bill, which was re-tabled in its current form in February 2022 after failing to pass as Bill C-10 in 2021. These objectives are as follows:
- Inclusion of Online Broadcasting: By creating the defined term “online undertakings”, all online broadcasting will fall under the scope of the proposed amended Act.
- Updates to Broadcasting and Regulatory Policy: The proposed amendments to the Act include increased efforts to serve the needs of our diverse Canadian society. The aim is for the CRTC to implement this broadcasting policy through its regulatory framework.
- Renewed Approach to Regulation: By wholly delegating authority to the CRTC, the Bill would provide the CRTC with more power and flexibility to regulate all types of broadcasting, including online broadcasting.
- Modernized Oversight and Enforcement: The CRTC will have the power to enforce compliance with monetary penalties for violations of certain provisions of the Act. The CRTC will also be able to demand information it considers necessary from online undertakings and can require registration of online undertakings. In addition, the CRTC will be permitted to audit the books and records of any person carrying on a broadcasting undertaking.
- New Approach to Social Media: The Bill is aimed to include social media as a form of broadcasting; however, this purportedly does not include social media users who are not producing revenue-generating or professional content.
The Bill in its current form has its fair share of both proponents and critics. Supporters are welcoming the Bill as a long overdue modernization of Canada’s broadcasting laws, which includes, among other things, amending the Act to capture online streaming platforms under CRTC regulation and the implementation of new protections to promote Canadian content (for example, through “discoverability” algorithms, which will attempt to make it easier for Canadians to access Canadian content on the various internet platforms). In general, the Bill would subject online streaming platforms to the same requirements that traditional broadcasters face, such as Canadian content requirements and investment in domestic content.
Critics, however, are expressing concern that certain wording in the Bill, as currently drafted, is overly broad and ambiguous such that user-generated content – content which is uploaded by individual creators onto social media websites, for example – may also be subject to CRTC regulation. Critics are concerned this wording would essentially subject regular Canadians’ social media use to government regulation and ultimately, censorship. Critics also argue that the Canadian content rules are flawed and may not actually achieve their intended policy goals, claiming that there are often instances where productions telling authentically “Canadian stories” do not qualify as Canadian content under the current and proposed regimes, while other productions with perhaps little connection to Canada may otherwise satisfy Canadian content requirements.
Having passed its third reading in the House of Commons, the Bill is now with the Senate. As of June 23, 2022, the Senate already completed its first reading and commenced its second reading debate on the Bill. It is being reported that Senate leaders have agreed to hold a final vote on the Bill by November 18, 2022.
We will continue to track the hotly debated Bill as it progresses through the legislative process. If passed, the Bill will drastically overhaul and modernize the Canadian broadcasting and online media landscape.
If you have any questions with respect to the matters discussed above, please contact Jeff Bookman at firstname.lastname@example.org, Liza Quail at email@example.com or any other member of our Entertainment, Media, (e)Sports & Gaming practice group.
This update is intended as a summary only and should not be regarded or relied upon as advice to any specific client or regarding any specific situation.
If you would like further information regarding the issues discussed in this update or if you wish to discuss any aspect of this commentary, please feel free to contact us.