New broadcasting bill could regulate all your Facebook, Instagram and YouTube posts, experts say
Rachel Gilmore
GLOBAL NEWS
30/4/2021
Recent government changes to the bill meant to modernize the Canadian broadcasting act could expand regulation to everything individual Canadians put on Facebook, Instagram or YouTube.
Recent government changes to the bill meant to modernize the Canadian broadcasting act could expand regulation to everything individual Canadians put on Facebook, Instagram or YouTube.
© Getty Images Content you upload to YouTube, Instagram and Facebook could be subject to CRTC regulations.
The bill, in its current state, would turn the YouTube video of a kid’s soccer game, or the Instagram reel you posted of your brunch, into a “program” that could be subject to regulation under the Canadian Radio-television and Telecommunications Commission’s (CRTC) rules.
"It's your Facebook post. It's your tweet. It's your cat videos. It's your pictures of your children and grandchildren and that sort of stuff," said Peter Menzies, a former CRTC vice-chair and past newspaper publisher.
"What it means is that somebody will be watching that, from the government, or a government regulator, and will be able to order it to be taken down if they find that it doesn't suit whatever purposes they have."
One goal of the proposed law is to ensure large online streaming services contribute to the "creation, production and discoverability of Canadian content," according to Camille Gagné-Raynauld, a spokesperson for the Canadian heritage minister.
"The bill specifically targets professional series, films, and music. Ensuring that large broadcasters, online or not, contribute to our broadcasting system is a crucial element in asserting our cultural sovereignty in English, French and Indigenous language," she explained.
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The bill, in its current state, would turn the YouTube video of a kid’s soccer game, or the Instagram reel you posted of your brunch, into a “program” that could be subject to regulation under the Canadian Radio-television and Telecommunications Commission’s (CRTC) rules.
"It's your Facebook post. It's your tweet. It's your cat videos. It's your pictures of your children and grandchildren and that sort of stuff," said Peter Menzies, a former CRTC vice-chair and past newspaper publisher.
"What it means is that somebody will be watching that, from the government, or a government regulator, and will be able to order it to be taken down if they find that it doesn't suit whatever purposes they have."
One goal of the proposed law is to ensure large online streaming services contribute to the "creation, production and discoverability of Canadian content," according to Camille Gagné-Raynauld, a spokesperson for the Canadian heritage minister.
"The bill specifically targets professional series, films, and music. Ensuring that large broadcasters, online or not, contribute to our broadcasting system is a crucial element in asserting our cultural sovereignty in English, French and Indigenous language," she explained.
VIDEO
"Liberals propose new Canadian Broadcast Act rules for online streaming platforms"
More broadly, the bill is aimed at modernizing the Broadcasting Act to reflect the fact that Canadians consume things like music and movies differently nowadays -- often using streaming services or social media.
By bringing platforms like YouTube and Netflix under the Act, they'd be forced to pay a portion of their revenue into the Canada Media Fund, which funds Canadian programming, and would be forced to make Canadian content more visible on their platforms.
Originally, the law exempted user-generated content from regulation – so the videos you post wouldn’t be subjected to Canada’s rules for broadcasters, like the ones Global News have to follow.
But on Friday, the government decided to take that provision out of the bill.
“The effect of the removal is to take the position that all user-generated content, all TikTok videos, Instagram uploads, YouTube videos and the like … all that content is subject to CRTC regulation,” explained Michael Geist, who holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa.
Currently, the CRTC dictates a certain percentage of television programs and music on the radio has to be Canadian content.
This bill would extend those rules to social media -- so the TikTok algorithm could be required to offer up more Canadian videos, or YouTube might have to recommend artists like Arcade Fire and Arkells.
Read more: Broadcasters, Netflix push politicians on separate visions for sweeping regulation changes
The current legislation extends those requirements to individual users too.
"Putting the CRTC in charge of the entire...internet, I mean, that's like putting a logging company in charge of the Great Bear Rainforest," Menzies said.
"It's not going to end well."
And while the government insists that individual Canadians won’t be hauled in front of the regulator to atone for the lack of Shania Twain in their playlists, there’s still one big issue with the legislation, according to the experts: platforms like Facebook, Instagram and YouTube will carry the onus for ensuring the content you upload meets those CRTC rules.
“Social media companies (would be) legally responsible for all these videos that users post as though they're somehow broadcasting programs,” explained Emily Laidlaw, Canada research chair in cybersecurity law at the University of Calgary.
Read more: Liberals propose new rules for streaming platforms like Netflix, Spotify
She warned that if those changes go through, social media giants might just leave.
“They're either going to heavily regulate this or they're going to exit the market. Canada is not exactly a big market for them, so I would not be surprised if there is significant pushback by social media,” said Laidlaw.
Menzies agreed that this bill may prompt companies to toy with leaving the Canadian market.
"Any company, when faced with uncertainty or what they might believe is unfair treatment or inappropriate treatment or even unconstitutional treatment, I mean, companies sit down and they develop options," he said.
"I'm quite sure that's one of the options that's on the table."
Despite the concerns from experts, the government isn't worried about the possibility of these companies leaving Canadians behind.
"There is no realistic scenario where Canadians are banned by platforms," said Gagné-Raynauld.
"The amendment to remove section 4.1 would effectively allow the CRTC to potentially require contributions from platforms that curate professional content, like YouTube. All major foreign companies have informed us they intend on respecting the laws and regulations of this country."
Video: Petition to create support fund for Canadian musicians
Global News contacted YouTube, Facebook and Instagram to ask whether the latest change to the bill could force them out of the Canadian market. The companies did not directly answer that question.
“Like many, we were surprised to see the Heritage Committee extend Bill C-10 to include social media and user-upload services and apps,” wrote a spokesperson for Google, which owns YouTube, in an emailed statement.
“This potentially extends CRTC regulation to all audio and audio-visual content on the internet, which has profound implications for not just social media, but virtually all websites, podcasting, online hosting and much more.”
The company said YouTube remains “concerned” about the “unintended consequences” of the bill.
“Until we see the final legislation, we cannot predict or comment on the breadth of impacts on YouTube and our users,” the spokesperson wrote.
Facebook gave a similarly vague response when asked directly if they’d consider an exit from the Canadian market -- but they did not rule it out.
“We haven't yet had a chance to fully review the changes,” a Facebook company spokesperson wrote in an emailed statement.
“We know that creating rules to govern speech online is complex and important work, and we look forward to being consulted as the government develops their plans."
Video: Music fans feeling mixed as Neil Young, other artists sell song rights
For Canadian musicians, though, the legislation is getting at an issue they say needs to be addressed.
“Global platforms like Spotify have been incredible for a lot of Canadian artists, and it's important to keep that playing field level,” said Andrew Cash, a former NDP MP who now serves as president and CEO of the Canadian Independent Music Association.
Video: Instagram unveils its new safety features
He added that many companies "are paying" the artists.
The issue at hand, rather, is about ensuring the same rules apply across all platforms, according to Cash. If the government hadn't removed the bill's section that exempted user-generated content, Cash said, social media companies would have been left out of the new rules.
"Fundamentally, what's happening here is that the rules that are going to apply to something like Spotify or Apple Music have to apply to YouTube as well. And that's the issue," Cash said.
He said he believes the legislation is "attempting to clarify" the grey areas of the music streaming world
“It’s never been super easy to make a living in the arts, for sure. But it's a lot harder when the playing field isn't even and the chips are stacked up against you … I think if the playing field evens out, you're going to see the market change. And our feeling is it is going to change for the better.”
He said he supports the legislation as it stands now, despite concerns being voiced by the social media companies.
“Music’s a great way to … get rich, but a lousy place to make a living,” Cash said.
“And I think C-10 has the potential to move us closer to a place where it's a better place to make a living.”
More broadly, the bill is aimed at modernizing the Broadcasting Act to reflect the fact that Canadians consume things like music and movies differently nowadays -- often using streaming services or social media.
By bringing platforms like YouTube and Netflix under the Act, they'd be forced to pay a portion of their revenue into the Canada Media Fund, which funds Canadian programming, and would be forced to make Canadian content more visible on their platforms.
Originally, the law exempted user-generated content from regulation – so the videos you post wouldn’t be subjected to Canada’s rules for broadcasters, like the ones Global News have to follow.
But on Friday, the government decided to take that provision out of the bill.
“The effect of the removal is to take the position that all user-generated content, all TikTok videos, Instagram uploads, YouTube videos and the like … all that content is subject to CRTC regulation,” explained Michael Geist, who holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa.
Currently, the CRTC dictates a certain percentage of television programs and music on the radio has to be Canadian content.
This bill would extend those rules to social media -- so the TikTok algorithm could be required to offer up more Canadian videos, or YouTube might have to recommend artists like Arcade Fire and Arkells.
Read more: Broadcasters, Netflix push politicians on separate visions for sweeping regulation changes
The current legislation extends those requirements to individual users too.
"Putting the CRTC in charge of the entire...internet, I mean, that's like putting a logging company in charge of the Great Bear Rainforest," Menzies said.
"It's not going to end well."
And while the government insists that individual Canadians won’t be hauled in front of the regulator to atone for the lack of Shania Twain in their playlists, there’s still one big issue with the legislation, according to the experts: platforms like Facebook, Instagram and YouTube will carry the onus for ensuring the content you upload meets those CRTC rules.
“Social media companies (would be) legally responsible for all these videos that users post as though they're somehow broadcasting programs,” explained Emily Laidlaw, Canada research chair in cybersecurity law at the University of Calgary.
Read more: Liberals propose new rules for streaming platforms like Netflix, Spotify
She warned that if those changes go through, social media giants might just leave.
“They're either going to heavily regulate this or they're going to exit the market. Canada is not exactly a big market for them, so I would not be surprised if there is significant pushback by social media,” said Laidlaw.
Menzies agreed that this bill may prompt companies to toy with leaving the Canadian market.
"Any company, when faced with uncertainty or what they might believe is unfair treatment or inappropriate treatment or even unconstitutional treatment, I mean, companies sit down and they develop options," he said.
"I'm quite sure that's one of the options that's on the table."
Despite the concerns from experts, the government isn't worried about the possibility of these companies leaving Canadians behind.
"There is no realistic scenario where Canadians are banned by platforms," said Gagné-Raynauld.
"The amendment to remove section 4.1 would effectively allow the CRTC to potentially require contributions from platforms that curate professional content, like YouTube. All major foreign companies have informed us they intend on respecting the laws and regulations of this country."
Video: Petition to create support fund for Canadian musicians
Global News contacted YouTube, Facebook and Instagram to ask whether the latest change to the bill could force them out of the Canadian market. The companies did not directly answer that question.
“Like many, we were surprised to see the Heritage Committee extend Bill C-10 to include social media and user-upload services and apps,” wrote a spokesperson for Google, which owns YouTube, in an emailed statement.
“This potentially extends CRTC regulation to all audio and audio-visual content on the internet, which has profound implications for not just social media, but virtually all websites, podcasting, online hosting and much more.”
The company said YouTube remains “concerned” about the “unintended consequences” of the bill.
“Until we see the final legislation, we cannot predict or comment on the breadth of impacts on YouTube and our users,” the spokesperson wrote.
Facebook gave a similarly vague response when asked directly if they’d consider an exit from the Canadian market -- but they did not rule it out.
“We haven't yet had a chance to fully review the changes,” a Facebook company spokesperson wrote in an emailed statement.
“We know that creating rules to govern speech online is complex and important work, and we look forward to being consulted as the government develops their plans."
Video: Music fans feeling mixed as Neil Young, other artists sell song rights
For Canadian musicians, though, the legislation is getting at an issue they say needs to be addressed.
“Global platforms like Spotify have been incredible for a lot of Canadian artists, and it's important to keep that playing field level,” said Andrew Cash, a former NDP MP who now serves as president and CEO of the Canadian Independent Music Association.
Video: Instagram unveils its new safety features
He added that many companies "are paying" the artists.
The issue at hand, rather, is about ensuring the same rules apply across all platforms, according to Cash. If the government hadn't removed the bill's section that exempted user-generated content, Cash said, social media companies would have been left out of the new rules.
"Fundamentally, what's happening here is that the rules that are going to apply to something like Spotify or Apple Music have to apply to YouTube as well. And that's the issue," Cash said.
He said he believes the legislation is "attempting to clarify" the grey areas of the music streaming world
“It’s never been super easy to make a living in the arts, for sure. But it's a lot harder when the playing field isn't even and the chips are stacked up against you … I think if the playing field evens out, you're going to see the market change. And our feeling is it is going to change for the better.”
He said he supports the legislation as it stands now, despite concerns being voiced by the social media companies.
“Music’s a great way to … get rich, but a lousy place to make a living,” Cash said.
“And I think C-10 has the potential to move us closer to a place where it's a better place to make a living.”
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