Online streaming Bill C-11: What you need to know
The Liberals have spent years trying to pass online streaming legislation and now the current iteration, known as Bill C-11, is closer than ever to passing.
However, standing between the Liberals and getting this contentious commitment to the finish line is a potential legislative showdown, after senators made 26 amendments to 12 clauses of the 56-page bill following the longest study ever conducted at a Senate committee, according to the Senate clerk.
The legislation needs to pass the third reading stage in the upper chamber, but then the bill is destined to be sent back to the House of Commons due to the changes made. From there, the minister responsible for Bill C-11—Canadian Heritage Minister Pablo Rodriguez—will have to decide what amendments he’s ready to live with, which could spark some parliamentary back and forth between the chambers before a final version is settled on.
“We’ll review the final version with all proposed amendments. At the end of the day, this bill is about making sure streaming platforms that benefit from broadcasting to Canadians contribute to our culture,” said the minister’s press secretary Laura Scaffidi in an email to CTVNews.ca.
Throughout its efforts to update Canada’s Broadcasting Act regime, the government has remained adamant that Bill C-11 is focused on ensuring social media and streaming giants are subjected to Canadian content requirements and regulations comparable to traditional broadcasters, and as a result promote and pay their fair share towards Canadian creators.
This insistence has come in the face of alarms being sounded by certain industry voices, the Conservative party, and platforms such as YouTube, Google and Meta, which have suggested that the Liberal proposal could have knock-on effects for user-generated content and content creators, as well as free-speech implications. In their efforts to lobby against this bill, some of the tech giants have gone to great lengths.
For example, this fall, YouTube ran a campaign warning users who earn money making videos about how the legislation could impact their livelihoods.
Critics have also made the charge that, due to the “discoverability” provisions that would empower the Canadian Radio-television and Telecommunications Commission (CRTC) to compel platforms to promote Canadian content, it’s a bill aimed at censoring what gets seen online.
Complicating the back and forth between those supportive of Bill C-11, who call the concerns being raised as oversimplified and disingenuous, and those who are against what they consider government-led censorship, is that a lot is being left to the CRTC as the regulatory body to determine once the legislation passes, how it plans to implement it. The telecom regulator’s new chairperson recently told the National Post that the CRTC plans to hold public consultations on this once the bill becomes law.
While it remains to be seen how this will all play out—from how many of the Senate amendments will stick, to what the final impact of the legislation will be once the regulatory framework is in place—here’s what you need to know about how Bill C-11 got to this stage, and what may be ahead.
WHAT IS BILL C-11 AKA THE ‘ONLINE STREAMING ACT’?
Bill C-11, titled the “Online Streaming Act,” is a 56-page piece of legislation that spells out a series of changes to the Broadcasting Act. It was tabled in the House of Commons on Feb. 2, 2022.
The longstanding Broadcasting Act outlines traditional Canadian broadcasting policy, the regulatory role of the CRTC, and has implications for domestic cultural industries. Bill C-11 proposes the first substantive amendments to the Act, since 1991, to take into consideration digital media.
Through the government’s proposed changes, the Liberals are aiming to bring increasingly popular and profitable streaming giants such as Netflix, Crave, Spotify and Amazon Prime Video under regulation by the CRTC, in a similar way to broadcasters on television and radio. These changes to the Broadcasting Act would result in online platforms having to spend millions of dollars investing in Canadian content and creators.
Bill C-11 proposes to create a new category of broadcast known as “online undertakings,” spelling out in the Broadcasting Act certain requirements for platforms that publish programs online, including social media companies. The legislation would give the CRTC greater powers, including the ability to impose financial penalties for entities who violate parts of the Act.
Through this legislation, the Liberals are also seeking to update the Canadian broadcasting system to take into consideration diversity in their programming, accessibility needs, and reflections of Indigenous culture.
BILL C-11 IS FEDS’ SECOND ATTEMPT
If the proposals in this legislation sound familiar, that’s because this isn’t the first time the federal government has tried to pass them, nor is it the first time the proposal has become embroiled in controversy.
During the last Parliament, the Liberals tried to pass these Broadcasting Act changes through in what at the time was known as Bill C-10. First tabled by Rodriguez’s predecessor in November 2020 then-Canadian heritage minister Steven Guilbeault, the original version of this bill faced a similarly rocky road in Parliament.
The bill may have first come on your radar in 2021, once it reached the House of Commons committee study stage, when concerns were raised that an attempted amendment to the legislation by the Liberals would result in lacking user-generated content protections.
Without rehashing the whole contentious chapter, in short the Liberals tried to amend the bill to wipe out a section that upheld an exclusion within the Broadcasting Act for individual users of social media platforms.
If this had come to fruition, the concern was that individual users could be viewed as broadcasters under the act, and the cat videos or other everyday content could come under regulation by the CRTC, even though it’s not been an area they’ve ventured near to-date.
This generated considerable backlash, set in motion a series of efforts from Guilbeault to clarify what the bill would, and wouldn’t do. Some of his remarks, including to CTV’s Question Period, prompted more confusion and reuttered backtracking.
The Justice Department weighed in to say that the rights of social media users would be upheld, the Conservatives pushed to talk out the clock and reinstate user exemptions, and the House of Commons Speaker slapped down a Liberal-led attempt to rush through a host of changes to the bill.
Ultimately, the first version of this bill passed the House in June 2021, but given all of the controversy swirling around the legislation, the Senate refused to fast-track it with the few weeks they had left before the summer recess, citing a desire to do their own deep dive on their own timeline.
Left in limbo as parliamentarians left Ottawa, the legislation then died on the order paper that summer when Trudeau called the 2021 federal election.
When the Liberals moved to reintroduce the legislation after the 2021 campaign—during which they pledged to revive the proposal within 100 days— it was the eleventh bill to be tabled by the government, which is why it went from being called Bill C-10, to Bill C-11.
WHAT HAS HAPPENED SINCE RE-INTRODUCTION?
Since this legislation was revived last February, Bill C-11 has made it to the final stage in the Senate, after robust studies in both chambers.
During the House of Commons Canadian Heritage Committee study of the bill last spring—during which MPs heard from 80 witnesses including experts, stakeholders and broadcast industry representatives— the Liberals caused some acrimony when they sped through more than 100 amendments seeking to clarify the bill’s aims, and then used procedural mechanisms to curtail the last leg of debate.
Despite this drama, Bill C-11 then passed in the House in June with the support of both the Bloc Quebecois and the New Democrats.
Then, the Senate started in on its methodical examination of the legislation. The bulk of this work has been led by the Senate Transport and Communications Committee, which started scrutinizing the bill in broad strokes in June, and then in detail in October when the bill formally passed second reading in the Senate.
The committee, chaired by Conservative Sen. Leo Housakos, stated early on, that its work would be “particularly important” given the complexity of the bill.
Ahead of entering into what became a marathon clause-by-clause, the Senate committee heard from 138 witnesses, including music industry representatives, current and former CRTC executives, academics, content creators, and minister Rodriguez. In all, more than 67 hours were spent on this study.
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“Forcing or attempting to force YouTube, TikTok or other platforms to prioritize Canadian content may be well intentioned, but it is naïve… Forcing people to view content because it’s Canadian does not encourage people to like that content. It is more likely, I feel, to breed negative perceptions of Canadian content from the user,” testified digital creator Stewart Reynolds, perhaps better known online as Brittlestar.
“If they know a video is being shown to them primarily because it’s Canadian and not because it is what the user is searching for, it can make the video seem inferior regardless of whether it is or not. It’s like going to a restaurant with corn content or corncon rules. Even though you order the Alberta sirloin, you receive a bowl of corn. Good, perhaps, but not what you wanted,” Reynolds told the Senate committee.
Ultimately 26 out of a proposed 73 amendments were passed, including an effort to clarify the CRTC’s authority as it pertains to user-generated content to exclude social media users. Senators also made a change to Bill C-11 recommending age-verification methods be introduced to prevent children from accessing online content “devoted to depicting, for a sexual purpose, explicit sexual activity.”
In presenting his committee’s work to the Senate, Housakos said that while he is confident that the amendments have improved Bill C-11, “it should be noted that there remained many concerns.”
STILL FIGHTS AHEAD FOR BILL C-11?
After all of this, two potential fights are still ahead for the Liberals when it comes to Bill C-11. The first will be navigating any back-and-forth between the House and Senate over amendments.
When Parliament resumes next week, Senators will pick back up on third-reading debate on Bill C-11, before it comes to a vote.
Presuming the amended version passes, the rules state that if the Senate makes changes to a government bill, it has to send a message to the House notifying them of the changes made. Then, if the House doesn’t agree with the changes it would adopt a motion outlining what MPs’ sticking points are and send that back to the Senate.
At that point, the Senate can either accept that not all of its work will hold, or dig in and send a message back to the House insisting that the entirety of their amendments stand. It’s often that at a certain point the Senate will accept the will of the elected House, but given the heightened sensitivity and concern around this legislation, the back and forth between the House and Senate could, like Bill C-11’s journey through Parliament, could be protracted.
Another potential effort to resolve a standoff over amendments would be to call a joint conference between the House and Senate allowing MPs and senators try to hash out a solution both sides can live with.
Once Parliament settles on a pass-able version of the bill, it would receive royal assent and then become law. Then, the regulatory work begins.
This brings into play the second potential roadblock still ahead to modernizing the Broadcasting Act. The CRTC’s work on implementation will be taking place in the shadow of warnings from the Americans that as the proposal stands, trade action is likely. Stakeholders in the U.S. have said that Bill C-11 risks adversely impacting cross-border suppliers of online content, and therefore potentially infringing on provisions under the Canada-United States-Mexico Agreement (CUSMA).
“Although the U.S.-Mexico-Canada Agreement (USMCA) recognizes Canada’s interest in promoting Canadian content through an exception for ‘cultural industries,’ this exception includes guardrails to ensure that its exercise will not adversely affect U.S. trade interests. Given the near-certainty of such an effect, C-11 would, accordingly, be actionable under Canada’s trade obligations in the U.S.-Mexico-Canada Agreement (USMCA),” reads a recently-issued white paper from the Washington-based Computer and Communications Industry Association.
“If Canada proceeds with C-11 as currently drafted, it will be incumbent on the United States to assess the scope of likely violations of USMCA rules, the degree to which its trade interests are harmed, and consider what steps are appropriate in response.”
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