Regulate and Chill

Last year, the CBC’s parliamentary grant totalled $1.27 billion — some $30 from each taxpayer. In return, the Mother Corp had to obey conditions set by the Canadian Radio-television and Telecommunications Commission, including that 85 percent of video programming consist of homegrown content. This requirement — along with the funding — has become increasingly controversial amid the rise of social media and streaming services. Simply put, fewer and fewer Canadians pay attention to their national broadcaster for entertainment and news. They turn to alternative sources like Facebook, Netflix, and YouTube, while the content funded by their tax dollars goes unwatched.

Enter Bill C‑11, the Online Streaming Act. Howard Law traces the origins of this contentious measure — which requires streamers to contribute to the creation, distribution, and production of Canadian content — in Canada vs California. The former director of media locals for Unifor, Law completed his manuscript last November, soon after the CRTC opened public hearings to help define the regulatory framework of the bill, which received royal assent in April 2023 and should be fully in effect by late 2025. Alongside an examination of history and policy, he explores how the Online Streaming Act “captures deeply important choices about Canadian culture” and anticipates the implications of “regulating the next generation of mass media in Canada.”

Before Bill C‑11, there was the Canadian Broadcasting Act. Introduced in 1936, it addressed fears of pervasive American influence over the airwaves by transforming the four-year-old Canadian Radio Broadcasting Commission into the wide-ranging Canadian Broadcasting Corporation. Following revisions in 1958 and 1968, the Broadcasting Act was significantly revamped in 1991 by Brian Mulroney’s Progressive Conservatives. But they couldn’t account for a monumental innovation soon to come: the World Wide Web.

That problem eventually fell to Justin Trudeau’s Liberals. In September 2017, the heritage minister, Mélanie Joly, made recommendations with her “Creative Canada” policy framework. Forgoing a national content requirement for internet service providers, social media sites, or streamers, she brokered an agreement between Ottawa and Netflix: the streamer would spend $500 million over the next five years on productions in Canada. The deal proved unpopular; to many, it seemed that Netflix was merely confirming its plans to “make American movies in Vancouver and Toronto with the benefit of the low Canadian dollar and government-funded labour rebates.” Many Quebecers balked at the lack of any guarantee for French-language content. The deal quickly became a political liability for Joly, who was demoted to a lesser cabinet portfolio (before re-emerging as the foreign affairs minister in 2021).

In June 2018, the Liberals appointed the Broadcasting and Telecommunications Legislative Review Panel — known as the Yale Panel, after its chair, the lawyer Janet Yale — to make recommendations about broadcasting legislation. Its report informed the first version of the Online Streaming Act, Bill C‑10, in 2020. While “sleek, unadorned and designed to avoid trouble,” it overlooked a problem highlighted by Martin Champoux, the Bloc Québécois MP for Drummond. C‑10 would have removed the 1991 act’s mandate that “the broadcasting system was to be effectively owned and controlled by Canadians.” Conceivably, for one nightmarish example, Rupert Murdoch could buy Global TV and turn it into Fox News North. In response, the Liberals voted for Champoux’s redraft, which restored the mandate. All seemed well until April 23, 2021, when Julie Dabrusin, then the parliamentary secretary for heritage, presented a surprise amendment that would subject user-generated content, like YouTube videos, to regulation. As Law puts it, “That was how Bill C‑10 blew up.”

Dabrusin and her Liberal colleagues argued that an uncertain future necessitated a wide net, so that future governments could have the flexibility to adapt to a rapidly changing media landscape. The official opposition vehemently opposed the bill and positioned itself as the defender of freedom of expression. The Conservative leader, Erin O’ Toole, asserted the legislation allowed the government to “moderate Canadians’ opinions” and constituted “an abuse of power,” while Pierre Poilievre, then the party’s critic for jobs and industry, insisted it was a smuggle-through-customs plot to legalize propaganda and state censorship. “Before us is a bill that would allow government bureaucrats to rig technological algorithms in order to favour certain kinds of pro-government content,” he alleged during a meeting of the Standing Committee on Canadian Heritage.

While not necessarily going as far as Poilievre, many Canadians objected to C‑10. Following the September 2021 federal election — which returned the Liberals as a minority government — Canadian Heritage revisited the legislation yet again. Five months later, the Online Streaming Act, renumbered Bill C‑11, was tabled. It excluded user-generated content from oversight but included troubling clawback language. In the ensuing firestorm, the Liberals stuck to a talking point: “Platforms are in, users are out.” Critics argued the two are not so easily separable. To mandate Canadian content, Ottawa would have to interfere with the algorithms that power search results. Effectively, that means users would be in. Moreover, if platforms are required to offer results based on the uploader’s nationality and not the video’s relevance, viewers may be more likely to skip them or hit the thumbs-down button.

The controversy over user-generated content diverted attention from the Online Streaming Act’s primary aim: regulating streamers. Problems remained there, too. Netflix Canada’s director of public policy, Stéphane Cardin, argued entertainment streamers should be exempt from the Canadian content requirements that apply to vertically integrated media companies, like Bell and Rogers, which run sports and news programs as part of their compulsory output. Additionally, C‑11 lacks clarity on what makes a program “Canadian”— and therefore which productions may qualify for expenditure credits. As Law points out, this issue is one of hundreds the CRTC must address as it implements C‑11’s regulatory framework.

Canada vs California does a thorough job on the history and policy fronts. It’s chock full of detail and littered with graphs and tables. It falls somewhat flat philosophically, however. Law attempts to “make the case for why we regulate culture in Canada” in a lukewarm closing chapter that spends half of its seven pages rehashing arguments Northrop Frye made five decades ago. Law also doesn’t say much about declining trust in mainstream media, a major factor in the CBC’s viewership downslide, and he scarcely mentions CBC Gem, the broadcaster’s streaming service, launched in 2018 as a competitor to Netflix and its ilk. Nonetheless, his book will get many readers up to speed on the nitty-gritty of the Online Streaming Act as it works its way through implementation — and into our everyday lives.