Memo to Senators: C-11 is coming to a screen near you.

June 20, 2022

The House of Commons has sent the Online Streaming Act to the Senate where Conservative Senate Leader Leo Housakos’ tweet (above) heralds one last furious lap around the legislative oval for Bill C-11.

If I had the ear of Canadian Senators, here is what I would tell them.

First, if it was ever in question, maintain that Senatorial chill. It will be an improvement on the debate so far.

This won’t be the first time Senators have been handed a controversial C-Bill filibustered by the Official Opposition to get attention and then expedited by a Government using closure with majority support.

Bill C-11 was reviewed by Heritage Committee MPs for 20 hours over ten sittings with more than 50 witnesses. And that’s not counting all the Committee time spent on C-10 in 2021.

At the end of that run, which included four sittings of undisguised filibustering, Conservative Committee vice-chair John Nater said (a) he wanted to schedule another 20 witnesses and (b) he would not agree to amend and return the Bill to House for Third Reading until after the Committee put aside C-11 to conduct an inquiry and complete a report on the incident concerning Hockey Canada.

That put clause-by-clause amendments (of which Mr. Nater would submit more than 120) into the late Fall. On that timetable C-11 would pass, to borrow Mr. Nater’s words, “eventually.”

The Conservatives' goal was and remains to force the Liberals to walk away from their Bill’s provisions relating to videos and music streaming on hosting platforms, while messaging to voters about freedom of expression and censorship.

Throughout the Committee proceedings there was nary a hint of a side conversation to find a compromise which I suggested in a previous post is well within reach.

In the end the Conservatives gave the Liberals a binary choice: wait out an indefinite filibuster or capitulate to CPC demands. Instead the Liberals joined with the Bloc and NDP to end the filibuster and surrender nothing.

That meant a single day in Committee for amendments, a political farce by any measure. There were at least 150 amendments on the table. Nevertheless in a thirteen-hour sitting on June 14th, forty-two amendments to the Bill were approved. Many were unanimous.

That much Senators already know. What about substance of the Bill?

The majority of the forty-two approved amendments were not contentious, inserted into the Act’s clause on the objectives of national broadcasting policy.

Many amendments tabled by groups supporting the Bill did not make the cut: for example, the local news amendment recommended by the CRTC and the government’s own expert panel was voted down by both Liberals and Conservatives.

The sticking points were the four signature amendments sought by the Conservatives.

They got their first, drawn from their 2021 election platform: the repeal of $120 million in annual Part II fees paid by broadcasters to the Consolidated Revenue Fund.

Their second ought to have fallen like ripe fruit off the policy tree but did not: a minimum revenue threshold below which Internet broadcasters would be exempted from regulation. If Senators don’t fix that, the CRTC will.

Next came the hard part: amendments to delete sections 4.1, 4.2 and 9.1(1)(e). That meant ousting CRTC regulation of any uploads to YouTube, TikTok and Facebook; as well as prohibiting “discovery” orders to promote Canadian music or videos if that would require the platforms to tweak their recommendation algorithms. Those were key sections in the Bill and deleting them was a dealbreaker for the other parties.

In the theatre that the Committee proceedings became, the Conservatives accused Heritage Minister Pablo Rodriguez and outgoing CRTC Chair Ian Scott of contradicting each other and obscuring the meaning of section 4.1. The Minister told Canadians that “platforms are in, users are out” while Scott acknowledged that both the current Broadcasting Act and Bill C-11 would allow the CRTC to “regulate” user programming.

In the interest of clearing that up, here are the facts.

The current legislation is technologically neutral and makes no distinction between conventional and Internet broadcasting platforms. Instead of tabling C-10 or C-11, the federal cabinet had the option to issue a policy directive to the CRTC reversing the Commission’s 20-year exemption of Internet broadcasting platforms and, if cabinet chose to do so, provided a road map similar to the provisions of Bill C-11.

That is what Scott meant when he said the current Act already gave the CRTC free reign over Internet hosting platforms and user programming. The new Bill makes that existing CRTC power explicit but also instructs the Commission in section 4.2 to draw a regulatory boundary between “commercial” and non-commercial programming, and also take into account "direct and indirect revenue."

Today’s YouTube channels are a mix of programming formats: long-form video from linear broadcasters; music streaming services; aggregated channel menus (we used to call that “cable TV”) but mostly niche video content posted by “YouTubers” compete for audiences via the platform’s proprietary recommendation algorithm.

The Liberals (and anyone else in their right minds) have zero interest in micro-regulating 160,000 Canadian YouTubers and their thousands of short-form videos. That is why section 4.2 gives the CRTC the discretion to exempt non-commercial programming while Google retains the right to appeal to the courts if they get it wrong.

While there is criticism that section 4.2 lacks specifics and leaves too much room for the Commission to define “commercial” and quantify "revenue," not one of C-11’s opponents have offered a sharper or more fulsome version of the section. There has been only one demand: exclude all hosting platforms from regulation forever, pointe finale.

The policy case for Bill C-11’s regulation of commercial programming on hosting platforms is twofold.

Right now, YouTube’s music uploads and streaming services compete head-on with Canadian radio. This is a policy no-brainer: quite reasonably You Tube has publicly agreed to regulation of its music services.

As for video content, in the long term (if such a thing exists for the Internet) YouTube may evolve into a major distribution platform for commercial video falling into the priority genres of Canadian news, sports, and entertainment we currently see and hear on linear platforms. The policy question is why would an important broadcasting technology of the future be permanently excluded from the Act?

But to cut through the fog of war on section 4.2, it is helpful to turn the spotlight on the word “regulate.”

Up until now the word “regulate” has been used too loosely in the C-11 debate.

In the current Broadcasting Act, “regulating” content includes at least these four major points:

1. Who makes or pays for Canadian content? The Act empowers the CRTC to determine which media companies writes cheques to production funds or make CanCon themselves. For Internet broadcasting, Bill C-11 imposes contributions on platforms and expressly excludes users. That is why section 4.2 refers to user programming on hosting platforms: so the Commission knows what programming revenue to count for the purpose of calculating CanCon contributions from the platforms. · What kind of CanCon programming is supported by regulated funding or spending? The CRTC establishes priority categories of Canadian content, for example News and Drama. But as for YouTube being affected, section 9(6) of Bill C-11 expressly prohibits the CRTC from applying any such genre regulation to hosting platforms. This was pointed out to Heritage MPs by the CRTC’s General Counsel on June 1st but seems to have flown under the radar. There will be no CRTC programming goals or quotas for YouTube. · Oversight of programming content: The CRTC has historically taken a light touch to oversight of programming containing abusive comment, misinformation, discriminatory stereotypes, or age-inappropriate content. Its authority to do so is rooted in the section 3(1)(g) requirement that programming be “of a high standard.” Crucially section 3(1)(g) cannot apply to hosting platforms because Bill C-11 amends it to require “control” of programming and then in section 2.2 deems YouTube not to possess that programming control. That is why claims of Bill C-11 “censorship” are categorically false. · The discovery and promotion of Canadian content: The CRTC has always required radio and TV companies to showcase home grown programming and Canadian artists. Bill C-11 applies this to all Internet broadcasting platforms including YouTube although section 9.1(1)(e) prohibits the Commission from ordering a specific change to recommendation algorithms.

That means the fury over C-11 boils down to discoverability of Canadian video content and the role that hosting platforms’ recommendation algorithms play in that.

Which brings us to the “backfire” argument raised by Google and Canadian YouTubers.

The concern is that Canadian YouTubers’ videos may be ignored or disliked if a CanCon recommendation algorithm pushes their niche content to millions of Canadians who have no interest in that niche. If the existing YouTube algorithm is indeed that badly designed, viewer disinterest could result in YouTubers’ videos being “buried.”

You would have to be empathy-depleted to ignore YouTubers’ fears given that a quarter of them are trying to make a living from their channel. My own view is that it would be surprising if YouTube’s algorithm engineers, who possess reams of data on individual viewing preferences, were unable to figure out a solution to such a massive misfiring of their recommendation tool. At the very least we ought to give the CRTC its opportunity to conduct the expected public consultation on discoverability and recommendation algorithms before any discoverability requirements are imposed or rejected.

But to reach the harbour where Senators might be allowed to coolly appraise C-11, it would be helpful if both the Liberals and Conservatives reconsidered their political messaging.

So far Conservatives are committed to the heat-seeking narrative of “freedom” and “censorship.” It is grist for a summer membership drive, so it’s unlikely to change. But maybe they will have second thoughts.

As for the Liberals, the Minister’s assurance that “platforms are in, users are out” isn’t getting much traction judging from the one-way traffic against C-11 on social media.

Even though a public opinion poll in early May suggested solid support for the government’s approach, the Conservatives are trying to change that. The Liberals appear serenely disengaged on C-11, as if they can get out their message through ParlVu and CPAC. Most Canadians are not going to study the text of the Bill and 900-word news stories are unlikely to zero in on the legal nuances of “regulate.”

The Liberals raised expectations of YouTubers three months ago when they vowed in the House to issue a Ministerial policy directive that would “not include digital first creators” in regulatory contributions or discoverability. The Liberals never revisited that commitment in Committee and the Minister never released a draft CRTC Policy Directive that might have taken the air out of the Conservative ginned up accusations of censorship.

Here’s a proposal for a summer project for the Minister: publish a draft policy directive exempting YouTuber videos from discoverability regulation for the next five years.

It might make the Senate’s work a little easier.