Areas of
Pablo Rodriguez

Online streaming bill adds exemption for user content but concerns remain over regulating ‘programs’

Thursday, February 03, 2022 @ 1:40 PM | By Cristin Schmitz

Last Updated: Thursday, February 03, 2022 @ 2:24 PM

The Liberal government says its new bill to regulate online streaming services fixes a much-criticized flaw of its defunct predecessor, Bill C-10, by exempting from regulation most user-generated content disseminated by social media platforms.

“We listened, especially to the concerns around social media and we fixed it,” Canadian Heritage Minister Pablo Rodriguez told a news conference, after introducing Bill C-11 into the House of Commons Feb. 2.

Canadian Heritage Minister Pablo Rodriguez

“When it comes to social media, we made it very clear in the [proposed] Online Streaming Act that this does not apply to what individual Canadians and creators post online,” he said. “No users, no online creators will be regulated. No digital-first creators, no influencers, no cat videos — only the companies themselves will have new responsibilities.”

However Michael Geist, Canada Research Chair in Internet and E-commerce Law at the University of Ottawa’s common law faculty, told The Lawyer’s Daily he still sees problems with the revamped bill.

“The bill is not ready for prime time and still requires extensive review, and further reform to get it right,” he said. “The government insists that regulating user-generated content is off the table, but unfortunately, that simply isn’t the case.”

As he explains in detail in an analysis of Bill C-11 published on his website Feb. 3, “the new bill restores one exception, but adds a new one, leaving the door open for CRTC regulation.”

“Indeed, for all the talk that user-generated content is out, the truth is that everything from podcasts to TikTok videos fit neatly into the new exception that gives the CRTC the power to regulate such content as a ‘program,’ ” Geist said. “I think that some of the concerns with C-10 are addressed, but many still remain.”

He elaborated, “the bill leaves the prospect of treating Internet content as programs subject to regulation in place; envisions the entire globe as subject to Canadian broadcast jurisdiction; increases the power of the regulator; and does little to answer many of the previously unanswered questions.”

(For free speech and other concerns legal scholars raised about Bill C-10, see here.

The introduction of the revised bill was welcomed by the Canadian Media Producers Association, which urged “swift passage” of the legislation. “The Online Streaming Act will reinforce Canadian cultural sovereignty, requiring that foreign tech giants play by the same rules as Canadian companies,” the group said in a press release Feb. 2.

The national advocacy association for hundreds of companies that develop, produce and distribute English-language content made for television, cinema and digital media channels said it will consult with its members on how the objectives of Bill C-11 can best be practically achieved. “The people who work in Canadian film and television production were extremely pleased that during the last federal election campaign, all major federal parties endorsed modernizing the Broadcasting Act to include streaming services. “We encourage MPs to work collaboratively across party lines to pass this important legislation,” the association said, stressing that the legislation “must ensure that Canada’s indie producers have a fair opportunity to negotiate with content buyers to own, control, and monetize the intellectual property that they develop and produce.”

Bill C-11, an Act to Amend the Broadcasting Act and to make related and consequential amendments to other Acts, is a revised version of Bill C-10, the highly controversial legislation passed by the Commons that died on the Senate order paper last year when Parliament prorogued for the fall federal election.

Michael Geist, University of Ottawa

Michael Geist, University of Ottawa

Bill C-11 is part 1 of a three-pronged commitment by the government to address problems related to online streaming and social media. It is to be followed soon by legislation to require companies like Facebook and Google to compensate news organizations for content they use.

As for the third measure, the federal government announced Feb. 3 that it will introduce “as quickly as possible” a legislative and regulatory framework to manage the proliferation of “harmful content” online. The Department of Canadian Heritage announcement also unveiled the eagerly anticipated results of a public consultation last year with respect to the government’s proposed legal approach to thorny issues raised by online incitements to violence, terrorist content, hate speech, non-consensually shared intimate images and child sexual exploitation. 

The Department of Canadian Heritage announced that it “will engage a group of experts whose mandate will be to collaborate with stakeholders and Canadians, in order to provide the government with advice on how to adjust the proposal,” a Feb. 3 press release says.  “This work will be carried out in a transparent and expedited manner, and the Minister [Rodriguez] will propose a revised framework as soon as possible. The Government of Canada is committed to getting this right and to doing so as quickly as possible.” (The newly unveiled results of the government’s online harms consultation are available here.

For its part, Bill C-11 adds “online undertakings — undertakings for the transmission or retransmission of programs over the Internet” — as a distinct class of “broadcast undertakings” under the Broadcasting Act. Online streaming services would thus be subject to regulation by the Canadian Radio-television and Telecommunications Commission (CRTC) — as are TV broadcasters and providers, cable or satellite TV services and radio stations.

The revised bill would give the CRTC express power to require entities that broadcast through social media or online streaming services to provide a share of their revenue from uploading and distributing on their platforms professional content, such as a music album or major sporting event. The money would be used for the creation of Canadian programs, series, music and movies. The proposed Act imposes requirements for Canadian content, including for the creation of content in English and French.

The CRTC would also be empowered to impose administrative monetary penalties to enforce compliance and would be granted information-gathering powers. The proposed Act also provides for the preservation of confidentiality of such information.

The government’s background briefing material states that Bill C-11 “will not apply to social media services except for certain commercial programs” and “will never apply to programs that do not generate revenues.”

The “CRTC cannot regulate Canadians’ everyday uses of social media, including posting amateur programs to these services,” the background material states. “Social media users and individual creators remain exempt from the Act. ... Regulation will not apply to individual creators, streamers or influencers or social media services themselves in respect of the amateur programs posted by their users.”

Factors for the CRTC to consider in determining whether a program is “commercial” include the degree to which it is monetized; whether it is carried in whole, or in part, by a broadcaster regulated by the CRTC; and whether it has an assigned identifier (e.g. an ISO number).

The government said that once the bill is adopted, the CRTC will put a new regulatory regime in place and the federal cabinet will issue a policy direction to guide the CRTC in applying its new rules. “New rules will be put in place in a timely fashion following the passage of the Bill,” the government said.

Asked by a reporter whether the Act’s requirements will apply to amateur creators who make sponsorship revenues for their videos, or who make ad revenue from sites like YouTube, Rodriguez replied “the users are excluded in [s.] 2.1 and the content is ... excluded in 4.1.  So ... it’s mostly about professional music, professional movies ... or series that you will find elsewhere.  ... It’s not about the users. It’s clearly excluded.”

The revised social media exclusion clause is in s. 4.1 while s. 4.2 stipulates the factors the CRTC must consider in developing regulations. Section 4. 1 states, in part, “this Act does not apply in respect of a program that is uploaded to an online undertaking that provides a social media service by a user of the service for transmission over the Internet and reception by other users of the service.”

It further states, in paragraph 4.1(2)((a) and (b), that notwithstanding the social media exclusion, the Act applies “in respect of a program that is uploaded as described in that subsection if the program (a) is uploaded to the social media service by the provider of the service or the provider’s affiliate, or by the agent or mandatary of either of them; or (b) is prescribed by regulations made under section 4.2.

The bill goes on to state in s. 4.2 that the CRTC may make regulations prescribing programs in respect of which the Act applies, and in doing so shall consider the following matters: (a) the extent to which a program, uploaded to an online undertaking that provides a social media service, directly or indirectly generates revenues; (b) the fact that such a program has been broadcast, in whole or in part, by a broadcasting undertaking that (i) is required to be carried on under a licence, or (ii) is required to be registered with the Commission but does not provide a social media service; and (c) the fact that such a program has been assigned a unique identifier under an international standards system.”

The provision further states: The regulations shall not prescribe a program (a) in respect of which neither the user of a social media service who uploads the program nor the owner or licensee of copyright in the program receives revenue; or (b) that consists only of visual images.

As well, the bill stipulates in s. (2.1) that “a person who uses a social media service to upload programs for transmission over the Internet and reception by other users of the service — and who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them — does not, by the fact of that use, carry on a broadcasting undertaking for the purposes of this Act.”

The government stated its proposed changes to the Broadcasting Act are designed to generate and support “greater diversity and inclusion” in the broadcasting system — including creating more opportunities and representation from Indigenous peoples, racialized communities, cultural and linguistic minorities, LGBTQ2+ communities and persons with disabilities.

The CRTC would be mandated to regulate and supervise the Canadian broadcasting system, including online “broadcasters,” in a manner that promotes and supports diverse Canadian content. The Canadian broadcasting system should serve the needs and interests of all Canadians, including those from racialized communities and of diverse ethnocultural backgrounds, socioeconomic statuses, abilities and disabilities, sexual orientations, gender identities and expressions and ages, as well as enhancing the vitality of English and French linguistic communities, the government said.

The bill mandates the broadcasting system in Canada to provide opportunities to Indigenous persons, programming that reflects Indigenous cultures and that is in Indigenous languages, and programming that is accessible without barriers to persons with disabilities.

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