CRTC Pushes to Enforce Bill C-10 Provisions Despite Lack of Passage

Bill C-10 is all but dead at this stage. Apparently, that isn’t stopping the CRTC from enforcing some of the provisions anyway.

Late last month, Bill C-10 got sent to the senate committee. It was a huge moment because it meant that the legislation failed to pass before the break. This after an overwhelming response from Canadians who spoke out against the legislation. With speculation rampant that an election is going to happen during the break, it would mean that the bill is going to die. This speculation of an election has the supporting fact that the Canadian government is rolling out huge promises to Canadians in order to make themselves look as attractive as possible ahead of any possible election.

So, while Canadians are celebrating the potential death of Bill C-10, it seems that the government has launched yet another plot to circumvent democracy. Reports are surfacing that says that Canadian regulator, the CRTC, is trying to enforce provisions in Bill C-10 despite the fact that the legislation failed to pass. The idea is partly to pretend that passage did happen in the first place and start regulating accordingly. For critics, for a regulator that seems to be so heavily captured by the very corporations they are charged to with regulating, this is probably not a surprise to them.

Reportedly, corporate lobbyists from the culture sector are pushing the CRTC to not only enforce provisions in the legislation, but also to expand on this enforcement as well. From Michael Geist:

Bill C-10 may be dead for now (Senate discussions on returning during the summer will reportedly not include the bill), but CRTC Chair Ian Scott has signalled a willingness to move ahead with Bill C-10-like policies. In fact, even without legislative reform, the CRTC last week announced that it is re-opening its approach to a digital media survey by seeking to expand it to cover foreign streaming services. The decision is notable for several reasons, not the least of which is that the survey would overlap with the data disclosure provisions in Bill C-10 and Scott had previously indicated that he did not believe he had the legislative tools to require data disclosures.

Despite that admission, last week the CRTC quietly tried to replicate Bill C-10’s data gathering powers without the benefit of actual legislative reform. As part of the 2019 Harnessing Change report, the CRTC concluded that it needed more data in order to better understand the evolution of digital media. It designed an annual digital media survey and sought feedback on its approach. The proposed survey was limited to licensed broadcasting undertakings and expressly excluded foreign online streaming services (arguably a tacit admission that it did not have the regulatory power to enforce mandated disclosures):

The Commission intends to launch a new, annual digital media survey, to be part of its Annual Broadcasting Survey for the fall of 2019. The survey would be administered to all currently licensed Canadian broadcasting undertakings (radio, television and distribution) in order to collect financial information on their digital media broadcasting activities for the 2018-2019 broadcast year, using the Commission’s data collection system. As such, the survey would not be administered to any non-Canadian digital media broadcasting undertakings that provide services in Canada, or to any Canadian digital media broadcasting undertakings that are not associated with a licensed undertaking.

That consultation generated over 20 responses with many in the Canadian culture lobby (such as ACTRA and the CMPA) arguing that it should be expanded to cover foreign Internet streaming services. Others such as Rogers called for the survey to be dropped altogether, while the CBC expressed concerns about the release of the data, arguing that “we do not believe that any data should be made public even in aggregate form unless and until the Commission obtains the same date [sic] from the dominant non-Canadian players.” While many called for expanded survey coverage, the Forum for Research and Policy in Communications (FRPC) injected some realism into the process:

While the DMEO applies to Canadian online programming services, it does not apply to foreign online programming services, as the scope of the CRTC’s authority to issue exemption orders is limited to classes of licence. While it has full jurisdiction over broadcasters operating “in part” in Canada and has the power to define classes of licence, the Direction to the CRTC (Ineligibility of Non-Canadians) specifically prevents the CRTC from issuing licences to foreign programming undertakings. As a result, foreign programming undertakings (online or ‘conventional’ over-the-air and satellite delivered services) cannot under the Direction be part of a class of licence that the CRTC may exempt from the requirements of Part II of the Act. The Forum believes that the Governor in Council (GIC) must modify the Direction to the CRTC (Ineligibility of Non-Canadians) to permit the CRTC, by amending the DMEO, to collect information from foreign online programming services operating in part in Canada.

In other words, the CRTC does not have the power to compel disclosure from the foreign services, something even Scott hinted at last month. Yet despite the legal limits (which played out years ago in a showdown over CRTC demands that Google and Netflix disclose data), the CRTC is apparently determined to march ahead.

There is probably a silver lining in all of this is the fact that the speech regulation aspect – the biggest focal point for criticism – doesn’t appear to be the target for now. Instead, it appears to be all about the data gathering aspect which is something we previously flagged in the analysis. For lobbyists, some of them are not a big fan of simply applying this data gathering to Canadians and disclosing it. Instead, they want to see it all get gathered and disclosed.

Geist comments that this points to the CRTC itching to flex its regulatory muscle even without the reforms giving it the mandate to do so.

From our perspective, this is likely an effort to start implementing Bill C-10 ahead of time. So, if the Liberals do win the next election, they can simply table the legislation, fast track it, shut down debate, eliminate as much common sense and criticism from the process like last time, and pass it. When the legislation is passed, then the CRTC can effectively “hit the ground running” so to speak. If the CRTC can start collecting information ahead of the legislation, implementing the speech regulation aspects later would only require minimal adjustment.

This determination to pass this legislation is unprecedented in the world of digital rights. We’ve already been in uncharted territories with the gag orders and the super motion. This latest development keeps us going into even further uncharted territories: enforcing a law that did not pass. It’s certainly sickening to say the least.

To be clear, this is still in the “consultation” phase. So, this hasn’t happened yet. Still, it shows where the process is heading – and it’s not heading to the grave of Bill C-10 like it should be headed.

Drew Wilson on Twitter: @icecube85 and Facebook.

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