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Online streaming Bill C-11: Everything you need to know

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The federal Liberal government has finally passed Bill C-11, after spending years trying to advance online streaming legislation.

This clears the path for the contentious bill presented by Canadian Heritage Minister Pablo Rodriguez— focused on substantively reforming the Broadcasting Act for the first time since 1991— to come into effect.

Bill C-11 is aimed at ensuring increasingly popular and profitable social media platforms and streaming services such as Netflix, Crave, Spotify, Amazon Prime Video, Disney+ and YouTube are subjected to Canadian content requirements and regulations comparable to traditional broadcasters. The policy change comes with a requirement for these platforms to spend millions investing in Canadian content and creators.

While the NDP and Bloc Quebecois, as well as many in the "CanCon" music, film, and television industries, have backed Bill C-11, alarms have been sounded by critics that the Liberal proposal could have knock-on effects for content creators and what everyday users see online, due to provisions that would require platforms to promote Canadian content.

In their efforts to lobby against this bill, some of the tech companies went to great lengths.

For example, in the fall of 2022, YouTube ran a campaign warning users who earn money making videos about how the legislation could impact their livelihoods. 

The Conservatives, arguing that the legislation will have the impact of censoring what Canadians see online, led the charge against Bill C-11 inside Parliament.

Complicating the back and forth between those supportive of Bill C-11—who call the concerns being raised disingenuous and doing the bidding of big tech—and those who are against it, is that a lot is being left to the Canadian Radio-television and Telecommunications Commission (CRTC) as the regulatory body to determine how it plans to implement it. 

As all eyes turn to how the regulatory framework is set up, here's a comprehensive explainer outlining everything you need to know about how Bill C-11 got to this point, how the legislation has evolved over successive studies, and what may be ahead.

WHAT IS BILL C-11 AKA THE 'ONLINE STREAMING ACT'?

Bill C-11, titled the "Online Streaming Act," is a 56-page piece of legislation that spells out a series of changes to the Broadcasting Act. It was tabled in the House of Commons on Feb. 2, 2022.

The longstanding Broadcasting Act outlines traditional Canadian broadcasting policy, the regulatory role of the CRTC, and has implications for domestic cultural industries. Bill C-11 proposes the first substantive amendments to the Act, since 1991, to take into consideration digital media.

Through the government's proposed changes, the Liberals are aiming to bring streaming giants under regulation by the CRTC, in a similar way to broadcasters on television and radio.

Bill C-11 creates a new category of broadcast known as “online undertakings,” spelling out in the Broadcasting Act certain requirements for platforms that publish programs online, including social media companies. The legislation would give the CRTC greater powers, including the ability to impose financial penalties for entities who violate parts of the Act.

Through this legislation, the Liberals are also seeking to update the Canadian broadcasting system to take into consideration diversity in their programming, accessibility needs, and reflections of Indigenous culture.

BILL C-11 IS FEDS' SECOND ATTEMPT

If the proposals in this legislation sound familiar, that's because this isn't the first time the federal government has tried to pass them, nor is it the first time the proposal has become embroiled in controversy.

During the last Parliament, the Liberals tried to pass these Broadcasting Act changes through in what at the time was known as Bill C-10. First tabled by Rodriguez's predecessor in November 2020 then-Canadian heritage minister Steven Guilbeault, the original version of this bill faced a similarly rocky road in Parliament.

The bill may have first come on your radar in 2021, once it reached the House of Commons committee study stage, when concerns were raised that an attempted amendment to the legislation by the Liberals would result in lacking user-generated content protections.

Without rehashing the whole contentious chapter, in short the Liberals tried to amend the bill to wipe out a section that upheld an exclusion within the Broadcasting Act for individual users of social media platforms.

If this had come to fruition, the concern was that individual users could be viewed as broadcasters under the act, and the cat videos or other everyday content could come under regulation by the CRTC, even though it’s not been an area they’ve ventured near to-date.

This generated considerable backlash, set in motion a series of efforts from Guilbeault to clarify what the bill would, and wouldn’t do. Some of his remarks, including to CTV's Question Period, prompted more confusion and reuttered backtracking. 

The Justice Department weighed in to say that the rights of social media users would be upheld, the Conservatives pushed to talk out the clock and reinstate user exemptions, and the House of Commons Speaker slapped down a Liberal-led attempt to rush through a host of changes to the bill. 

Ultimately, the first version of this bill passed the House in June 2021, but given all of the controversy swirling around the legislation, the Senate refused to fast-track it with the few weeks they had left before the summer recess, citing a desire to do their own deep dive on their own timeline.

Left in limbo as parliamentarians left Ottawa, the legislation then died on the order paper that summer when Trudeau called the 2021 federal election.

When the Liberals moved to reintroduce the legislation after the 2021 campaign—during which they pledged to revive the proposal within 100 days— it was the eleventh bill to be tabled by the government, which is why it went from being called Bill C-10, to Bill C-11.

HOW EXTENSIVE WAS PARLIAMENT'S STUDY ON BILL C-11?

Bill C-11 received robust study and revisions in both chambers, after the legislation was revived last February.

During the House of Commons Canadian Heritage Committee study of the bill last spring—during which MPs heard from 80 witnesses including experts, stakeholders and broadcast industry representatives— the Liberals caused some acrimony when they sped through more than 100 amendments seeking to clarify the bill's aims, and then used procedural mechanisms to curtail the last leg of debate.

Despite this drama, Bill C-11 then passed in the House in June with the support of both the Bloc Quebecois and the New Democrats.

Then, the Senate started in on its methodical examination of the legislation. The bulk of this work was led by the Senate Transport and Communications Committee, which started scrutinizing the bill in broad strokes in June, and then in detail in October when the bill formally passed second reading in the Senate.

The committee, chaired by Conservative Sen. Leo Housakos, stated early on, that its work would be "particularly important" given the complexity of the bill.

Ahead of entering into what became a marathon clause-by-clause, the Senate committee heard from 138 witnesses, including music industry representatives, current and former CRTC executives, academics, content creators, and minister Rodriguez. In all, more than 67 hours were spent hearing from witnesses as part of this study, making history as the longest ever study conducted by a Senate committee.

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"Forcing or attempting to force YouTube, TikTok or other platforms to prioritize Canadian content may be well intentioned, but it is naïve… Forcing people to view content because it’s Canadian does not encourage people to like that content. It is more likely, I feel, to breed negative perceptions of Canadian content from the user," testified digital creator Stewart Reynolds, perhaps better known online as Brittlestar.

"If they know a video is being shown to them primarily because it’s Canadian and not because it is what the user is searching for, it can make the video seem inferior regardless of whether it is or not. It’s like going to a restaurant with corn content or corncon rules. Even though you order the Alberta sirloin, you receive a bowl of corn. Good, perhaps, but not what you wanted," Reynolds told the Senate committee.

Ultimately, the Senate passed 26 out of a proposed 73 amendments. These were the changes that were then sent to the House to reconsider. At the time, Housakos said that while he was confident that senators improved Bill C-11, "there remained many concerns."

WHAT CHANGES HAVE BEEN MADE TO BILL C-11?

In its work, the Senate made a series of changes ranging from enhancing the promotion of diverse content to trying to clarify the CRTC's authority as it pertains to user-generated content to exclude social media users.

Any time the Senate changes a government bill, the revisions have to be sent back to the House of Commons to consider. This happened in February, and in early March, Rodriguez issued his response.

In a motion, the minister said the Liberals would be accepting the majority of legislative adjustments, while turning down the more consequential changes and suggesting further tweaks to others.

Among the changes rejected were the attempt from senators to impose age-verification methods on certain content, and an effort to instill further protections for user-generated content.

As for what changes the House was willing to accept, the Liberals backed efforts from the Senate to ensure platforms are mindful of promoting and reflecting diversity, including Indigenous languages, and enhancing privacy protections.

After days of at times heated debate, and a failed effort by the Conservatives to "kill Bill C-11" by moving to see the legislation withdrawn entirely, the NDP and Bloc Quebecois sided with the Liberals to pass the motion accepting certain Senate changes.

The government's message indicating as much was sent to the Senate on March 30.

Stakeholder reaction to what amendments held was mixed, with groups including internet advocacy organization OpenMedia campaigning for the Senate to reject the House's decision and insist on stronger protections to ensure user content is safe from regulations.

"Without this amendment, we’re relying on the good behaviour of the CRTC and the minister of Canadian heritage to leave our content alone – today, and under every future minister and commissioner," said OpenMedia campaigns director Matt Hatfield in a statement. "Even a good policy direction from minister Rodriguez that puts on a few guardrails will not fix that; it just pushes the risk down the road."

On April 17, Government Representative in the Senate, Sen. Marc Gold, presented a motion that would see the Senate accept the version of Bill C-11 that the House of Commons signed off on. 

From there, the upper chamber quickly became mired in a largely procedural battle over the propriety of debate time being cut off and whether to assert itself and insist its amendments.

Speaking to the bill during what became several days of deliberation, member of the Progressive Senate Group Sen. Andrew Cardozo called the process surrounding Bill C-11 "a textbook case of how our bicameral system works," while suggesting that the way this legislation has been handled may be a forbearer for future policymaking.

"It is also a textbook case because of the high political drama it has encountered, replete with many delay tactics and fundraising off the process," said Cardozo. "But it is still an interesting case where we have seen a massive online campaign over the last few months. This is either an exception to the norm of constructive policy-making or, in fact, the 'new normal' that will eliminate constructive policy-making in favour of divisive, partisan and extra-parliamentary campaigns."

A key sticking point that was raised in the numerous hours of debate held ahead of the bill finally clearing the upper chamber, was the Senate's attempt to instill further protections for user-generated content in Bill C-11.

Had the Senate insisted on its amendments, the legislation would have ping-ponged back to MPs for another round of consideration, or a joint conference between the House and Senate could have been called, allowing both chambers to try to hash out a compromise.

Instead, after moving through a series of votes and a few late nights, on April 27, the Senate passed a message informing the House that it would not be insisting on any further changes, while acknowledging the Liberals' "public assurance" is that Bill C-11 "will not apply to user-generated digital content."

WHAT COMES NEXT?

Now that Bill C-11 has passed, regulatory work can begin.

The next step will be for the CRTC to get to work on consultations and drafting the policy framework for how the broadcasting and communications regulator will utilize the new powers Bill C-11 grants.

This process is expected to include public consultations, and will take place in the shadow of warnings from the Americans that trade action could be ahead if how Bill C-11 is implemented adversely affects cross-border suppliers of online content.

It's expected that this will be where stakeholders with outstanding concerns about the bill turn next, though it remains to be seen what the timeline will be for the coming changes to come into effect.

Already, the Conservatives have vowed to repeal Bill C-11 should the party win the next federal election. 

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