Nothing is simple in C-11. Welcome to stealth deregulation.

June 22, 2023

When the CRTC issued notices of public consultation for the implementation of Bill C-11 in three different files, it packed the big money issues into file ‘2023-138.’ That’s where it will fix a basic financial contribution for all online undertakings, equitable to those already made by licensed broadcasters.

For policy nerds and regulatory lawyers, the CRTC also opened file ‘2023-139’ on ‘registration’ of online undertakings, a colourless label for ‘which online media companies are too small to be regulated?’

The Commission asked everyone if there should be a $10 million threshold —referring to annual gross Canadian revenues earned by a domestic or foreign undertaking— below which a business would be exempted from registration and therefore from regulation.

Bids are coming in. Many are from media companies asking for the CRTC’s proposed $10 million to be raised so they can get under it. For example, the channel aggregator The Roku Channel wants to limbo under that bar.

The Independent Broadcasting Group of small Canadian programmers has filed the most interesting submission, pointing out that the CRTC seems to be creating an entry port not only for financial contributions to Canadian content but all regulatory issues.

The IBG’s most compelling point is that small programmers and online undertakings that fall well below a dollar-fixed registration requirement might be unable to take advantage of regulatory assistance, such as a complaint to the CRTC that they are being shut out from distribution from Roku or some other online platform. That’s would be a huge problem and C-11 observers will recall that a lot of legislative time was spent on securing access for small Canadian programmers to carriage on online platforms serving Canadian audiences.

Another registration-related issue is content regulation. Licensed broadcasters are subject to basic editorial codes in the Broadcasting Act’s 1986 television and radio regulations on ‘abusive comment’ and ‘equitable portrayal.’ Bill C-11 was drafted so that these regulations cannot be mapped over to social media platforms, but there is no jurisdictional bar to the CRTC creating something similar for streamers and other online platforms that control and curate their content.

What the CRTC may choose to do is an issue provoked earlier this year when Égale Canada filed a TV regulation complaint to the CRTC asking for Fox News to be kicked off of Canadian cable TV.

The merits of the case aside, this scenario will also arise online. The CRTC will have to figure out how and whether to apply the abusive comment TV regulation to online undertakings that broadcast to Canadians. It’s straightforward in the cable world: the CRTC can order the cable platforms to defenestrate the offending channel (as it did in the case of Russia Today). It’s more complex in an open Internet.

The reason this is all relevant to registration is that there will be small online undertakings making themselves available in Canada who would like nothing more than to test the boundaries of regulating ‘awful but lawful’ content. If they aren’t registered, they may not be accountable.

Another angle on this issue is that Bell and Corus have both asked the CRTC to exempt online news undertakings in their entirety. Fox News is an online undertaking too.

So the issue for the CRTC will be whether they will make sure that exemption from ‘registration’ is not an automatic exemption from all regulation.

Finally, one other issue that bubbled up in the submissions to the CRTC from foreign online undertakings. Far from humbly accepting their ‘win’ in the Heritage Minister’s direction to exclude social media creators and their programs from regulation, TikTok Canada wants its entire platform excluded from regulation even if they host media company content (or their own). Not even Meta or YouTube asked for that.

These observations are only from the first round of written submissions on ‘139’ registration issues. Experienced CRTC players normally hold back their most interesting comments for the rebuttal round of submissions, due June 27th. We’ll see what pops up.

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