May 23, 2022
Critics of Bill C-11 insist Bill C-11 empowers the CRTC to “regulate” social media posts, otherwise known as User Generated Content (UGC).
The reverse is probably true depending on what is meant by “regulate.”
The current Act confers upon the CRTC regulatory jurisdiction over all broadcasting platforms but the Commission has never used it for the Internet. Heritage Minister Pablo Rodriquez’s Online Streaming Act diminishes that jurisdiction over the Internet and specifically takes it away with respect to the content supervision of audio-visual uploads to hosting platforms like YouTube or TikTok.
Before I get to how the critics have it upside down on UGC, a word about the word “regulate.”
“Regulate” means more than one thing under the Broadcasting Act: the big one is how much Canadian media companies have to spend on making Canadian news, sports and entertainment.
“Regulate” also includes how often Canadian content must be shown on linear television and how much must be promoted (made “discoverable”) in the on-demand platforms of cable TV and the Internet.
Lastly “regulate” can also include the supervision of broadcasting content, something that the CRTC rarely does (more on that below).
Every broadcasting nerd knows the CRTC possesses the unlimited authority to regulate “broadcasting” over the Internet the same as television and radio because of section 2(1) of the Act:
broadcasting means any transmission of programs, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus,
However the Commission exempted the Internet platform in 1999 and since then and its regulatory authority has remained dormant.
Bill C-11 wakes up that regulatory authority over Internet broadcasting, but narrows it at the same time.
Section 2.1 of Bill C-11 says social media uploaders are never regulated under the Act, for anything: no rights, no obligations, no liabilities.
Section 2.3 of the Bill says that Internet platforms hosting UGC can be regulated but only in respect to “programming” (uploads) that is monetized or commercial. That means YouTube will be regulated for UGC posted by Rogers Sportsnet, but not UGC that is amateur, educational, or citizen opinion.
In the months following Royal Assent of C-11, the CRTC will draw the line between “commercial” and amateur (we will see if the Minister gives them specific instructions in a Policy Directive, he has promised to do so at some point in the future).
Regardless of where the line is drawn, “regulation” will focus on the financing, creation and promotion of Canadian videos, but almost certainly not the supervision of the content.
How do we know that?
For decades the CRTC has shown little appetite for supervising content (more on that below) but C-11 appears to rule it out with respect to UGC by amending section 3(1)g of the Act:
Lets unpack that, because it’s a little complicated.
For decades the CRTC has supervised content through a series of policies governing abusive content, misinformation, discriminatory on-air stereotypes, consumption of alcohol, violence, and children’s viewing.
In almost every case, the CRTC outsources its enforcement of those policies to industry bodies such as the Canadian Association of Broadcasters or Advertising Standards Canada. In one exceptional case in 2004 documented at length in Robert Armstrong’s Broadcasting Policy in Canada the CRTC revoked the license of the unrepentant shock jock radio station CHOI-FM and did so again more recently in the case of the Russian propaganda outlet, RT Television.
Crucially the CRTC’s legal authority to develop and enforce those policies in the first place is based on getting through the door of section 3(1)g and (h) of the Act which provide that “programming must be of a high standard.”
Bill C-11 appears to shut that door by exempting UGC Internet posts through two amendments, the first inserting a requirement into section 3(1)(g) and (h) for “programming control” of content before it is subjected to the “high standard” test:
(g) the programming broadcasting l should be of high standard;
(h) all persons who carry on broadcasting undertakings have a responsibility for the programs that they broadcast ;
Having established “control” as a condition of content supervision, section 2.2 of C-11 deems UGC not to be within the control of hosting platforms.
(2.2) An online undertaking that provides a social media service does not, for the purposes of this Act, exercise programming control over programs uploaded by a user of the service who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them.
As UGC is deemed not “within the control” of the hosting platforms, that means that the CRTC appears to be about to lose its authority under the Broadcasting Act to do anything about sexist, racist, or conspiracy-based misinformation posted as UGC. That responsibility may fall to the CRTC or some other federal body under the yet-to-be-tabled Online Harms Bill, but at this point it’s speculation.
There remains the regulatory issue of discoverability, which has been raised by cyberlibertarians Michael Geist and Open Media, as well as the new lobby group Digital First Creators.
Those C-11 critics say regulatory obligations on YouTube to recommend posts by Canadian creators will backfire by pushing their content to disinterested Canadian viewers, exposing their posts to the risk of poor ratings through an underwhelming response of thumbs-up.
It’s a contentious point given that recommendation algorithms excel at matching content to individual consumption preferences.
Nevertheless the government has reacted to these voices by committing in the House of Commons to exclude any programming created by Canadian “digital first” artists from the hosting platforms’ regulatory obligations to fund, create and promote Canadian programs.
What that exclusion looks like, and whether it will help or hurt Canadian YouTube uploaders, remains a mystery for now. It would help to see the Minister’s Policy Directive to the CRTC.