In June of 2021, Canada’s Parliament passed Bill C-10: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts (Bill C-10). Bill C-10 was drafted in response to recommendations made by the Broadcasting and Telecommunications Legislative Review Panel suggesting reforms of Canada’s broadcasting system to account for digital media. Although Bill C-10 received its third reading, the Senate did not provide approval before Parliament’s dissolution following the 2021 snap election.
In February of this year, the Federal Government revived the contents of Bill C-10, by introducing Bill C-11: the Online Streaming Act (Bill C-11, or the Act).
Impacts of Bill C-11 and Changes from Bill C-10
Bill C-10 was hotly contested, with concerns regarding its implications on free speech for social media users, and the expanded authority it would provide the Canadian Radio-television and Telecommunications Commission (the CRTC) to regulate the algorithms that determine what users see on their feeds. We discussed the potential implications of Bill C-10 on digital and social media companies here. Notably, Bill C-10 would have subjected online streaming services to the regulatory authority of the CRTC.
If passed, the Act would impose substantively the same requirements as Bill C-10. The CRTC would be conferred powers to regulate online digital services, and would require that regulated digital platforms contribute portions of their revenue to the production of Canadian content.
However, in response to criticism surrounding Bill C-10, Bill C-11 has reintroduced a carve-out, excluding the Act from application to programs uploaded to social media services by a user of those services. The Act will still apply if the program is uploaded by the social media service provider, or any affiliate or agent of that provider. Moreover, critics note that Parliament has retained discretion to apply the Act to social media users, as the Act permits the CRTC to apply a series of considerations in order to determine whether to implement regulations upon social media uploads. These considerations include the extent to which the uploaded program generates revenues, and whether the program was broadcasted by a licensed broadcasting undertaking. How these considerations will be applied in practice, and the scope of the Act’s application to user generated content remains unclear.
While Bill C-10 experienced a bumpy road on its way to an eventual fall from relevance, Bill C-11 appears poised to change the regulatory landscape for digital and social media companies in Canada. Digital service companies need to be prepared for coming changes to their businesses, and remain informed on the CRTC’s application of the Act.