Bill C-11, Canada’s first major amendment to the Broadcasting Act since the 1990s, received royal assent in April of this year. With the goal of modernizing the act, the impact of the bill has the potential to be substantial. In the wake of this significant legislative change, we asked Margaret Robbins, partner at Lenczner Slaght, to explain the controversy and opportunities, how the amendment will play out in a global landscape, and exactly what “Can Con” means on the internet.
Since Bill C-11 passed this spring, what changes can Canadians expect to see in the online content they consume? Why was this bill seen as controversial?
The internet has turned us all into global media citizens. In the current media landscape, where Canadians watch and listen to media primarily online, a new bill recently passed by the Federal Government asks what it means to be Canadian on the internet. As with all things online, the debate has been heated.
Bill C-11, which received royal assent on April 27, 2023, is the first major amendment to the Broadcasting Act (the Act) since the 1990s. It is intended to modernize the Act – somewhat belatedly bringing it into the internet age. The Bill has the potential to completely reshape what it means to be Canadian on the internet.
The centerpiece of the legislation, at least from the perspective of those assessing its impact, has been the extension of the Canadian content requirements, colloquially known as “Can Con”, to streaming services. Internet streaming giants like Netflix, Disney+, YouTube and Spotify are now caught within the regulatory ambit of the Canadian Radio-television and Telecommunications Commission (CRTC) who will determine what Can Con will mean on the internet.
Bill C-11 caught the attention of content creators and streaming services alike. The Can Con requirements imposed on traditional broadcasters, which require broadcasters to promote Canadian artists, will now apply to online content. The regulation of streaming will not only impact the streaming service but also may impact content creators in Canada who use platforms such as TikTok and YouTube. These creators lobbied to curtail the reach of the Bill to exclude individual content creators. While they were successful before the Senate on that front, the relevant amendment was rejected by the House. This means that both platforms and users creating content may be captured by the Can Con requirements of the CRTC.
On the other side of the equation, Bill C-11 may create greater opportunities for Canadian creative talent to break into the market and see the kind of exposure that was the hallmark of Can Con on radio and television in the 1990s. There is certainly a reason Canadians of a certain generation can sing every word of “Superman’s Dead” by Our Lady Peace and it’s not just that it is a great song to sing at karaoke. Can Con requirements certainly had an impact on Canadian artists in the past and, if the CRTC is able to craft the regulations to meet the internet age on its own terms, future Canadians may all share a deep and abiding love for a particular YouTube influencer with similar Can Con credentials.
The truth is, as with all significant legislative changes, the impact will only be realized in implementation. In the short term, Canadians will not likely experience any change in their internet experience. While Bill C-11 made sweeping changes to include streaming within CRTC’s regulation of Can Con, we do not yet know how that regulation will work in practical terms online.
In the long term, the impacts may be substantial. Companies such as YouTube use algorithms to push content to users based on interests. The imposition of a geographic component, where content is pushed to users based on their Canadian location rather than a demonstrated interest, would be a marked shift in how these companies operate. It could change what Canadians see when they login and why.
Given the bill’s potentially wide-ranging impact on the online media landscape of Canadians, it will continue to be closely observed through the CRTC’s implementation process.
The bill gives the CRTC broad regulatory powers. What controls exist, either in the bill itself or generally, to monitor and curb these powers?
The CRTC powers under the bill are very broad. Now that the bill has passed, we anticipate a policy direction to CRTC will be issued by Cabinet to help guide the CRTC in its implementation of the bill. The policy direction may be general or specific, but in either case will shape the implementation process of the CRTC. It will provide the framework for implementation and a check on the CRTC’s approach.
This policy direction will be subject to a 30-day public consultation period, which will likely see streaming companies and content creators lobbying to shape the guidance provided to the CRTC.
The CRTC will then have to make regulations and orders to create the new regime within the framework of the policy directive. This will include providing a definition of Can Con, which will impact the way in which streaming services can utilize Canadian partners to comply with the CRTC’s requirements. The CRTC regulations will go through a public consultation process, which will engage companies and Canadians in a debate about what exactly makes something Canadian online.
It is difficult to know, at this juncture, how the public consultation process will shape either the policy direction or the ultimate regulations.
Creators will be watching these regulations closely to see if such cross-border hits as CBC’s Schitt’s Creek, streamed for a time on Netflix, will be replicated across the streaming platforms.
The CRTC will continue to have the power to exempt certain services from the regulations. Content creators will likely look to the CRTC to exempt their work from regulation.
Much of this bill is focused on online undertakings. What role will this bill have in shaping the future regulatory environment for traditional Canadian broadcasting undertakings?
Bill C-11 adds online undertakings to the Act, which are a new class of broadcasting undertaking inclusive of transmission or retransmission of programs over the internet. For traditional Canadian media companies, which have been regulated by CRTC’s Can Con requirements for years, the addition of an online undertaking may have a levelling effect.
Streaming services being exempt from Can Con requirements arguably puts traditional media at a disadvantage. Having to comply with the CRTC regime in an increasingly globalized digital media environment certainly impacted Canadian media’s ability to compete.
Notably, while the bill will regulate foreign streaming companies, the language applicable to Canadian companies is more stringent than that applied to foreign broadcasters. Canadian companies are required to make “predominant use” of Canadians in the creation and presentation of content. Foreign online broadcasters will have a more lenient requirement of making the “greatest practicable use” of Canadians. As a result, there may continue to be different pressure applied to Canadian companies.
Any other insights regarding the legislation?
With so much of the actual application of the bill in the air, it’s hard to predict exactly the impact it will have on Canadian media, streaming companies, content creators and Canadians consuming media online.
What we do know is that giant media companies have not shied away from making their positions clear when Canadian regulations impact them, as was made evident by Meta’s blocking of Canadian news links in response to the Online News Act. What the response will look like to the Act here is unclear. Its benefit to the promotion of Canadian talent is likewise unclear. The future of Can Con in an era of the internet is much more complex than regulating the songs played on FM radio stations. Whether the CRTC can tackle the new challenges of the internet age with the new tools at its disposal remains to be seen.
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Margaret Robbins is a Partner at Lenczner Slaght. Margaret maintains a broad commercial litigation practice, with a particular focus on professional liability, class actions, and public law. Margaret has represented clients at trial and in regulatory proceedings. In addition, she has significant appellate experience, including appearing before the Divisional Court, the Court of Appeal of Ontario, the Federal Court of Canada and the Federal Court of Appeal.