COMMENT: C-11 exceptions and loopholes could make new broadcasting legislation dysfunctional

By Monica Auer

ONE OF THE MAIN proposed arguments by Heritage Minister Pablo Rodriguez (above) in support of Bill C-11, the Online streaming law, is that it will “update Canada’s broadcasting rules to include online streaming services and require them to contribute fairly to our culture.” Yet, if passed as introduced in the House of Commons in February 2022, Bill C-11’s exceptions and loopholes mean it could deliver far less than promised.

To begin with, Bill C-11 specifically excludes certain broadcasters from all or some aspects of Canadian broadcasting legislation. Take, for example, the programming available online from a company whose primary business does not involve the distribution of programming to Canadians – companies, say, like Apple or Amazon. A new section created by Bill C-11 (subsection 2(2.3)) excludes from Diffusion Act an online “program transmission” intended to provide customers with information or services directly about “an enterprise not primarily engaged” in program transmission.

This may have been intended to ensure that short programs uploaded by smaller companies to advertise their non-broadcast work to potential customers are clearly outside the Actjurisdiction. As presented to the House in February 2022, however, could this exception not also apply to online programming transmitted by Apple TV+ or Amazon Prime? Such programming, after all, could be seen as simply providing information about a related aspect of their owners’ core business – the sale of recorded audio-visual content, in the case of Amazon, or electronic devices that can display or access audio-visual content. visual content, in the case of Apple.

Whether or not C-11 intentionally excludes all undertakings whose principal activity is not based on broadcasting, it is also unclear why it is necessary to make such an exception by means of a definition: after all , the Diffusion Act and Bill C-11 already allows the CRTC (through current and proposed sections 9(4)) to exempt entities engaged in broadcasting activities where they are manifestly incapable of contributing to the implementation of Parliament’s broadcasting policy for Canada.

“Apart from exceptions, Bill C-11 has shortcomings – inadvertent or other omissions that make it difficult, if not impossible, to apply the Broadcasting Act to real situations”

Incidentally, what is the rationale for including in Bill C-11 a new reference to the exemption in the Diffusion Actthe regulatory policy of in section 5? Section 5(2)(h) now directs the CRTC to avoid imposing obligations on broadcasters if it does not materially contribute to the broadcasting policy of Parliament in Canada – since the CRTC exercises its power to exempt since 1991, why this new regulatory policy heading mandatory?

Bill C-11 appears to create another exception in the Diffusion ActCanada’s broadcasting policy regarding the control and ownership of the broadcasting system, stating that this system “…shall, with the exception of foreign broadcasting undertakings that provide programming to Canadiansbe effectively owned and controlled by Canadians”.

What does this section mean and what is it for? Is its wording clear enough to be enforceable? Even if this clause were clear and enforceable, what does it apply to? Given that Cabinet now prohibits the CRTC from licensing offline radio and television services to non-Canadians, would this exception for foreign services only apply to online broadcasting? If so, and if passed as introduced in the House, Bill C-11 may well leave Canadians with complete ownership and control of 20th century offline broadcasting serving Canadians, while ceding almost complete control of 21st century online broadcasters that also serve Canadians to non-Canadians.

With exceptions, Bill C-11 is flawed – inadvertent or other omissions that make it difficult, if not impossible, to apply the Diffusion Act to real world situations. For example, after giving the CRTC discretion to decide whether to intervene to “maintain” the Canadian ownership of Canadian broadcasters, Bill C-11 empowers the Commission to determine the ownership of broadcasters – but only if those are licensed or exempt from licensing: Bill C-11 creates a loophole because it would also allow online broadcasters to operate without being licensed or exempt.

If Parliament wants the CRTC to ensure Canadian ownership of the country’s broadcasting system, should Parliament not empower the Commission to determine the ownership of any broadcasting service operating in Canada and providing programming to Canadians, whether authorized , exempt from regulation or simply on broadcasting in whole or in part in Canada?

Another gap exists with regard to reasons and evidence. Bill C-11 highlights the importance of original programming for Canada’s official language minority communities: it specifically requires the CRTC to consult these communities “when making decisions that could adversely affect them” and , in particular, to “provide them with all relevant information on which [the CRTC’s] policies, decisions or initiatives are justified”.

This requirement may be intended to ensure that such consultations take place when the CRTC makes decisions about minority language programming. Yet neither the current Diffusion Act nor does Bill C-11 require the CRTC to explain its other decisions, except when it comes to suspending or revoking broadcasting licenses. Fairness certainly demands that all communities affected by the CRTC be entitled to “all relevant information” upon which its decisions are based.

Bill C-11 also adds to the Diffusion Act new undefined terms, including “enhancement”, “discoverability”, “social media service” and the introduction of a requirement that the CRTC be prepared to “modify” policies, decisions or initiatives affecting communities official language in a minority situation. Are all these terms so universally known and clearly understood that they need not be defined? If not, how will they be applied?

“Leaving these issues in Bill C-11 to ensure its speedy passage and enactment risks creating a regulatory regime that works even worse than it does now”

Finally, Bill C-11 amends other laws, such as the Canada Elections Act which currently guarantees political parties fair access to both purchased advertising time and free advertising time during election periods. Bill C-11 clarifies that the CRTC can order offline and online broadcasters to make time available to eligible political parties during election periods. It also obliges network operators – but only network operators – to make free time available to political parties.

Since Bill C-11 specifically excludes all online businesses from the definition of “network”, this means that free political time will only be available from licensed or exempt radio and television networks operating offline – political parties will apparently have to buy time to advertise through online streaming services. And with respect to time off during elections, Bill C-11 also empowers Cabinet to issue directives to the CRTC when determining the proportion of time offline broadcasters should devote to programming or partisan political advertising and the allocation of that time to political parties. . What explains these changes and what is their expected result?

Exceptions and loopholes are not the only problems with Bill C-11 although, like the others, they can and must be corrected. If nothing is done, there will be little left in terms of effective, coherent and symmetrical regulation of offline and online broadcasting. Leaving these issues in Bill C-11 to ensure the bill’s quick passage and proclamation risks creating a regulatory regime that works even worse than it does now.

Effective laws look like well-crafted maps by being clear and comprehensive: the only other recourse for ambiguous wording or missing pieces will be the courts, a process that costs not only time and money, but also opportunity. missed. While Canada needs new legislation to address the online world, the wording of Bill C-11 must be as precise and error-free as possible, both to limit court battles that cause delays and to ensure that the new broadcasting legislation of the 21st century can be implemented to achieve the best results for Canadians. Parliament must fill in the gaps and clarify the wording of Bill C-11.

Monica Auer is executive director of the Forum for Communication Research and Policy.

Screenshot of Pablo Rodriguez taken from the ParlVU stream of the second reading of Bill C-11 on February 16.

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