C11 TV’s Bread and Circuses: political theatre is distracting us from important stuff

Digital First Canada ED Scott Benzie appeared before the Senate Transportation and Communications Committee on September 28th

September 29, 2022

Last year the federal Liberals assigned Ontario MP Chris Bittle as Parliamentary Secretary to the Heritage Minister to neutralize Conservative MP Rachael Thomas’ disruptive tactics in Committee. 

It worked to an extent. But like Thomas, the combative courtroom lawyer Bittle has no off-switch. 

Last month he engaged in a Twitter spat with Michael Geist over the government’s complicity in hiring Laith Marouf as an anti-racism consultant despite Marouf’s anti-semitic and racist Twitter activity. One of Bittle’s Tweets implied Geist was a racist (of course he’s absolutely not) for criticizing Diversity Minister Ahmed Hussen: Bittle apologized but not before having embarrassed himself.

This week the Globe reported that Bittle and another Liberal MP have filed a complaint with the Lobby Commissioner alleging that Scott Benzie, Executive Director of Digital First Canada (DFC) may have violated federal laws regarding disclosure of his organization’s financial backer, YouTube.

Both DFC and YouTube oppose Bill C-11’s provisions regarding user generated content and online discoverability of Canadian content. 

Bittle first made the accusation public during Heritage Committee hearings last June and the important details are as yet unclear: Benzie may have been non-compliant in registering DFC’s connection to YouTube while lobbying MPs. 

Having made his valid but limited point about DFC’s relationship with YouTube in June, Bittle still filed a formal complaint. Perhaps it was to hold the truculent representatives from YouTube Canada accountable. Benzie and the Conservatives call it witness intimidation. 

The bottom line is that this week this tempest in a teapot is getting more attention than the Bill itself.

***

That wasn’t the only political theatre around C-11 this week. The other was the Senate’s near-exclusive focus on discoverability and the impact on algorithms that drive traffic on hosting platforms TikTok and YouTube.

The Senate is recycling most of the witnesses who already presented on C-11 to the Heritage Committee in June.

The latest slogan from critics is that the CRTC will be “picking winners and losers” among competing YouTube videos if discoverability provisions go forward.

No one explains how of course.

When you keyword search a topic in YouTube you get numerous but limited recommendations ranked in order of responsiveness to the inquiry (or at least we assume so in the absence of YouTube being more transparent about its algorithm). 

If YouTube was to tweak its algorithm to spotlight or rank higher any Canadian videos available on the topic—the Bill says it’s up to them how they do it— you may see a little Canadian flag beside one of the videos in the top recommendations, assuming the YouTubers’ video file metadata has been entered accurately and the algorithm is intelligently programmed. 

The CRTC would have to decide if the Canadian flag on a recommendation that is otherwise responsive to the inquiry is enough to meet discoverability requirements, or whether Canadian videos actually get pushed up a notch or two.

Yes, it’s possible in this scenario that the bottom ranked video gets booted off the list of recommendations or, as Internet Society VP Konrad von Finckenstein suggested, the list simply gets longer.

The Internet will remain unbroken.

Critics did raise a couple of troubling points to be considered. The first is that YouTube might just mess it all up and alienate audiences who might blame individual YouTubers.

Another is that other countries (especially the U.S.) might respond with matching preferences for their own YouTubers and our Canadian creators will be net losers. 

The latter point is worth the CRTC studying in depth before taking any action on discoverability. The Commission may well end up making limited use of its new powers and/or granting exemptions to YouTubers who are not conventional broadcasters.

***

I have buried the lede about important stuff by giving so much attention to C-11 TV’s bread and circuses. 

At Tuesday’s Senate hearing you could visibly observe Senators pick up on the in-depth expertise being offered to them by witness Monica Auer who is Executive Director of the Forum On Research and Policy in Communications, specializing in CRTC regulatory issues.

Auer has spotlighted a serious threat in C-11 to the Commission’s independence from government.

Section 7(7) of the Bill amends the Act’s long standing provisions that permit the government of the day to issue broad policy directives to the Commission. 

For example in 2013 the Harper government directed the Commission to expand consumer choice in television, including the option for subscribers to buy channels on the stand-alone basis of “pick and pay.” The Commission went on to issue a very lengthy and detailed ruling on that as part of its “Let’s Talk TV” review of broadcasting policy in 2015. 

That ruling followed a year of public consultation, detailed evidence, and thoughtful contemplation by Commissioners with far more non-partisan expertise than their government masters.

But section 7(7) in C-11 would allow the government to write detailed regulatory outcomes into the policy direction itself ——more than likely penned by a political staffer in the office of the Heritage Minister of the day——and direct the Commission to rubber stamp them. 

This section 7(7) power arrogated to the federal government would apply not only to regulatory matters (like pick and pay) but to the “orders” that will become the de facto licences for online undertakings like Netflix, Disney Plus, or Bell Crave. 

As “licensed” linear broadcasting platforms are displaced by “ordered” online undertakings, the federal cabinet will accrue the power to dictate the minutia of individual broadcasters’ terms of operations.

Here are the provisions in the Bill, both the expanded cabinet powers and the Commission responsibilities they can be substituted for, including the definition of Canadian content:

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7 (1) Subject to subsection (2) and section 8, the Governor in Council may, by order, issue to the Commission directions of general application on broad policy matters with respect to

(a) any of the objectives of the broadcasting policy set out in subsection 3(1); or

(b) any of the objectives of the regulatory policy set out in subsection 5(2).

(7) For greater certainty, an order may be made under subsection (1) with respect to orders made under subsection 9.‍1(1) or 11.‍1(2) or regulations made under subsection 10(1) or 11.‍1(1).

Conditions

9.‍1 (1) The Commission may, in furtherance of its objects, make orders imposing conditions on the carrying on of broadcasting undertakings that the Commission considers appropriate for the implementation of the broadcasting policy set out in subsection 3(1), including conditions respecting

(a) the proportion of programs to be broadcast that shall be Canadian programs and the proportion of time that shall be devoted to the broadcasting of Canadian programs;

(b) the proportion of Canadian programs to be broadcast that shall be original French language programs, including first-run programs;

(c) the proportion of programs to be broadcast that shall be original French language programs;

(d) the proportion of programs to be broadcast that shall be devoted to specific genres, in order to ensure the diversity of programming;

(e) the presentation of programs and programming services for selection by the public, including the showcasing and the discoverability of Canadian programs and programming services, such as original French language programs;

(f) a requirement for a person carrying on a broadcasting undertaking, other than an online undertaking, to obtain the approval of the Commission before entering into any contract with a telecommunications common carrier, as defined in the Telecommunications Act, for the distribution of programming directly to the public;

(g) a requirement for a person carrying on a distribution undertaking to give priority to the carriage of broadcasting;

(h) a requirement for a person carrying on a distribution undertaking to carry, on the terms and conditions that the Commission considers appropriate, programming services, specified by the Commission, that are provided by a broadcasting undertaking;

(i) a requirement, without terms or conditions, for a person carrying on an online undertaking that provides the programming services of other broadcasting undertakings in a manner that is similar to a distribution undertaking to carry programming services, specified by the Commission, that are provided by a broadcasting undertaking;

(j) terms and conditions of service in contracts between distribution undertakings and their subscribers;

(k) access by persons with disabilities to programming, including the identification, prevention and removal of barriers to such access;

(l) the carriage of emergency messages;

(m) any change in the ownership or control of a broadcasting undertaking that is required to be carried on under a licence;

(n) the provision to the Commission, by licensees or persons exempt from the requirement to hold a licence under an order made under subsection 9(4), of information related to

(i) the ownership, governance and control of those licensees or exempt persons, and

(ii) the affiliation of those licensees or exempt persons with any affiliates carrying on broadcasting undertakings;

(o) the provision to the Commission, by persons carrying on broadcasting undertakings, of any other information that the Commission considers necessary for the administration of this Act, including

(i) financial or commercial information,

(ii) information related to programming,

(iii) information related to expenditures made under section 11.‍1, and

(iv) information related to audience measurement, other than information that could identify any individual audience member; and

(p) continued ownership and control by Canadians of Canadian broadcasting undertakings.

Regulations generally

10 (1) The Commission may, in furtherance of its objects, make regulations…

(b) prescribing what constitutes a Canadian program for the purposes of this Act;

Regulations — Canadian programs

(1.‍1) In making regulations under paragraph (1)‍(b), the Commission shall consider the following matters:

(a) whether Canadian producers, including independent producers, have a right or interest in relation to a program, including copyright or any other right or interest, that allows them to control and benefit in a fair and equitable manner from the exploitation of the program;

(b) whether key creative positions in the production of a program are primarily held by Canadians;

(c) whether a program furthers Canadian artistic and cultural expression;

(d) the extent to which persons carrying on online undertakings or programming undertakings collaborate with independent Canadian producers, with persons carrying on Canadian broadcasting undertakings producing their own programs, with producers associated with Canadian broadcasting undertakings or with any other person involved in the Canadian program production industry, including Canadian owners of copyright in musical works or in sound recordings made in Canada; and

(e) any other matter that may be prescribed by regulation.

Regulations — expenditures

11.‍1 (1) The Commission may make regulations respecting expenditures to be made by persons carrying on broadcasting undertakings for the purposes of

(a) developing, financing, producing or promoting Canadian audio or audio-visual programs, including independent productions, for broadcasting by broadcasting undertakings;

(b) supporting, promoting or training Canadian creators of audio or audio-visual programs for broadcasting by broadcasting undertakings; or

(c) supporting participation by persons, groups of persons or organizations representing the public interest in proceedings before the Commission under this Act.

Order — particular broadcasting undertaking

(2) The Commission may make an order respecting expenditures to be made by a particular person carrying on a broadcasting undertaking for any of the purposes set out in paragraphs (1)‍(a) to (c).

Published by

Howard Law

I am retired staff of Unifor, the union representing 300,000 Canadians in twenty different sectors of the economy, including 10,000 journalists and media workers. As the former Director of the Media Sector and as an unapologetic cultural nationalist, I have an abiding passion for public policy in Canadian media.

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