The governments speech regulation bill is back. Formerly known as Bill C-10, it is now known as Bill C-11 or the Online Streaming Act.
We knew it was coming. At the start of the month, the Liberals said that it was coming. The next day, it appeared on the Notice Paper. Now, it is a reality.
As you might recall, Bill C-10 was about regulating user generated content and treating the Internet as just another broadcast TV station. It was hugely controversial from the text of the legislation all the way to how the law was handled. The government – especially the Heritage Minister at the time – personally attacked people who had criticisms of the legislation. At the same time, there was simply no credible response or defence of the legislation throughout the process. At the same time, the government was seemingly hell bent on passing this law regardless of how questionable the tactics were and disregarding anyone with questions all along the way.
Because of this dynamic, the debate felt less like a discussion about the pros and cons about the bill itself, but rather a war between the Canadian government and the Canadian people and supporters of the Internet and freedom of expression. What’s more, it was like the Canadian government was perfectly content with this arrangement and told Canada to “bring it on, we don’t care”.
Even as Bill C-10 died on the orderpaper when the election was called, a rematch seemed to be all but a sure thing. The political landscape pointed to a government similar to the current makeup with the prospects of a Liberal majority quickly evaporating. This was largely thanks to the lack of an ability for the Liberals to explain why the heck we went into an election in the first place. In the vacuum of a logical explanation, it led many to conclude that it was little more than a power grab. This rubbed people the wrong way and the election process concluded with a nearly identical government makeup (Liberal minority).
The consequences of this, however, was that the Liberals were largely free to initiate another round with their war on the open Internet. Given their belligerence during the last election, it seemed like we would eventually be back into the exact same scenario as before the election, but without the threat of time running out that saved the Internet the last time.
That leads us to today with the introduction of Bill C-11. If that number sounds familiar, during the last session of government, this was the privacy reform bill that the Liberals were seemingly trying to forget about. It also comes with a fresh coat of paint thanks to the shortened title, the “Online Streaming Act”. So, our expectations that we will continue to see the same threats as before to freedom of expression, but of course, we don’t know for sure until we actually read the bill – which is what this article is about.
What is An Online Undertaking?
The act starts off with some definitions. While this is generally quite boring, it is necessary to parse the words of what is being described.
Broadcasting Act
2 (1) The definitions broadcasting, broadcasting undertaking, distribution undertaking, network and programming undertaking in subsection 2(1) of the Broadcasting Act are respectively replaced by the following:broadcasting means any transmission of programs — regardless of whether the transmission is scheduled or on demand or whether the programs are encrypted or not — by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place; (radiodiffusion)
broadcasting undertaking includes a distribution undertaking, an online undertaking, a programming undertaking and a network; (entreprise de radiodiffusion)
distribution undertaking means an undertaking for the reception of broadcasting and its retransmission by radio waves or other means of telecommunication to more than one permanent or temporary residence or dwelling unit or to another such undertaking, but does not include such an undertaking that is an online undertaking; (entreprise de distribution)
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
online undertaking means an undertaking for the transmission or retransmission of programs over the Internet for reception by the public by means of broadcasting receiving apparatus; (entreprise en ligne)
So, as far as we can tell, a broadcasting undertaking basically involves a network or a more traditional network. For instance, if a television station decides to re-broadcast a television show over the Internet, that is still a broadcast undertaking. An online undertaking is just the act of broadcasting a show over the Internet. For instance, Freezenet publishing its own podcast fits the bill of an online undertaking. The language is a bit archaic, but a receiving apparatus could mean a computer, a cell phone, or any host of other devices capable of receiving and playing back said podcast. At least, that is how we interpret this here.
Then we have this:
Exclusion — carrying on broadcasting undertaking
(2.1) A person who uses a social media service to upload programs for transmission over the Internet and reception by other users of the service — and who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them — does not, by the fact of that use, carry on a broadcasting undertaking for the purposes of this Act.Exclusion — social media service and programming control
(2.2) An online undertaking that provides a social media service does not, for the purposes of this Act, exercise programming control over programs uploaded by a user of the service who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them.
For the first part, basically, if you post an animated GIF file of an existing show (and you didn’t actually produce said show in any way), then you aren’t undertaking a broadcasting undertaking. Whether this constitutes an online undertaking, however, the exclusion actually doesn’t say. This is surprisingly careful language from the get-go to say the least.
The second part seems to be pretty straight forward. The platform in question is not performing an online undertaking if one of their users uploads said animated GIF. It’s kind of a “well, duh” thing because they don’t actually exercise control over the online undertaking in the first place. So, the last part isn’t actually all that controversial that we can tell.
This next part is actually kind of interesting in that it seems to tee up later portions of the bill:
Exclusion — certain transmissions over the Internet
(2.3) A person does not carry on an online undertaking for the purposes of this Act in respect of a transmission of programs over the Internet
(a) that is ancillary to a business not primarily engaged in the transmission of programs to the public and that is intended to provide clients with information or services directly related to that business;
(b) that is part of the operations of a primary or secondary school, a college, university or other institution of higher learning, a public library or a museum; or
(c) that is part of the operations of a theatre, concert hall or other venue for the presentation of live performing arts.
So, if you happen to own a business and decide to post some video’s on the side, then that isn’t an online undertaking. What’s more is that if you decide to post a video as part of some educational material related to a school, then that isn’t actually an online undertaking. Finally, if you own a theatre and decide to post some video of part of your play online, that is also not an online undertaking. While reading this, we kind of find ourselves looking sideways at this because, why are these exceptions in the first place? If this bill isn’t about regulating speech in the first place (as proponents insist), then why is it necessary to carve out such specific exceptions to an online undertaking?
Requirements to Use Canadian Talent and Resources
What’s next is particularly interesting:
(4) Paragraphs 3(1)(f) to (h) of the Act are replaced by the following:
(f.1) each foreign online undertaking shall make the greatest practicable use of Canadian creative and other human resources, and shall contribute in an equitable manner to strongly support the creation, production and presentation of Canadian programming, taking into account the linguistic duality of the market they serve;
(g) the programming over which a person who carries on a broadcasting undertaking has programming control should be of high standard;
(h) all persons who carry on broadcasting undertakings have a responsibility for the programs that they broadcast and over which they have programming control;
So, from the Canadian governments perspective, the expectation is that non-Canadian podcasts needs to ensure the greatest use of Canadian talent and reflect the English and French languages of Canada. Now, why would someone in, say, Spain care about this in the first place? In the context of, say, podcasting for instance, we don’t really know.
Requirement to Promote Online Content
This section got our attention:
(7) Paragraphs 3(1)(o) to (s) of the Act are replaced by the following:
(r) online undertakings shall clearly promote and recommend Canadian programming, in both official languages as well as in Indigenous languages, and ensure that any means of control of the programming generates results allowing its discovery;
According to the Broadcasting Act, all of this falls under section 3 which states: “3 (1) It is hereby declared as the broadcasting policy for Canada that”. So, basically, this is a policy in Canada, not an actual law. So, unless we are missing something, this isn’t necessarily law, but rather, what is highly recommended.
Is User Generated Content Regulated?
The million dollar question seems to be, at least, in part, answered shortly after that.
Non-application — programs on social media service
4.1 (1) This Act does not apply in respect of a program that is uploaded to an online undertaking that provides a social media service by a user of the service for transmission over the Internet and reception by other users of the service.
Hallelujah! Section 4.1 is finally back. It exempts user generated content! It’s exactly what the users have called for from the very beginning! Wait a second, what’s this after that?
Application — certain programs
(2) Despite subsection (1), this Act applies in respect of a program that is uploaded as described in that subsection if the program
(a) is uploaded to the social media service by the provider of the service or the provider’s affiliate, or by the agent or mandatary of either of them; or
(b) is prescribed by regulations made under secÂtion 4.2.Non-application — social media service
(3) This Act does not apply in respect of online undertakings whose broadcasting consists only of programs in respect of which this Act does not apply under this section.
For greater certainty
(4) For greater certainty, this section does not exclude the application of this Act in respect of a program that, except for the fact that it is not uploaded as described in subsection (1), is the same as a program in respect of which this Act does not apply under this section.
Regulations — programs to which this Act applies
4.2 (1) For the purposes of paragraph 4.1(2)(b), the Commission may make regulations prescribing programs in respect of which this Act applies.
(emphasis mine)
Huh??? What is the deal with all this garbage that is now tacked on at the end? So, basically, you have to follow Section 4.1 to the letter. Otherwise, it does not apply to you. So, Section 4.1 basically says that if you upload your program to a service. Then, that service distributes it strictly for the purpose of performing a social media purpose. After that, it is received by users of that social media service, then you are fine and dandy.
So, how do you run afoul of this? Well, and example might be that you post your podcast to a personal blog. It’s no longer a social media platform you are posting to and, therefore, you are no longer sharing your podcast to a user on a social media service. Therefore, you run afoul of this section and you are going to get heavily regulated.
Another example is this (and this does happen a lot online): if you upload a podcast and let subscribers of a premium service view or listen to that podcast or video, then you also run afoul of this. As such, you are regulated.
What if you have ads in your podcast? Then you are regulated. What if you sell subscriptions? You are regulated.
You really can get a headache trying to parse the language of this section, though. Exceptions to exceptions and flip-flops on the language… it’s enough to make anyone’s head spin. What I described above is how I ended up interpreting this word salad of a subsection.
Meanwhile, the last big about the “Commission”, this is in reference to the CRTC (The Canadian Radio-television and Telecommunications Commission), so when it comes to making up further rules about this, that is up to them after.
Further Control Handed to the CRTC
Of course, the CRTC references do not end there:
Matters
(2) In making regulations under subsection (1), the Commission shall consider the following matters:
(a) the extent to which a program, uploaded to an online undertaking that provides a social media service, directly or indirectly generates revenues;
(b) the fact that such a program has been broadcast, in whole or in part, by a broadcasting undertaking that
(i) is required to be carried on under a licence, or
(ii) is required to be registered with the Commission but does not provide a social media service; and
(c) the fact that such a program has been assigned a unique identifier under an international standards system.
Exclusion
(3) The regulations shall not prescribe a program
(a) in respect of which neither the user of a social media service who uploads the program nor the owner or licensee of copyright in the program receives revenues; or
(b) that consists only of visual images.
So, the CRTC is free to start regulating user generated content as long as it’s not a slide show of just pictures, or that there is no financial gain at all. Otherwise, user generated content is fair game. A lot of this section, though, requires a fair bit of knowledge about the basics of creating user generated content.
For instance, the seemingly confusing “unique identifier”. When someone uploads content, a URL could technically be a “unique identifier” assigned to the program. Let’s take, for instance, a YouTube video. We uploaded a video of us just talking about the XBox360. When we uploaded that video, a URL is generated by YouTube so that users can point to the video afterwards when they want to view that video. The URL is this:
https://www.youtube.com/watch?v=prUMtPD68WE
So, for us, the “Unique Identifier” would technically be “prUMtPD68WE”. The last question is, is a URL an “international standards system”? We can safely say that, yes, it is. Judging by the Wikipedia page:
Internationalized URL
Internet users are distributed throughout the world using a wide variety of languages and alphabets and expect to be able to create URLs in their own local alphabets. An Internationalized Resource Identifier (IRI) is a form of URL that includes Unicode characters. All modern browsers support IRIs. The parts of the URL requiring special treatment for different alphabets are the domain name and path
Of course, YouTube is far from unique in this regard. Or December year end special was assigned a “unique identifier” by Anchor. The URL is this:
https://anchor.fm/drew-wilson33/episodes/Freezenet-Podcast-December-2021-The-Year-End-Special-e1d0k3b
In this regard, our unique identifier is this “Freezenet-Podcast-December-2021-The-Year-End-Special-e1d0k3b”.
In fact, every service that you can upload content to does this. It is normal and has been since the beginning of the web. You aren’t getting away from that. So, what does this mean? Any service can be subject to the CRTC’s own discretion and rule making.
Exception to Algorithms
We next see the following:
Restriction — computer algorithm or source code
(8) The Commission shall not make an order under paragraph (1)(e) that would require the use of a specific computer algorithm or source code.
This is probably good news. In other words, the CRTC can’t tell, for instance, Google, to run a specific algorithm on its YouTube site. Now, whether or not they can tell Google to ensure certain kinds of content are prominent on the front page is a different matter entirely (as far as this section is concerned). In other words, the CRTC could say, “We can’t tell you what systems to put in place, but we want [x] content to appear anyway.” As far as this exception is concerned, that is actually on the table here.
Lip Service Paid to Freedom of Expression?
A little while later, we see the following:
12 The Act is amended by adding the following after section 10:
For greater certainty
10.1 For greater certainty, the Commission shall make orders under subsection 9.1(1) and regulations under subsection 10(1) in a manner that is consistent with the freedom of expression enjoyed by users of social media services that are provided by online undertakings.
The language is actually very careful here. What we see is that, rather than the CRTC needing to abide by Canadian’s generally accepted definitions of freedom of expression, but rather, the CRTC needs to be in line with the kind of freedom of expression consistent with what they experience on social media platforms. That is a pretty significant loophole here. So, if it is standard practice to bleep out expletives on social media platforms, then the CRTC can say that bleeping out expletives on social media platforms is a freedom of expression standard. It’s a very different bar than just being consistent with standard expectations surrounding freedom of expression.
No Licensing Requirements
One of the concerns I personally had was whether or not the CRTC would start running around demanding licenses and fees to anyone making a podcast. Based on the following paragraph, the answer appears to be “no”:
Exception — online undertaking
(2) Despite subsection (1), a person may carry on an online undertaking without a licence and without being so exempt.
As far as I can tell, that pretty much means what can easily be read here. If you are a podcaster, you aren’t being asked to take out a broadcasting license here. So, we got that going for us which is nice.
Conclusions
For lawmakers, this bill is long on promises and short on delivery. In fact, it is entirely possible that some sections were written simply with the political end-goal of misleading the public. For instance, people might criticize Bill C-11 that it regulates user generated content. A theoretical response is that with Section 4.1 being restored, it does no such thing. While technically, this would be true, the added section tacked on pretty much cancels this for a vast majority of cases. This is simply because it envisions a very particular non-commercial use while saying that anything that happens to fall slightly outside of this exception no longer dodges heavy government regulation.
What’s more is that this bill hands substantial power over to the CRTC (which critics argue has made numerous anti-consumer decisions in other areas in the past). The section mentioning the “unique identifier” is an example of how the CRTC can then start regulating user generated content (and, therefore, speech) and envision any rules they like. Really, the sky is the limit here. The fact that a URL actually has to be generated in order for it to be properly hosted means that uploading this anywhere means the CRTC can start regulating away.
Being a content creator today is difficult enough – especially when your resources are highly limited and you are just starting out. The fact that this legislation can throw down a legal gauntlet for anyone even thinking about making a dime would certainly make the content creation process more discouraging. After all, if you wanted to create something and you know that you will get hit with heavy regulations the moment you made a single penny, would you even bother? Probably not. The last thing legislation needs to do is actively discourage the creation of content made in Canada – and Bill C-11 does exactly that.
For us, reading this bill made us hugely disappointed, but at the same time, it’s not surprising either. The Canadian government, for years, wanted to regulate user generated content. The government wants a hand in deciding which content Canadians get to view on social media. While the act doesn’t tell platforms to insert specific code, it does let them demand what end results should be. In other words, the government is saying, “I don’t care how your algorithms arrive to their conclusions, just make sure video/podcast of our choosing happens to come out on top.”
Because of this, Canadian’s who make content will inherently see their content demoted. If it’s not on some white list, for instance, then it will inherently be left relegated several pages over where users won’t find them. At a best case scenario, Canadians will have to find success with international audiences – and even then, they better hope no money changes hands in the process (and a number of platforms indirectly make money anyway, making that prospect far more difficult from the very beginning). While it is a gift to legacy corporations, it simply leaves a large swath of Canadian creators high and dry.
Drew Wilson on Twitter: @icecube85 and Facebook.
