Hits and Misses: Heritage Minister tweaks C-11 instructions to the CRTC

Heritage Canada Facebook Page

November 15, 2023

This week Heritage Minister Pascale St.-Onge finalized the federal government’s policy direction to the CRTC on key points of cultural regulation flowing from Bill C-11, the Online Streaming Act.

The Minister’s amendments to the Policy Direction, first issued in draft by her predecessor Pablo Rodriguez in June, were few and subtle.

The two most meaningful changes were made to paragraph 8 of the Direction, listing the ways in which the Commission ought to impose regulatory obligations upon Canadian and foreign broadcasters, in a “flexible and adaptable framework.” That’s regulatory semaphore for “don’t overdo it.”

St.-Onge’s first tweak was to add the simple words “where appropriate” to the existing requirement to “minimize the regulatory burden on the Canadian broadcasting system” in paragraph 8(a).

The original text from last June had been seized upon by both foreign streamers and Canadian broadcasters as the Minister telling the Commission to reduce the costs of Canadian content obligations. A chorus of cultural groups responded that Rodriguez’s Policy Direction said no such thing —and there were no amendments to Bill C-11 suggesting that the reduction of costs is part of the Commission’s mandate— and the Minister’s Direction was only referring to administrative burdens, i.e. paperwork.

St.-Onge’s “where appropriate” doesn’t necessarily resolve that argument, but it does appear to soften whatever section 8(a) means.

Her second tweak was to add a new paragraph 8(g) stating the CRTC should “where appropriate, foster collaboration between Canadian and foreign broadcasting undertakings.”

This new text in the Policy Direction appears to come out of left field but is in fact directly responsive to Bell’s previously unsuccessful efforts to amend the legislation in a way that would empower the Commission to incentivize Netflix (and other streamers) to retail premium content through co-production or joint venture with Canadian broadcasters like Bell. MediaPolicy wrote about that proposal last year here and here.

The most notable omission among the St.-Onge’s amendments to the Policy Direction was a revised guideline on the discoverability of Canadian content in Paragraph 6. As discussed previously in this space, Rodriguez’s Policy Direction ignored the clear mandate in section 3(1)(r) of Bill C-11 for the CRTC to instruct streamers to “make recommendations” of Canadian content on their platforms to subscribers. This is of special importance to the availability of French language music, significantly under represented in the consumption of audio content distributed by Spotify and other major streamers.

St.-Onge has left Paragraph 6 untouched. On the other hand —and it’s difficult to discern whether this is connected to the Direction’s silence on content recommendations— St.-Onge added a new subparagraph 12(f) telling the Commission to “ensure that expenditure requirements [for broadcasters and streamers] support the creation and availability of programming in French, in recognition of the minority context of French in Canada and North America and the specific challenges involved with creating and making available original French language programming.”

One last notable change in the Policy Direction is that any reference to strengthening programming for Black and racialized Canadians has been broadened to include all “equity-seeking and ethnocultural groups.”

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