Canada’s Bill C-10 Secret Speech Regulation Bill Made Public – A Quick Analysis

After being shrouded in secrecy, the current version of Bill C-10 was finally made public. We offer a quick analysis of the legislation.

Late last week, MP’s passed Bill C-10 in committee in a secret and rushed process. Amendments were voted on in rapid succession with debate about each amendment banned in committee. To make matters worse, the bill was also voted on and the public was explicitly kept in the dark about it.

Obviously, this is a political tactic that is desperately trying to keep the public from knowing what laws are being passed. After all, the more the public is aware of the legislation, the more serious questions get raised about this legislation – and the more people realize what a bad bill it ultimately is.

Since the government clearly has a reason to hide this legislation as best as it can, we decided to offer a quick analysis to get as much noteworthy information about this bill out there as quickly as possible.

So, the version we are using is this version as it appears to be the amended version.

Section 2.1 and Why It Still Means User Generated Content is Regulated

The first place to start, and the source of a huge amount of misinformation being pushed, is the notorious Section 2.1. It reads as follows:

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.

From what we can tell, this is a word-for-word copy of the previous version of this bill. As we covered, this simply means that the person who is posting the content online is not subject to regulation. However, the content that the person posted is still subject to regulation. Essentially, this aspect has not changed.

Section 2.2 reads as follows:

Exclusion — transmission over the Internet
(2.‍2) A person does not carry on a broadcasting undertaking for the purposes of this Act whose transmission of programs over the Internet is

(a) ancillary to a business not primarily engaged in the transmission of programs to the public and is intended to provide information or services to clients;

(b) part of the operations of a primary or secondary school board, college, university or other institution of higher learning, a public library or a museum; or

(c) part of the operations of a theatre, concert hall or other venue for the presentation of live performing arts.

In short, if you are part of a business who isn’t primarily focused on posting stuff online, part of an educational operation, or part of a theatre, concert, or similar venue, then the laws don’t apply to you. This really is an extremely narrow exception that really has little to no impact on user generated content. It’s great news if you are part of the education or business system, but for everyone else, you are clearly out of luck. You will get regulated.

For a little bit, on first blush, we didn’t find much that was relevant to everyday users until we get to this:

Platforms Being Required to Contribute to Canadian Content

(3) 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, in accordance with the objectives of the broadcasting policy set out in this subsection and 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;

This appears to be a reference to online platforms being asked to fork over money to various Canadian content creation funds. The problem here is that it seemingly requires platforms to offer bilingual content. It’s problematic because there are many content creators that only offer content in one language. That alone runs the risk of excluding some Canadian content because not everyone has the resources to translate everything they produce into French (or, if they are French, translate everything into English).

The confusing part of this section is the fact that the law demands that content be of “high standard”. What that exactly means is unclear and seemingly left vague. It’s possible that this could be used to exclude some content by saying, “this content is not of high standard, therefore, we ask the platforms to demote that content.” We’re not entirely sure of this, but that’s the best way we can interpret it.

An Unclear Section

Another section that appears cryptic at first is this:

(4) Subparagraphs 3(1)‍(i)‍(i) and (ii) of the Act are replaced by the following:

(i) be varied and comprehensive, providing a balance of information, enlightenment and entertainment for people of all ages, interests and tastes,

(ii) be drawn from local, regional, national and international sources, including, at the local level, from community broadcasters who, through collaboration with local organizations and community members, are in the unique position of being able to provide varied programming to meet the needs of specific audiences,

The text here is incomplete. So, we dug up the Broadcasting Act to try and get a clearer picture. What we found is this:

Broadcasting Policy for Canada

Marginal note:Declaration

3 (1) It is hereby declared as the broadcasting policy for Canada that

(i) the programming provided by the Canadian broadcasting system should

(i) be varied and comprehensive, providing a balance of information, enlightenment and entertainment for men, women and children of all ages, interests and tastes,

(ii) be drawn from local, regional, national and international sources,

The second block quote above is the part that is being replaced, but the first quote above is the context. It looks like it applies to government operations, so it may not apply to user generated content. Unfortunately, we aren’t entirely sure of this because of the section right after:

(4.‍1) Paragraph 3(1)‍(i) of the Act is amended by adding the following after subparagraph (ii):
(ii.‍1) include programs produced by Canadians that cover news and current events — from the local and regional to the national and international — and that reflect the viewpoints of Canadians, including the viewpoints of Indigenous persons and of Canadians from racialized communities and diverse ethnocultural backgrounds;

So, if you cover news, does that mean you have to consult the viewpoint of every ethnicity out there or is this saying that the system encourages this? We’re not entirely sure which way this is going here.

Requirements for Discoverability of Canadian Content

Next up is section 6:

(6) Paragraphs 3(1)‍(o) to (s) of the Act are replaced by the following:

(q) online undertakings that provide the programming services of other broadcasting undertakings should

(i) ensure the discoverability of Canadian programming services and original Canadian content, including French language original content, in an equitable proportion, and

(ii) when programming services are supplied to them by other broadcasting undertakings under contractual arrangements, provide reasonable terms for the carriage, packaging and retailing of those programming services;

(r) online undertakings must clearly promote and recommend Canadian programming, in both official languages as well as Indigenous languages, and ensure that any means of control of the programming generates results allowing its discovery; and

3 [Deleted]

The section in the Broadcasting Act that is relevant is this:

(o) programming that reflects the aboriginal cultures of Canada should be provided within the Canadian broadcasting system as resources become available for the purpose;

(p) programming accessible by disabled persons should be provided within the Canadian broadcasting system as resources become available for the purpose;

(q) without limiting any obligation of a broadcasting undertaking to provide the programming contemplated by paragraph (i), alternative television programming services in English and in French should be provided where necessary to ensure that the full range of programming contemplated by that paragraph is made available through the Canadian broadcasting system;

(r) the programming provided by alternative television programming services should

(i) be innovative and be complementary to the programming provided for mass audiences,

(ii) cater to tastes and interests not adequately provided for by the programming provided for mass audiences, and include programming devoted to culture and the arts,

(iii) reflect Canada’s regions and multicultural nature,

(iv) as far as possible, be acquired rather than produced by those services, and

(v) be made available throughout Canada by the most cost-efficient means;

(s) private networks and programming undertakings should, to an extent consistent with the financial and other resources available to them,

(i) contribute significantly to the creation and presentation of Canadian programming, and

(ii) be responsive to the evolving demands of the public; and

What is particularly noteworthy is the amount of regulation that is being lifted by striking all of what is currently in the act out. Then, what the bill replaces it basically means that online “undertakings” get a pile of new regulations they must comply to. This includes making sure content being promoted is bilingual. What’s more, the recommendation must be not only in both official languages, but also delivered in indigenous languages. This potentially excludes quite a large portion of users who create user generated content. We’re not aware of traditional media outlets being forced to have such an obligation even. A very strong case can b made here that this is overly burdensome to online creators and unfairly targeted as well.

No Licensing Requirements for Online Content

Another relevant section is the following:

6 (1) Paragraphs 9(1)‍(a) to (h) of the Act are replaced by the following:
(a) establish classes of licences other than for online undertakings;
(b) issue a licence, the term of which may be indefinite or fixed by the Commission;
(c) amend a licence as to its term, on the application of the licensee;
(d) amend a licence other than as to its term, on the application of the licensee or on the Commission’s own motion;
(e) renew a licence, the term of which may be indefinite or fixed by the Commission; and
(f) suspend or revoke a licence.

The wording is a bit tricky, but it looks like online undertakings won’t have to get a license. There was some fear that an amendment meant that you needed a license to post anything online, but this section looks like that won’t happen.

Sweeping New Powers for the CRTC To Regulate User Generated Content

7 The Act is amended by adding the following after section 9:

Conditions

9.‍1 (1) The Commission may, in furtherance of its objects, make orders imposing conditions on the carrying on of broadcasting undertakings that the Commission considers appropriate for the implementation of the broadcasting policy set out in subsection 3(1), including conditions respecting

(e.‍2) the expenditures to be made by persons carrying on broadcasting undertakings for the purposes set out in subsection 11.‍1(1);

(i.‍1) in relation to online undertakings that provide a social media service, the discoverability of Canadian creators of programs;

(j) the provision to the Commission, by persons carrying on broadcasting undertakings, of any other information that the Commission considers necessary for the administration of this Act, including

(i) financial or commercial information,

(ii) information related to programming,

(iii) information related to expenditures made under section 11.‍1,

(iv) information related to audience measurement, other than information that could identify any individual audience member, and

(v) other information related to the provision of broadcasting services;

The section is quite large, but we pared it down to the relevant sections because of this section below:

Exception — online undertaking
(3.‍1) Orders made under this section, other than orders made under paragraph (1)‍(e.‍2), (i.‍1) or (j), do not apply in respect of programs that are uploaded to an online undertaking that provides a social media service by a user of the service — if that user is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them — for transmission over the Internet and reception by other users of the service.

So, in order to make things easier, we are showing what sections the CRTC can use to enforce people who upload content. In short, there is a lot of information the CRTC can legally demand from people who upload content. The powers are obviously very sweeping here.

There is this extremely tiny bone being thrown to online creators, though:

(3.‍2) For greater certainty, paragraph (1)‍(i.‍1) shall be construed and applied in a manner that is consistent with the freedom of expression enjoyed by users of social media services provided by online undertakings.

We boldfaced the section this is referring to. It’s really not much of an added protection, here. All it protects is from a provision talking about the discoverability of Canadian content. That’s it.

Programming Control Clarification Between Platforms and User Content

Then there is this section:

Programming control — social media service
9.‍2 An online undertaking that provides a social media service is deemed not to exercise programming control over programs uploaded by any user of the social media service who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them.

So, the person who uploads the content is the person in control of the content, not the platforms themselves.

Unclear Specifications on What Constitutes Canadian Content

One question about C-10 we’ve had for a while is what constitutes Canadian content. This next section, well, doesn’t really clear that up by much:

(3) Paragraph 10(1)(b) of the Act is replaced by the following:
(b) prescribing what constitutes a Canadian program for the purposes of this Act and, in doing so, shall consider
(i) whether Canadians own and control intellectual property rights over Canadian programs for exploitation purposes, and retain a material and equitable portion of their value,
(ii) whether key creative positions are primarily held by Canadians,
(iii) whether Canadian artistic and cultural content and expression are supported,
(iv) whether, for the purpose of subparagraph (i), online undertakings and programming undertakings collaborate with:
(A) independent Canadian producers,
(B) a Canadian broadcaster producing its own content, or
(C) a producer affiliated with a Canadian broadcaster, and
(v) any other matter as directed by the Governor in Council;

It looks like the content has to track whether a Canadian owns the intellectual product. The content in question has to be created by a team with Canadians in key positions. What position is considered “key” is not mentioned. Another aspect is if Canadian artistic expression is supported. We suspect this has to do with significant references in Canada (such as a setting being located in Canada). Unfortunately, it’s not clear what is meant by this. Additionally, online content has its own set of rules as well.

While this, on the surface, sounds like this clears things up. The reality is, so much is left for interpretation. So, practically speaking, if we, say, produce a video talking about a video game, is that Canadian content? We don’t really know. On the one hand, our commentary adds a Canadian perspective. Additionally, the video itself is produced in Canada. However, the subject may not be Canadian content. For Fair Dealing purposes, the content is legal because we are producing content for journalistic and educational purposes. So, if the subject is not necessarily Canadian ,do we run afoul of (iii)?

At the end of the day, while it’s possible to get an educated guess in all of this, that’s the best you can get out of this legislation. There is nothing here that really helps with the nitty gritty details. The problem here is that everything eventually boils down to those details. So, we don’t know just based on this reading alone would would and wouldn’t really qualify. Over top of that, what will the CRTC enforce in the first place? We don’t know.

A Review Every 5 Years

There is quite a gap of content that doesn’t really appear relevant to what we were concerned about (namely, anything respect to online content). After some reading and scrolling, we came across this:

Review of Act
46.‍1 (1) During the fifth year after this section comes into force, and every five years after that, a comprehensive review of the provisions and operation of this Act must be undertaken by the committee of the Senate, of the House of Commons or of both Houses of Parliament, that is designated or established for that purpose.

So, there will be reviews held every 5 years. Since this legislation isn’t necessarily getting a thorough review now thanks to the shut down of debate, the first time this legislation will get a thorough review is going to be in 2026. That’s quite a long time to wait before people can finally ask questions in an effective manner.

Conclusions

If anyone out there is saying that Bill C-10 doesn’t touch user generated content, this review pretty much disproves that with a mountain of examples. Simply put, this legislation grants the CRTC sweeping powers for online content. It compels platforms to promote Canadian content. Then, it throws down a pile of hurdles for content to be qualified as “Canadian”. What’s more is that even if you do manage to get your content qualified as “Canadian”, the CRTC has the power to ask for quite a bit of information about what you are doing including internal statistics and financial information to name two examples.

To make matters even worse, what qualifies as “Canadian content” is actually quite unclear. The only thing that is clear is if its content made by a Canadian, the intellectual property of that content is owned by a Canadian, and it covers Canadian related content, then you have a very good chance of having that content qualify as Canadian content. While there is some grey area’s afforded when it comes to partial ownership, good luck trying to determine if the content you produce qualifies. It isn’t really all that clear thanks to contradictory requirements seemingly designed to filter out a lot of content one can produce.

Some supporters might point to sections that point out that certain requirements doesn’t touch “online undertakings”, but those exceptions are actually extremely narrow and don’t add many protections. The only thing we were able to find that seems to offer some protection is the fact that you don’t need a license to upload a cat video. Beyond that, you are basically on your own with a nice pile of rules and regulations popping up that you have to navigate.

One thing to remember is that this analysis is made quickly mainly because this legislation is being rammed through quickly. We put this together pretty much as quickly as our fingers could type and as fast as my mind can comprehend this thick sludge of words. So, if you’d like to offer thoughts and additional analysis, feel free. Even if we missed something, we welcome it because this legislation is practically hot off the press. Otherwise, we hope you find what we were able to find in this legislation informative and look forward to your thoughts on all of this.

Drew Wilson on Twitter: @icecube85 and Facebook.




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