Bill C-11, The Online Streaming Act has passed third reading in the House of Commons and the Senate and is expected to soon trigger some of the most transformative broadcasting regulatory hearings in a generation. Bill C-11 includes a host of amendments to the Broadcasting Act (the "Act") that, among other things, aim to bring Canada’s broadcasting regulatory framework into the digital age.
Much of Bill C-11 was anticipated by industry and policy watchers when it was first introduced in April 2022. Many of its provisions were also contained in predecessor legislation introduced in 2020 (Bill C-10) and can be traced back to recommendations set out in the Broadcasting and Telecommunications Legislative Review Panel’s Final Report from January 2020.
Regulation of Digital Broadcasting Services as “Online Undertakings”
Bill C-11 was drafted to provide the Canadian Radio-television and Telecommunications Commission (CRTC) with distinct new powers, which include the express authority to regulate online streaming services. Some of the key new powers applicable to online undertakings are described below:
- Inclusion of online broadcasting within the scope of the Act. The Bill establishes a new category of regulated entity called an "online undertaking", which is an undertaking that transmits “programs over the Internet for reception by the public…" Online undertakings can be regulated by the CRTC if they transmit or retransmit programs over the Internet to the public as long as they are “carried on in whole or in part” within Canada.
- Regulating online broadcasting. Among other things, the CRTC will be given the authority to:
- Require online undertakings to make financial expenditures to support the production of Canadian programming;
- Impose "conditions of service" on all broadcasting undertakings, including online undertakings, related to, among other things, the proportion of Canadian programs they distribute, as well as the "discoverability" of those programs and the manner in which they are presented for selection to the public; and
- Require, without terms or conditions, a person carrying on an online undertaking that transmits programming services of other broadcasting undertakings to carry programming services specified by the CRTC.
- New penalties for the CRTC.Bill C-11 also provides the CRTC with new enforcement and oversight tools, including an explicit authorization to levy Administrative Monetary Penalties (AMPs) in the case of non-compliance.
Significantly, Bill C-11 does not propose any form of direct regulation of the content of users of social media and does not propose to make social media services responsible or liable for content posted by their users.
It remains unclear whether the amendments to the Act will encourage the CRTC to consider relaxing or reducing the regulatory obligations that have historically been adopted for traditional broadcasting undertakings as part of its ongoing review of those regulatory frameworks.
House of Commons and Senate Parliamentary Committees Conduct Separate Reviews and Pass Amendments
In 2022, the Standing Committee on Canadian Heritage in the House of Commons (House Committee) and the Standing Committee on Transportation and Communications in the Senate (Senate Committee) each conducted a study of Bill C-11 and amended it during clause-by-clause review.
Both the House and Senate Committees debated the issue of user-generated content, with many witnesses raising concerns that user-generated content may be subject to regulation as a result of the Bill. Neither the House nor the Senate Committees passed amendments that explicitly dealt with this concern.
Similarly, the issue of discoverability was addressed and concerns were raised about the CRTC’s authority to impose conditions that may indirectly require online undertakings to adjust or manipulate their algorithms to achieve public policy objectives. Despite these concerns, no significant amendments related to the issue of algorithms were passed.
Both the House and Senate Committees did, however, amend Bill C-11 to enhance the diversity objectives in the Act, ensuring that the unique experiences of Black, Indigenous and other racialized Canadians, as well as Canadians with disabilities, are adequately represented in the Canadian broadcasting system.
Ultimately, neither the House nor the Senate Committee passed amendments that would fundamentally alter Bill C-11 and the CRTC’s impending task of developing regulatory frameworks that will impose conditions of service on online undertakings that engage in digital broadcasting in Canada.
Waiting for the CRTC’s Shoe to Drop
What remains unclear at this time is how the CRTC will use this new condition-making authority to impose obligations on online undertakings and, significantly, what role this will have in shaping the future regulatory environment for traditional Canadian broadcasting undertakings, which have had significant requirements imposed on them by the CRTC through licensing and regulation for decades. A truly transformative set of CRTC hearings is likely in the works.
Fasken’s Communications Law team will continue to monitor the progress of Bill C-11 and will issue further bulletins when the CRTC launches proceedings to implement the regulatory changes resulting from the amendments to the Broadcasting Act.