CANADA

Controversial online streaming bill being amended by senators after waiting more than a year

Story by Anja Karadeglija • National Post


After nearly a year-and-a-half wait, senators will have a chance to make changes to the Liberal government’s online streaming bill and its controversial provisions involving user-generated content.


Heritage Minister Pablo Rodriguez 

The Senate transport committee will meet Wednesday evening to begin clause-by-clause consideration of Bill C-11, a process where they can amend the bill. The most significant of those attempted changes are likely to involve more clearly scoping out user-generated content from the regulatory powers granted to the CRTC, and limiting the CRTC’s powers over algorithms used by digital platforms.

When they spoke to the National Post earlier this summer, multiple senators on the committee said they expected amendments, but a key question now is whether senators appointed by the current Liberal government, but who sit as independents, will support changes.

User content subject to 'some authority' by CRTC under Bill C-11, regulator says

Senators to start early on online streaming bill that raised concerns over freedom of expression

The bill was first introduced in the fall of 2020 as C-10. It became controversial in the spring of 2021 when the government removed an exemption for user-generated content, putting online posts under the CRTC’s regulatory authority, which critics said would harm Canadians’ freedom of expression. After the Senate refused to fast-track the legislation, that version of the bill died on the order paper when the 2021 federal election was called.

The Liberal government then re-introduced the legislation as Bill C-11. Heritage Minister Pablo Rodriguez has maintained the new bill “fixed” the problems identified in C-11 by re-introducing the exemption for user-generated content. In an appearance in front of the committee Tuesday, Rodriguez maintained only a “commercial content” would be covered by the bill.

But critics and experts say the bill includes exemptions-to-the-exemption that are actually much more broad than the narrow use case described by the government, which has repeatedly given the example of professional music on YouTube as an example of what is scoped in.

Vivek Krishnamurthy, director of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, told senators in an earlier appearance: “I’ve been a lawyer for the better part of 15 years and this section is about the most confusing thing I’ve ever encountered.”

He said the wording of the exemptions-to-the-exemption means “there’s nothing that prevents the CRTC from imposing regulations on the full stack of online audiovisual content distribution.”

Steve de Eyre, director of public policy and government affairs for Canada at TikTok, told the committee “as written, any video on TikTok that includes music, which is the majority of content posted on our platform” would meet all three of the criteria to be scoped under the bill.

The government and the CRTC chairman have both stated they don’t intend to use the legislation to regulate user-content, leading critics to ask why those powers are needed in the first place.

“Bill C-11 may not be intended to be a user-censorship bill, but unless you fix it, with the wrong government appointing the wrong CRTC, it could easily become one,” Matt Hatfield of internet advocacy group OpenMedia said.

Krishnamurthy said that supporters of the bill will argue the legislation stipulates “the CRTC must take free expression into account, and…we can trust our institutions not to be overly broad,” but “that’s not good enough.”

“We need to specify in the law exactly how things apply and not leave it to the discretion of a regulatory agency. That’s especially important because Canada is not immune to the whims of populist authoritarianism that are howling around the world. We cannot be sure that our institutions will perform as well in the future as they have in their past.”

Former CRTC chairman Konrad von Finckenstein suggested adding in language stipulating regulations “must be constructed in such a manner that user generated content is not affected.”

Former CRTC vice-chair Peter Menzies likewise urged senators “to amend Bill C-11 to make it absolutely clear that under no circumstances will the CRTC have jurisdiction over user-generated content, neither directly nor through platforms that depend upon it.”



Skyship Entertainment CEO Morghan Fortier testifies at the House of Commons heritage committee on May 24, 2022. Bill C-11 was “written by those who don’t understand the industry they’re attempting to regulate,” she said.© Provided by National Post

Critics have also taken issue with the government’s plans to force platforms to ensure their algorithms promote Canadian content, which they say don’t take into account how social media algorithms actually work, meaning the plan will backfire and hurt creators.

“We would never tolerate the government setting rules specifying which books must be placed in the front window of our bookstores or what kinds of stories must appear on the front pages of our newspapers. But that’s exactly what the discoverability provision in section 9.1(1) currently does,” Hatfield said.

John Lawford, executive director of the Public Interest Advocacy Committee, suggested the bill be changed to allow the CRTC to require platforms to showcase Canadian content through a static measure such as a banner users can click on, but not through prescribing algorithmic outcomes.

Critics warn that if Canadian content is shown to users who aren’t interested in it, and thus don’t engage with it, the algorithms will then downgrade that content – harming Canadian creators’ efforts to reach an international audience, for many the source of most of their views and revenue.

Morghan Fortier, CEO of Skyship Entertainment, told the committee “that’s maybe the most disheartening thing about Bill C-11. It’s willing to sacrifice the worldwide reach of all these unique Canadian voices for the sake of more regulation and more government intervention.”