Co-authored by Allison Sibthorpe (Articling Student)
On November 3, 2020, the Government of Canada introduced Bill C-10, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts (Bill). The Bill was introduced with the goal of updating the Broadcasting Act (Act), given changes to broadcasting brought forth by digital over-the-top distribution. If passed, the Bill will broaden the scope of the Act and require digital media broadcasters to contribute to Canada's broadcasting system with a view to supporting Canadian content producers and creators.
Currently, the Act outlines Canada's broadcasting policy, defines the role of the Canadian Radio-television and Telecommunications Commission (CRTC) as the regulator of the Canadian broadcasting system, and sets out the mandate for the Canadian Broadcasting Corporation. Since its implementation, the Act has played a fundamental role in ensuring the development and accessibility of Canadian content.
Despite the key role the Act plays in regulating Canadian broadcasting, there have been no significant reforms to the Act since 1991. Bill C-10 seeks to modernize the Act and address 30 years' worth of changes to the Canadian broadcasting landscape. The Bill is, in part, the government's response to a report published in January 2020 by the Broadcasting and Telecommunications Legislative Review Panel, which was appointed a few years ago to review the key pieces of legislation that govern Canada's communications sector. The report listed 97 recommendations based on the objectives of supporting the creation, production and discoverability of Canadian content and improving the rights of the digital consumer, amongst other things.
The following overview sets out the key provisions of Bill C-10, which would most significantly impact the Canadian broadcasting system if passed into law.
Currently, Internet and online service providers are in large part exempt from broadcast licensing and regulation due to a conscious policy decision by the CRTC not to apply its regulatory framework to these undertakings. Based on the Act's proposed amendments and comments made by officials surrounding the release of Bill C-10, the government has now confirmed its intention to actively regulate online broadcasting activities.
In particular, the Bill clarifies that online broadcasters fall within the scope of the broadcasting regulatory system by creating a new category of broadcasting undertaking referred to as "online undertakings". An online undertaking is defined as "an undertaking for the transmission or retransmission of programs over the internet for reception by the public by means of broadcasting receiving apparatus". Online undertakings would be regulated by the Act regardless of whether they are carried on in whole or in part within Canada. The Bill ensures that the Act would not apply to users of social media services, or social media services themselves for content posted by their users.
While the inclusion of online undertakings within the text of the Act will constitute an important shift in Canadian broadcasting policy, the details surrounding the regulatory framework that will apply to such undertakings remains unclear. The Government of Canada has signalled that once the Bill becomes law, it will issue a policy direction to the CRTC and require the regulator to hold consultations and hearings to work out the details of the framework over a period of approximately nine months. As such, it remains unclear what conditions and requirements the CRTC will impose on online undertakings and to what extent these will be similar to those applicable to traditional broadcasting undertakings.
FINANCIAL CONTRIBUTIONS BY BROADCASTERS AND ONLINE UNDERTAKINGS
Under the proposed amendments, the CRTC would have the power to require that persons carrying on broadcasting undertakings make expenditures to support the Canadian broadcasting system.
Specifically, the CRTC would have new powers to require broadcasters, distributors and online undertakings to make expenditures related to:
- Developing, financing, producing or promoting Canadian content
- Supporting, promoting or training Canadian creators of audio or audio-visual programs
- Supporting public interest participants in CRTC proceedings
According to a government news release, the Bill could result in online broadcasters being required to invest more than C$800-million in Canadian creators, music and stories by 2023.
UPDATE TO CANADA'S BROADCASTING AND REGULATORY POLICY
The Bill would also update Canadian broadcasting policy by, among other things, providing that the Canadian broadcasting system should serve the needs and interests of all Canadians, including Canadians from racialized communities and Canadians of diverse ethnocultural backgrounds. Emphasis is placed on Indigenous programing, as the Bill specifies that the Canadian broadcasting system should provide:
- Opportunities for Indigenous persons
- Programming that reflects Indigenous cultures and that is in Indigenous languages
The Bill also provides that the Canadian broadcasting system should include programming that is accessible without barriers to persons with disabilities.
NEW CRTC POWERS
The Bill allows the CRTC to impose administrative monetary penalties (AMPs) for violations of certain provisions of the Act, such as:
- Contraventions of regulations or orders made under the Act
- Broadcasting when prohibited from doing so
- Failing to submit information in accordance with a notice from the CRTC
The Bill specifies that the goal of the AMPs is to promote compliance rather than punish.
OVERSIGHT OF THE CANADIAN BROADCASTING LANDSCAPE
The Bill would generally increase the CRTC's oversight of the Canadian Broadcasting landscape by:
- Empowering the CRTC to make orders imposing conditions on the carrying on of broadcasting undertakings
- Providing the CRTC with more information gathering powers
- Amending the procedure by which the governor-in-council may set aside a decision of the CRTC to issue, amend or renew a licence or refer such a decision back to the CRTC for reconsideration and hearing
WHAT TO EXPECT
The government expects that once implemented, the Bill will create more opportunities for Canadian content producers, result in a broadcasting system that is more reflective of Canadian society and produce a more equitable and flexible regulatory framework.
The proposed amendments are still in the early stages of development. While the Bill has undergone a first reading in Parliament, it must still pass through a second and third reading as well as committee review before receiving royal assent and passing into law.
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