The never ending ambiguity of the Online Streaming Act

April 28, 2023

Last night the Governor-General conferred Royal Assent upon the Online Streaming Act minutes after the Senate approved it and so public commentary on the Bill has crested in mainstream and social media. Mind you, commentary has been cresting for some time now. And given that we are expecting a cabinet Policy Directive to the CRTC to begin implementation hearings, the wave will roll on for some months yet.

Media coverage —including the Globe and Mail‘s excellent summary— has identified the fuel source for the never-ending flame of controversy.

It’s ‘ambiguity,’ ambiguity about the detailed outcome of whatever discoverability measures the CRTC will take with respect to algorithm-driven recommendations of Canadian content on social media platforms, i.e. YouTube and TikTok.

Specifically which Canadian ‘user-generated’ programs will be included or exempted from the scheme to push Canadian programs to Canadian viewers and listeners on those platforms?

It’s the uncertainty that’s making everyone mad, and I don’t mean ‘angry’ mad either.

For two years now, the opponents of Bill C-11 have been filling the void of uncertainty with worst-case scenarios. The Conservatives have injected a conspiracy theory: that the CRTC will impose pro-government ranking priorities on YouTube and flood the zone with Liberal propaganda.

Even journalists get carried away. Veteran (and Canadian) reporter Paul Vieira told his American audience in the Wall Street Journal yesterday that under Bill C-11 ‘if a person in Canada searched on YouTube, the results would display videos mostly from Canadian artists ahead of foreign or U.S.-made content.’

Mostly?

Ahead of foreign or US-made content?

There is no evidence that will be the outcome. The Heritage Minister Pablo Rodriguez has never suggested it.

On the other hand the Minister insists on repeating the nostrum that ‘platforms are in, users are out.’ That means citizen uploaders won’t be regulated as broadcasters and be required to make ‘Canadian’ videos. But the recommendation ranking of a YouTubers’ video might be regulated. We’ll have to see what the arm’s length regulator CRTC decides and whether it impacts Canadian YouTubers. That’s a lot of ambiguity to live with.

We are probably looking at a high and low water mark for CRTC outcomes.

On one hand, former CRTC chair Ian Scott opined to the Heritage Committee last year that social media platforms could satisfy demands for promoting Canadian content without ever touching their recommendation algorithms.

At the other end of the spectrum of outcomes, representatives of the music industry in Québec want a dramatic increase in the rock-bottom consumption of French-language songs on Spotify and YouTube. That seems difficult to achieve without a major tweak to recommendation algorithms for IP addresses in Québec and minority language communities.

Here are some comforting thoughts.

First, the blank canvass of unknown regulatory outcomes will get filled in fairly quickly. The CRTC may set some parameters in its Notice of Consultation for public hearings. Also, when participants in the CRTC’s public hearings file their initial representations, the focus may narrow further.

Second, the legislation gives the CRTC the authority to make YouTube tweak its algorithms in order to get quantifiable results on promoting Canadian programs. But the legislation denies the CRTC the authority to dictate any particular change to algorithms. That leaves the algorithm design in the hands of the platforms.

Third, the CRTC may choose not to pursue a ‘one-size fits all’ policy on discoverability. There may be more intrusive expectations for French language music and none at all for news commentary or home renovation videos.

Expect the CRTC to make generous use of its well-used exemption authority to leave the vast majority of citizen and solo artist videos untouched for the foreseeable future.

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