C-11 Update: Senate returns the Online Streaming Act to the House for final rewrite

February 3, 2023

Media coverage and Twitter commentary on Bill C-11 is cresting again after Third Reading in the full Senate approved the Transportation and Communications Committee’s twenty-six amendments.

Here’s a summary of what’s happened and what to expect next on the Bill:

• The Senate approved all of the committee’s amendments, in particular the elimination of Canadian content regulation of user uploaded content (except content posted on those hosting platforms by conventional broadcasters or music labels).

• The Conservative Party amendments rejected in the Senate Committee were also voted down in Third Reading. The key amendment would have eliminated any CRTC obligations on Internet streamers or hosting platforms to promote Canadian content.

• The US trade association CCIA representing Google/YouTube, Facebook, Amazon and Apple issued a high profile request to the Biden Administration to pressure Canada on Bills C-11 and C-18, including any Canadian content provisions.

• Industry spokespersons from the Canadian Media Producers’ Association (CMPA), ACTRA, and the Writer’s Guild condemned the Bill’s inclusion of section 3(1)(f.1) that allows Netflix and Disney to meet their new Canadian content obligations by making CanCon shows with less Canadian talent and crews than required of Canadian media companies. Similar criticism came from the Québec-based Coalition of the Diversity of Cultural Expressions.

• Speaking to delegates to the CMPA’s annual meeting, Heritage Minister Pablo Rodriguez dodged most questions posed by CTV’s Vassy Kapelos but did state (1) he would accept some but not all of the Senate amendments, (2) he hoped to have the government’s tweaked version of C-11 back in the House of Commons next week (!!) and (3) he was confident the Bill was compliant with Canada’s trade treaty obligations. He appeared to discourage any expectation of amendments to section 3(1)(f.1).

• The Senate is constitutionally permitted to play amendment table tennis with the House for an indeterminate period of time.

On the far side of the world, the Australian government announced its intention to pass a slimmer version of Canada’s C-11 by July 2024. Labour’s Arts Minister Tony Burke described a video streaming bill with the main feature being an Australian programming expenditure requirement akin to the CRTC’s Canadian Programming Expenditure conditions for conventional broadcasters.

Media reports speculated that the expenditure requirements for Netflix and Disney would be similar to those of Australia-owned broadcasters and cable operators, at twenty per cent of programming expenditures.

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