Six C-11 amendments the Senate must pass.

November 21, 2022

The Senate Transportation and Communications committee is set to debate amendments to Bill C-11 at Wednesday evening’s session.

Unelected Senators are expected to be the chamber of sober second thought but not the gallery of second guessers. 

After all, the Online Streaming Act was studied by the Commons Heritage Committee for twelve days before being approved in a blur of amendments on June 14th. The Bill was a reboot of the previous Parliament’s thoroughly debated Bill C-10 and subsequently placed before Canadian voters in the federal Liberals’ 2021 election platform.

But grâce à the Conservatives’ avowal to indefinitely filibuster C-11 in the Heritage Committee, the other parties representing a majority of MPs and voters set a June 14th deadline. That resulted in 42 amendments rushed through the Heritage Committee in a mere twelve hours; some for better, some for worse and some left on the table.

That ugly Parliamentary episode is why it’s legitimate for Senators to aggressively amend the Bill and offer the Minister and the House an opportunity to pass a better one.

Without knowing whether a back channelled discussion of amendments between Senators and Heritage Minister Pablo Rodriguez has occurred, MediaPolicy.ca hereby tenders some gratuitous advice on a better C-11:

Parliamentarians, Do No Harm.

There are provisions in C-11 that are a step backwards for Canada’s broadcasting policy and fixing them deserves non-partisan support.

1. Repeal section 7(7). This dangerous power grab on behalf of federal cabinet to micromanage almost anything under the Act that is normally the responsibility of the arm’s length CRTC has got to go. There is no acceptable version of it. MediaPolicy.ca explained why, here, as did broadcasting experts Robert Armstrong and Monica Auer.

2. Update the public’s right under section 28(1) to appeal to federal cabinet any Commission “orders” to the newly created class of (mostly foreign) online undertakings that play the same role as licence conditions for (mostly Canadian) conventional broadcasting. Appeals to federal cabinet are an important safety valve in the event of egregious policy errors by the Commission. Some might advocate for either a broader or narrower right of appeal to cabinet but including “orders” under section 28(1) simply maintains the status quo in the Internet era.

3. Defend Canada’s cultural sovereignty. The CRTC routinely enforces fair treatment of Canadian programming services by cable companies. That includes a short list of “section 9(1)(h)” public interest channels the Commission deems “must carry” at a fixed compensation rate. The House Bill fails to make these Commission powers binding on foreign online undertakings like Roku, Pluto TV or any number of content aggregators, apparently reflecting Heritage Canada’s fear of an American trade complaint. Do it anyway.

4. In the same vein, repudiate the two-tier favourtism shown to Hollywood studios to use less Canadian talent and production workers than expected of Canadian filmmakers and domestic media companies. Heritage Canada never explained why foreign companies deserve special treatment under a revised section 3(1)(f) but the House Bill certainly gives a new twist to the phrase “most favoured nation status.” And it’s not Canada.

5. Repeal the anti-worker, Hollywood-appeasing section 31.1 which exempts Canadian actors, writers and directors working for online undertakings from the federal Status of the Artist Act and invites American studios to make movies in Canada, draw from our hefty film production tax credits, and operate non-union. It’s hard to understand how federal Liberals would want to be within a thousand miles of this odious provision (it was introduced last minute by the Liberals in the chaos of June 14th as a sop to foreign streamers ).

6. Save local news. This ought to be an easy one. The Unifor amendment strengthens the Commission’s authority to order better financing for local newsgathering, flowing from broadcasting distribution undertakings (e.g. cable companies) to broadcasters. After all, the House Bill removed $120 million in annual “Part II fees” that big Canadian media companies have been paying into the federal treasury, so they can afford it. The Unifor amendment also modernizes the Commission’s authority by including “online undertakings” as the source of news funding when inevitably it will be necessary.

Send a message.

One can’t discuss amendments to C-11 without acknowledging the campaign by Google, Digital First Canada and the Conservative Party to remove provisions in C-11 regulating uploaded videos and music on social media platforms.

In fact their campaign demands a roll back of the Commission’s broadcasting jurisdiction by permanently removing American hosting platforms from Canadian regulation.

The campaign has a libertarian inspiration that clashes with the policy objectives of the Act, but it has been fueled by YouTubers’ visceral fears of regulatory overreach once the Bill has passed. It doesn’t help that the Minister elected not to publish a draft policy directive that might have given the CRTC clear instructions to exempt programs made by small scale content creators and ensure that “discoverability” measures don’t backfire.

But the Liberals, Bloc and NDP don’t share those fears of overreach so the most the Senate can do, if so inclined, is to send a message to the Minister for the Policy Directive he says he will publish after Royal Assent.

That message might be expressed as regulatory exemptions tied to revenue thresholds applied to either the platforms’ and/or creators’ businesses. Another message might express regulation of recommendation algorithms as an exceptional measure.

Don’t hold your breath.

The House Bill includes an elevated process of public consultation over broadcasting policy affecting Official Minority Language Communities in a manner that seems more geared to an expression of respect for those communities than practical necessity.

However an amendment will likely go nowhere. 

And so.

Perhaps an unnecessary last word to Senators: debate but don’t delay this Bill.

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