Federal streaming bill gives 'free rein' to CRTC

The federal Bill C-11, regarding CRTC regulation of content on streaming services like Netflix and Disney+, gives the CRTC too much power and should be amended, says a recent viewpoint presented by the independent think tank the Montreal Economic Institute.

“Bill C-11’s flaws would give the CRTC a great deal of latitude to indirectly control content generated by individual users,” the statement says. “It has the potential to push streaming platforms and social media toward a highly regulated environment.”

The MEI’s statement points out that last Nov. 22, “the federal government introduced Bill C‑11, the Online Streaming Act, in the House of Commons. Its goal is to allow the CRTC to regulate online streaming services. The Netflixes and Disneys of the world, as well as platforms like Spotify and YouTube, are targeted by the bill. It will potentially cover almost all audio and audiovisual content accessible online in Canada.”

The view presented by the MEI was written by Samuel Bachand, a lawyer at the LIS law firm and primary external counsel for the Justice Centre for Constitutional Freedoms (JCCF.ca) in Quebec, in collaboration with Gabriel Giguère, Public Policy Analyst at the MEI.

“Not only is the government targeting companies like Netflix and Disney, but it also has platforms such as Spotify and YouTube in its sights, and thus, indirectly, almost all audio and audiovisual content accessible online in Canada,” the viewpoint says.

The authors explain that the original Broadcasting Act was “designed as part of an interventionist economic and nationalist political strategy, at a time when radio spectrum, the only resource that allowed for transmissions, was scarce” and that it “entrusted the CRTC to oversee the control and regulation of broadcasting activity.

“But information technology has come a long way since then... Canadians now have access not only to the content offered by traditional broadcasters—the Act’s and the CRTC’s purported raison d’être—but also to a whole new world of additional independent, creative, diverse content. In 2012, in its Reference re Broadcasting Act decision, the Supreme Court of Canada rejected the opinion that the CRTC had general jurisdiction over online content.”

The viewpoint says the goal of Bill C-11 is “thus to correct the current legislation’s blind spots and expand the CRTC’s empire. If adopted in its current form, Canadians could see a massive bureaucratization of today’s most dynamic spaces for creativity and expression.

“Bill C-11 obviously targets content streaming platforms like Netflix and Disney. These online undertakings would fall under the CRTC’s authority. Certain interest groups, like ADISQ, consider this a government attempt to collect taxes from these companies. Others worry, not without reason, about the potentially harmful economic, cultural, and legal consequences of imposing a burdensome government mechanism in an area where freedom and the almost total lack of regulation have worked wonders so far.”

The authors add that “government spokespersons have barely mentioned another regulatory aspect that is even more concerning: In contradiction with the Supreme Court’s 2012 decision, Bill C-11 would allow the CRTC to gain jurisdiction over any ‘program,’ namely any unique audio or audiovisual content that is either: i) monetizable (directly or indirectly generates revenues); ii) broadcast by a company holding a licence; or iii) tagged with a unique identifier under an international standards system (for example, musical content with copyright protection).”

“Pablo Rodriguez, Minister of Canadian Heritage and sponsor of Bill C-11, has said on several occasions that the bill was not aimed at users or creators who publish their own content. It is true that content that does not generate revenue directly or indirectly for the person who uploads it (or who owns the rights to the content) cannot be regulated as such. However, the CRTC’s Chair noted that it would be possible to regulate home videos, contrary to what Minister Rodriguez had stated.”

As well, Section 4 of Bill C-11 “would give the CRTC the discretionary power to regulate streaming platforms, such as YouTube and TikTok, which host this kind of content.

The authors warn that “a wealth of expressive content (podcasts, video clips, etc.) protected by freedom of expression would fall under the CRTC’s authority or, at the very least, could suffer the consequences of CRTC orders targeting the platforms that host them. This follows logically from the ubiquity of tools to monetize multimedia content on social media, where much intellectual, social, and political debate takes place these days.”