Senators Begin Amending Proposed Online Streaming Act Aimed at Regulating the Internet

Bill C-11 called a ‘power grab over human communication’ by a former CRTC commissioner

Minister of Canadian Heritage Pablo Rodriguez prepares to appear before the Standing Senate Committee on Transport and Communications at a hearing on Bill C-11, in the Senate of Canada building in Ottawa on Nov. 22, 2022. The Canadian Press/Justin Tang

A Senate committee is rewriting Bill C-11, the Online Streaming Act proposed by Prime Minister Justin Trudeau’s government, after it passed third reading in the House of Commons in June. The Senate has been petitioned by multiple large corporations to amend the bill, including YouTube, Apple Music, and Spotify.

The Standing Senate Committee on Transport and Communications has put forward 100 different amendments to the bill, which aims to update the Broadcasting Act for today’s digital environment.

The government has promoted the bill as a way to make Canadian content more prominent and to prioritize Canadians’ needs and interests, saying that the last major reform of the Broadcasting Act was in 1991, before the rise of online streaming services.

The bill gives the Canadian Radio-television and Telecommunications Commission (CRTC) regulatory powers over online streaming platforms, but critics say it can potentially apply to individual Canadians and user-generated content.

The bill has come under fierce criticism for giving virtually unlimited regulatory powers to the CRTC.

“Justin Trudeau’s government is seizing control of the internet and granting itself sweeping new powers that turn its communications regulator into a political puppet,” said Peter Menzies, a former vice-chair of the CRTC.

Menzies called the bill a threat to free speech and speech censorship, with sections that make future CRTC decisions “political fiats dictated by prime ministerial minions.”

He cited Len St-Aubin, a former director general of telecommunications policy with the federal government, as saying that the bill’s current wording allows cabinet to issue directions to the CRTC about almost everything it does.

St-Aubin was a member of the policy teams that developed both the Broadcasting Act and the Telecommunications Act.

“For Canadians, that opens the door to state-controlled media,” St-Aubin had told Menzies.

“Broadcasting regulation has always walked a fine line when it comes to freedom of expression. C-11 crosses the line,” St-Aubin said.

The Senate transport and communications committee has heard from dozens of experts and stakeholders from both the private sector and the government and is now undertaking a clause-by-clause consideration of the bill, an effort that began Nov. 23. Senators can amend the bill if a vote for a change passes during their meetings.

The bill was first introduced in the fall of 2020 as Bill C-10. Then in the spring of 2021, the government removed an exemption for user-generated content, thereby making all online posts fall under CRTC authority. The Senate refused to move the legislation through at the time, and it died when the 2021 federal election was called.

If the new version, C-11, is passed, it will permit the CRTC to regulate “commercial” internet programming, like YouTube videos. However, the term “commercial” is not defined.

‘Overreach’

The Canadian chapter of the Internet Society (ISCC) called the bill federal over-reach.

In a May 31 submission to the Senate Standing Committee on Canadian Heritage, which was studying the proposed Bill C-11, the ISCC said “C-11 is based on the tragic illusion that all audio and audio-visual content on the Internet is a program, and that any person who transmits a program on the Internet is a broadcaster rather than a communicator.”

The organization said it was “fundamentally opposed to the regulation of the Internet as broadcasting,” saying that this was “neither possible nor beneficial.”

“Internet streaming services are simply not broadcasting. A level playing field between over-the-air broadcasters and online streaming services is illusory,” it said.

At a Sept. 14 hearing of the Senate transport and communications committee, ISCC Canadian chapter chair Timothy Denton, a former CRTC commissioner, said the bill was “a general power grab over human communication across the internet” and “captures virtually all online audio and video.”

The logos of mobile apps Instagram, Snapchat, Twitter, Facebook, Google, and Messenger displayed on a tablet on Oct. 1, 2019. AFP via Getty Images/Denis Charlet

However, federal Heritage Minister Pablo Rodriguez says the legislation will not cover user-generated content.

“The bill is quite simple. It is about platforms, it is not about users,” he said.

Rodriguez suggests that the bill is to protect Canadian culture and meet the needs of minority-language viewers.

In response to questioning by senators Donna Dasko and Pamela Wallin at a Senate transport and communications committee hearing on Nov. 16, CRTC chairman and CEO Ian Scott later submitted a written response stating that one subsection of the bill could be interpreted to give cabinet “the ability to intervene in the minutiae of the CRTC’s work,” and recommended that the subsection, 7(7), be deleted.

Senator Denise Batters, another committee member, says “there are numerous sources of uncertainty related to this bill,” according to Blacklock’s Reporter. “Some of them are fundamental,” she added.

‘Takeover of the Internet’

“Bill C-11 declares all audiovisual and audio content on the internet to be broadcasts,” Denton said at the Sept. 14 Senate committee hearing . “It’s a kind of reverse takeover of the internet. The tiny Canadian broadcasting system can take on the world of the internet by the mere trick of redefining ‘broadcasting.’ C-11 is that bold and that absurd.”

Denton said the internet does not need regulatory treatment.

Matt Hatfield of internet advocacy group OpenMedia says that “Bill C-11 may not be intended to be a user-censorship bill, but unless you fix it, with the wrong government appointing the wrong CRTC, it could easily become one,” the National Post reported.

Lawyer Vivek Krishnamurthy, director of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, told the Senate committee at its Oct. 18 hearing that the bill is poorly worded.

“There’s nothing that prevents the CRTC from imposing regulations on the full stack of online audiovisual content distribution,” he said.

“We need to specify in the law exactly how things apply and not leave it to the discretion of a regulatory agency. That’s especially important because Canada is not immune to the whims of populist authoritarianism that are howling around the world.”

The Canadian Press contributed to this report.