Bill C-10, an Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts, was introduced in the House of Commons in November 2020.
Among other things, the Bill includes a variety of proposed amendments to the Broadcasting Act. These amendments are designed to provide the Canadian Radio-television and Telecommunications Commission (CRTC) with new mandates to:
- Regulate Canadian and foreign online undertakings (i.e. streaming services and social media websites)
- Impose administrative monetary penalties on broadcasting undertakings
- Update the Act’s broadcasting and regulatory policy objectives to ensure that the needs and interests of Indigenous cultures and of Canada’s diversity are met within the Canadian broadcasting system
Considerable media attention has been given to Bill C-10. There was an initial flurry in November 2020 when the Bill was first introduced into the House of Commons and then another uproar in recent weeks over the issue of social media and whether content that is uploaded by Canadians to social media websites will be regulated by the CRTC.
Bill C-10 was referred to the Heritage Committee for pre-study beginning on Feb. 1, 2021 and remained there well into June. It languished in Committee proceedings for more than four months as the witness and clause-by-clause review processes became mired in a series of seemingly endless debates. In early June, the Government successfully brought a time allocation motion in the House, placing a five-hour limit on further study of the Bill. As a result of that motion, the Bill was removed from the Committee and brought back to the House for consideration and it has now received third reading.
The government’s overriding motivation in reviewing and amending the Act is to establish some form of regulation for foreign online streaming services that will ensure they contribute to the Canadian broadcasting system. Under Bill C-10, the CRTC will be given the mandate to determine the nature and scope of the contributions that online streaming services will make to the system.
Three Kinds of Regulation Likely for Online Streamers
While the CRTC is unlikely to replicate all the regulations that apply today to traditional TV and radio, online streamers will be subject to some form of regulation. There are three kinds of regulation that are most likely to be imposed on them.
The first is to require streaming services to contribute money for the creation of Canadian programs, either by having them spend a percentage of their annual revenues on Canadian content or by requiring them to contribute a percentage of their annual revenues to Canadian production funds.
The second measure that could be imposed on online streaming services would be a Canadian content obligation. Given that streaming services offer content on-demand in a way that is similar to traditional VOD services, it might make sense for the CRTC to adopt a similar regulatory approach and require streamers to devote a certain amount of “shelf-space” to Canadian content.
The third key regulatory measure is discoverability. The goal of discoverability requirements would be to enable Canadians to easily identify and access Canadian content offered by online platforms. The use of algorithms to recommend Canadian content to Canadian consumers is one mechanism that has received attention. But there are other measures as well, such as offering search functions that enable consumers to find Canadian content and curating Canadian content in one place on the streaming service’s platform.
By adopting these, and perhaps other, regulatory measures, the CRTC will develop a regulatory framework that will seek to ensure all online streaming services make appropriate contributions to the Canadian broadcasting system.
Scott M. Prescott is a partner and co-managing partner with the Fasken Ottawa office, where his practice is focused on communications and administrative law. He is an expert on the legal, regulatory and policy frameworks governing the broadcasting and telecommunications industries in Canada.